TRANSCRIPT OF RECORD 
 
 SUPREME COURT OF THE UNITED STATES. 
 
 OCTOBER TERM, 1905. 
 
 No. 7, Original. 
 
 THE STATE OF KANSAS, COMPLAINANT, 
 
 VS. 
 
 THE STATE OF COLORADO ET AL., AND THE UNITED 
 STATES, INTER' VENOR. 
 
 IN EQUITY. 
 
 VOL. I. 
 
 BILL FILED MAY 20, 1901. 
 
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 SUPREME COURT OE THE UNITED STATES. 
 
 OO I OBER TERM, 1905. 
 
 No. 7, Original. 
 
 THE STATE OP KANSAS, COMPLAINANT, 
 
 VS. 
 
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 THE STATE OF COLORADO ET AL., AND THE UNITED 
 STATES, INTER’ VENOR. 
 
 IN EQUITY. 
 
 INDEX. 
 
 Page. 
 
 Caption 1 
 
 Minute entry of submission of motion for leave to file bill of complaint . . 1 
 
 Notice of motion for leave to file bill of complaint 1 
 
 Motion for leave to file bill of complaint 2 
 
 Order granting leave to file bill of complaint. 6 
 
 Bill of complaint 6 
 
 Appearance for complainant 20 
 
 Subpoena issued 20 
 
 Subpoena and marshal’s return . 20 
 
 Order granting leave to file demurrer 23 
 
 Demurrer to bill of complaint 23 
 
 Order granting leave to file briefs and assigning cause for argument 25 
 
 Motion to enlarge time for argument, &c 25 
 
 Order to enlarge time for argument, &c 27 
 
 Appearance for defendant 27 
 
 Order beginning hearing on demurrer 28 
 
 Order concluding hearing on demurrer 28 
 
 Order overruling demurrer 28 
 
 Opinion on demurrer 29 
 
 Judd & Detweiler (Inc.), Printers, Washington, I). C., October 26, 1905. 
 
 709553 
 
n 
 
 INDEX. 
 
 Order granting leave to file answer, &c 
 
 Stipulation as to filing answer 
 
 Answer to bill of complaint 
 
 Appearance for defendant 
 
 Appearance for complainant 
 
 Appearance for complainant 
 
 Motion for leave to amend bill • 
 
 Order granting leave to file amended bill, &c 
 
 Stipulation as to manner of pleading 
 
 Amended bill of complaint 
 
 Appearance for defendant The State of Colorado 
 
 Subpoena and marshal’s return 
 
 Order granting leave to file answers of The State of Colorado and The 
 
 Graham Ditch Co 
 
 Answer of The State of Colorado to amended bill 
 
 Answer of The Graham Ditch Co. to amended bill 
 
 Appearance for Rocky Ford Canal, Reservoir, Land, Loan and Trust Co. 
 
 et al . . . 
 
 Order granting leave to file answer of The Arkansas Valley Sugar Beet and 
 
 Irrigated Land Co 
 
 Order granting leave to file answer of The Fort Lyon Canal Co 
 
 Order granting leave to file answers of The Rocky Ford Canal, Reservoir, 
 
 Land, Loan and Trust Co. et al 
 
 Answer of the Arkansas Valley Sugar Beet and Irrigated Land Company. . 
 
 Answer of The Fort Lyon Canal Company 
 
 Answer of The Rocky Ford Canal, Reservoir, Land, Loan and Trust Co. 
 
 et al 
 
 Order granting leave to file answer of The Colorado Fuel and Iron Co 
 
 Answer of The Colorado Fuel and Iron Co 
 
 Order as to pleading 
 
 Stipulation as to pleading 
 
 Motion for leave to file replications. ... 
 
 Order granting leave to file replications . 
 
 Replication to answer of The State of Colorado 
 
 The Graham Ditch Co 
 
 The Arkansas Valley Sugar Beet and Irrigated 
 
 Land Co 
 
 The Fort Lyon Canal Co. 
 
 The Rocky Ford C., R., L., L. & T. Co 
 
 The Catlin Consolidated Canal Co 
 
 The Oxford Ditch Co 
 
 The Laguna Canal Co 
 
 The Colorado Fuel and Iron Co 
 
 Motion on behalf of the United States for leave to intervene 
 
 Notice of motion for leave to intervene 
 
 Minute entry of submission of motion for leave to intervene 
 
 Order granting leave to file motion to dismiss, &c 
 
 Motion on behalf of The Arkansas Valley Sugar Beet and Irrigated Land 
 
 Co. et al. to dismiss 
 
 Notice of motion to dismiss 
 
 Order granting leave to The United States to intervene 
 
 Page 
 
 45 
 
 45 
 
 46 
 58 
 
 58 
 
 59 
 
 59 
 
 60 
 60 
 62 
 
 76 
 
 77 
 
 79 
 
 79 
 
 101 
 
 123 
 
 124 
 
 124 
 
 124 
 
 125 
 153 
 
 163 
 
 189 
 
 190 
 208 
 
 209 
 
 210 
 210 
 211 
 213 
 
 215 
 
 217 
 
 219 
 
 221 
 
 223 
 
 225 
 
 227 
 
 229 
 
 230 
 
 231 
 231 
 
 231 
 
 233 
 
 234 
 
INDEX. m 
 
 Paste 
 
 Petition of intervention on behalf of The United States 235 
 
 Appearance for complainant 240 
 
 Motion for leave to file answer to intervention 241 
 
 Order granting leave to file answer to intervention .... 241 
 
 Answer of The State of Kansas to the petition of intervention on behalf of 
 
 The United States 242 
 
 Minute entry of submission of motion to dismiss 242 
 
 Order postponing motion to dismiss to the hearing on the merits 243 
 
 Motion for appointment of special commissioner to take testimony .... 243 
 
 Order appointing special commissioner and fixing time to take testimony. . 244 
 
 Motion for leave to print and file abstract of evidence 245 
 
 Order granting motion for leave to print and file abstract of evidence, &c. . 246 
 
 Stipulation as to taking testimony 246 
 
 Order as to taking testimony 247 
 
 Motion to assign case for argument, &c. ... 218 
 
 Order submitting motion to assign case for argument, &e 248 
 
 Order assigning case for argument and fixing time in which to file briefs. . . 249 
 
 Abstract of evidence 250 
 
 Appearances 250 
 
 Stipulation in regard to objections 250 
 
 Evidence on behalf of The State of Kansas, complainant. t 251 
 
 Testimony of M. M. Murdock 251 
 
 Oliver Mulvey 267 
 
 John W. Harrison 273 
 
 Henry Jurgensen 279 
 
 W. O. Huss 282 
 
 C. E. Tupper 284 
 
 Ransom H. Brown 286 
 
 H. H. Hansen 286 
 
 D. E. Breese 293 
 
 H. H. Hansen (recalled) 299 
 
 G. M. Shive 300 
 
 Silas Rutledge 302 
 
 Charles E. McAdams 305 
 
 John W. Shive 309 
 
 R. E. Lawrence 318 
 
 Offers of statutes, &c 333 
 
 Testimony of B. H. Campbell . 334 
 
 C. P. Fullington 340 
 
 D. A. McCanless 344 
 
 Hiram W. Lewis 351 
 
 A. B. Caldwell 353 
 
 G. N. Dickson 364 
 
 A. B. Caldwell (recalled) 364 
 
 R. A. Patton 364 
 
 P. H. Franev 367 
 
 Johnson Keller 375 
 
 John Myrtle 381 
 
 I. H. Bonsall 383 
 
 W. M. Sleeth 388 
 
 L. E. Woodin 391 
 
IV 
 
 INDEX. 
 
 Page 
 
 Testimony of Albert H. Denton 393 
 
 James Benedict 396 
 
 R. J. Stevenson 401 
 
 W. H. Speers 401 
 
 E. J. Hoyt 408 
 
 Elias Neff 411 
 
 John Myrtle (recalled). . '. 411 
 
 Arthur H. Green 412 
 
 Frank J. Hess 412 
 
 W. M. Sleeth (recalled) 415 
 
 I. H. Bonsall (recalled) 415 
 
 P. H. Franey (recalled) . . 416 
 
 A. A. Newman 416 
 
 L. E. Woodin (recalled) 420 
 
 Frank J. Hess (recalled) 421 
 
 R. E. Edwards 424 
 
 Floyd E. Wellman 435 
 
 D. D. Baxter 440 
 
 William H. Vernon ... 441 
 
 Robert N. Wright 444 
 
 C. M. Beeson 457 
 
 Chapter 425, Session Laws of Kansas, 1901 (page 766) 469 
 
 Testimony of L. J. Pettijohn 469 
 
 H. B. Bell 472 
 
 S. Gallagher, Jr 475 
 
 H. D. Chambliss 479 
 
 M. W. Sutton 482 
 
 George C. Laird 484 
 
 George W. Reighard 486 
 
 E. R. Chew 491 
 
 Louis G. Carpenter 525 
 
 James Cowie 528 
 
 O. C. Emery 529 
 
 F. L. Pierce 542 
 
 Jacob B. Still wagon 549 
 
 George H. Reeve . 554 
 
 L. P. Worden 560 
 
 E. J. Pyle 566 
 
 I. L. Diesen 574 
 
 C. S. Longstreth 582 
 
 E. N. Keep 592 
 
 C. A. Loucks 593 
 
 James Craig .... 597 
 
 E. B. Stotts 605 
 
 O. V. Folsom 610 
 
 Millard F. Griggs 611 
 
 W. R. Patterson 612 
 
 C. A. Snyder 616 
 
 Complainant rests 616 
 
 Evidence on behalf of The State of Colorado, a defendant • 617 
 
 Testimony of Louis G. Carpenter . 617 
 
INDEX. 
 
 V 
 
 Page 
 
 Testimony of T. C. Henry 694 
 
 D. C. Beaman 729 
 
 Oliver P. Wiggins 738 
 
 Frank B. Baldwin . . 743 
 
 Henry Hegwer 749 
 
 Louis G. Carpenter (cross) 755 
 
 Edward L. Berthoud 779 
 
 Deane Monahan 784 
 
 Wm, R. Beatty 786 
 
 Harris A. Newton 788 
 
 Robert Roberts 790 
 
 Wm. A. Perry 793 
 
 Henry T. Galbreath 794 
 
 F. W. Swanson 800 
 
 James Gallena . . 807 
 
 B. D. Spencer 813 
 
 Robert Finley 817 
 
 Anthony Bott 818 
 
 Henry McAllister 822 
 
 T. B. Pyles 827 
 
 A. Z. Sheldon 831 
 
 John R. Sitlington . 834 
 
 Thomas Shidelar 836 
 
 Dali De Weese 837 
 
 C. J. Frederickson 843 
 
 J. S. Logan . .. i ..... 844 
 
 Henry C. Beckham ... 845 
 
 John Pierce 846 
 
 James A. McCanless 847 
 
 John Ross . ... 848 
 
 George Gilbert 851 
 
 John J. Thomas 853 
 
 Oliver H. P. Baxter 857 
 
 Lewis Conley 859 
 
 P. F. Lull.." 865 
 
 Granville G. Withers 866 
 
 C. B. Schmidt 867 
 
 Harley Sanderson 876 
 
 Wm. A. Watson 877 
 
 Henry H. Bourne 878 
 
 S. S. Smith ... 880 
 
 Wm. G. Gobin 882 
 
 H. M. Fosdick 888 
 
 J. W. Beatty 891 
 
 S. W. Cressy 892 
 
 Humphrey Best 902 
 
 Oliver B. Stauffer 903 
 
 W. N. Randall 906 
 
 George W. Swink . 908 
 
 H. W. Potter 919 
 
 F. G. Curran . 920 
 
VI 
 
 INDEX. 
 
 Page 
 
 Testimony of Charles F. Evans 921 
 
 S. W. Cressy (recalled) . . 923 
 
 J. B. Lynch 925 
 
 Frank Kreybill 927 
 
 M. H. Murray 925 
 
 Reuben Irwin 930 
 
 John Murphy 933 
 
 J. K. Doughty .... 935 
 
 C. P. Thoman . 938 
 
 John Gores 945 
 
 Harry S. Crittenden 947 
 
 John J. Donohue 950 
 
 Paul Rich 955 
 
 James A. Baird 957 
 
 Win. W. Jones 959 
 
 Amos Newton Parish 963 
 
 Harry H. McDowell 967 
 
 Marsena J. McMillin 970 
 
 W. J. Johnson 972 
 
 Charles Bobbenreith 973 
 
 A. E. Bent 974 
 
 G. R. Hillyer 977 
 
 Henry B. Sager 979 
 
 Samuel N. Johnson 983 
 
 George W. Thompson 985 
 
 J. 0. Packer 989 
 
 Clinton B. Sharp 990 
 
 Walter N. Houser 993 
 
 Claudius V. S. Hart 998 
 
 Jesse F. McDonald 1002 
 
 Daniel L. Taylor 1004 
 
 Joseph K. Kincaid 1008 
 
 S. J. Capps 1010 
 
 J. C. Paddock 1015 
 
 J. O. Albert 1019 
 
 State of Colorado, a defendant, rests 1022 
 
 Testimony introduced by the United States, intervenor 1022 
 
 Testimony of Clarence T. Johnston 1022 
 
 Nellis E. Cortliell 1034 
 
 S. C. Downing 1045 
 
 Gibson Clark 1047 
 
 J. A. Van Orsdel 1055 
 
 M. R. Johnston 1059 
 
 A. L. Fellows 1061 
 
 Walter B. Dunton 1069 
 
 Miguel A. Otero 1076 
 
 Luther Foster 1079 
 
 M. W. Mills 1085 
 
 Thomas B. Catron , 1091 
 
 R. E. Twitched 1097 
 
 Pedro Perea 1105* 
 
JNDKX. 
 
 YII 
 
 Page 
 
 Testimony of Solomon Luna 1109 
 
 Wendell M. Reid 1113 
 
 J. W. Poe 1121 
 
 S. Atkinson 1124 
 
 Wm. G. Hamilton 1125 
 
 Vernon L. Sullivan 1132 
 
 Francis G. Tracy 1132 
 
 B. M. Hall 1138 
 
 J. J. Hagerman 1147 
 
 B. S. Rodey 1156 
 
 George H. Maxwell - 1163 
 
 W. L. Jones 1172 
 
 Theodore A. Bell 1175 
 
 Frank W. Mondell 1179 
 
 Fred T. Dubois 1190 
 
 Joseph M. Dixon 1196 
 
 J. C. Needham 1203 
 
 Henry C. Hansbrough 1206 
 
 W. A. Reeder 1214 
 
 Willard D. Johnson - 1221 
 
 N. H. Darton 1256 
 
 Alexander Oswald Brodie 12.59 
 
 Joseph L. B. Alexander 1264 
 
 F. H. Newell 1265 
 
 Francis E. Warren . . 1289 
 
 William L. Sibert 1295 
 
 L. P. Drake 1298 
 
 Edwin Huston 1300 
 
 David D. Chapman 1304 
 
 P. R. Van Frank, Jr 1309 
 
 W. H. Code 1315 
 
 Joseph M. Cary 1324 
 
 'Charles S. Slichter 1334 
 
 El wood Mead 1363 
 
 Testimony offered on behalf of defendant The Arkansas Valley Sugar 
 
 Beet and Irrigated Land Company ... 1427 
 
 Testimony of Wm. W. Wiley 1427 
 
 Testimony on behalf of defendant The State of Colorado continued .... 1454 
 
 Testimony of Henry Block 1454 
 
 Dan Larmor 1462 
 
 Berry W. Nolan 1465 
 
 D. E. Hogbin. 1469 
 
 B. F. Stocks 1475 
 
 Nathan F. Weeks 1492 
 
 George Hill 1494 
 
 R. S. Crane 1500 
 
 R. W. Evans 1505 
 
 John D. Sidlow 1510 
 
 Chas. E. Argabright 1516 
 
 Wm. J. Spencer 1524 
 
 H. Juneau 1533 
 
VIII 
 
 INDEX. 
 
 Page 
 
 Testimony of George K. Lee 1547 
 
 T. G. Payne . 1551 
 
 Peter Schnack 1555 
 
 E. E. Frizell 1557 
 
 Emma Leasure 1556 
 
 Win. H. Brinkman . 1570 
 
 A. A. Thorp 1575 
 
 George N. Moses 1582 
 
 W. B. Norris 1586 
 
 Frank Gibson 1588 
 
 Robert A. Bidleman 1593 
 
 L. D. Williams 1596 
 
 John Rogers 1598 
 
 E. E. Epperson 1600 
 
 John F. Lewis 1603 
 
 Edwin Tyler 1606 
 
 F. D. Wilson 1610 
 
 John F. Lewis (recalled) 1612 
 
 A. L. Swarens 1617 
 
 Dan Welchons 1621 
 
 L. P. Hadley 1626 
 
 George Foster 1630 
 
 W. B. Jewell 1635 
 
 A. N. Culberson 1640 
 
 D. M. Sprankle 1642 
 
 W. F. Stevens 1646 
 
 J. R. Foster 1651 
 
 W. G. Malone 1656 
 
 J. R. Brown 1660 
 
 Henry Loslibough 1666 
 
 S. M. Tucker 1674 
 
 Charles Schaefer 1682 
 
 F. M. Dofflemyre /. 1690 
 
 Joshua Rush 1699 
 
 J. M. Hall 1703 
 
 John Williams 1707 
 
 J. R. Sites 1711 
 
 Simon H. Loughlin 1717 
 
 Jacob Lumbert 1722 
 
 S. M. Belden 1726 
 
 J. R. Sites (recalled) 1733 
 
 Oscar L. Winters 1734 
 
 J. W. Sites 1741 
 
 J. T. Sites 1745 
 
 L. B. Dotson 1749 
 
 A. J. Shore 1756 
 
 W. G. Carson 1762 
 
 S. D. Lemasters 1766 
 
 Ernest C. Morrill 1771 
 
 E. W. Phillips 1777 
 
 Moses Nixon 1781 
 
INDEX. 
 
 IX 
 
 Pag;e 
 
 Testimony of G. R. Hamm 1784 
 
 Henry Hahn 1785 
 
 John Thompson 1788 
 
 J. M. Buffington 1789 
 
 L. H. Hill 1795 
 
 Joseph Hahn 1797 
 
 A. D. Pennington 1800 
 
 T. C. Price 1803 
 
 Louis G. Carpenter (recalled) 1805 
 
 Defendant The State of Colorado rests 1858 
 
 Evidence for complainant in rebuttal. 1858 
 
 Testimony of A. H. Burtis 1858 
 
 W. McD. Rowan 1861 
 
 E. P. Barber 1872 
 
 Albert Pratt 1880 
 
 Earlie Overton 1886 
 
 James Craig 1891 
 
 Edward H. Hudson. 1893 
 
 I. N. McBeth 1895 
 
 L. J. Pettijohn 1902 
 
 John Rinev 1903 
 
 J. H. Miller 1910 
 
 Charles Herzer 1914 
 
 O. H. Simpson 1919 
 
 Charles H. Northrop .... 1925 
 
 S. H. Thomas 1940 
 
 Joseph Timmons ...... 1949 
 
 P. H. Young 1957 
 
 James M. Imel 1968 
 
 W. IT. Johnson 1980 
 
 S. S. Dickinson 1983 
 
 Clyde B. Johnson 2012 
 
 J. J. Nesbit 2014 
 
 Wm. A. Heller 2015 
 
 J. P. Worrell. 2018 
 
 W. B. Cornell 2026 
 
 C. Q. Newcomb 2032 
 
 G. L. Chapman ... 2038 
 
 J. B. Miller 2045 
 
 John H. Rupert . ' 2048 
 
 T. B. Unruh 2050 
 
 J. F. Lewis . .... 2054 
 
 J. B. Keeley 2057 
 
 J. H. Smith 2066 
 
 H. Swartz 2075 
 
 J. M. McGee 2081 
 
 Samuel Hirst 2082 
 
 Frank Vincent 2085 
 
 Sheridan Ploughe 2092 
 
 Henry Hartford 2099 
 
 L. A. Bigger 2100 
 
X 
 
 INDEX. 
 
 Joseph S. George 
 
 Charles Collins 
 
 George W. Watson 
 
 Jesse J. Todd 
 
 J. R. Mead 
 
 Owen B. Stocker 
 
 Wm. Mathewson 
 
 Wm. Finn 
 
 Ransom H. Brown 
 
 F. M. Stambach 
 
 C. W. Watz 
 
 H. H. Hansen 
 
 Rufus Cone 
 
 G. T. Cubbon 
 
 Joseph G. McCoy 
 
 M. E. Morgan 
 
 Frank Bridgeman 
 
 P. V. Healy 
 
 James Beal 
 
 W. H. Poovey 
 
 W. L. Shore 
 
 J. S. Overlev 
 
 Jasper Sommerville 
 
 Squire Stevens 
 
 J. R. Johnston 
 
 John Jackson 
 
 J. M. Steele 
 
 W. F. Mains 
 
 Silas Thurlow . 
 
 A. P. Doughitt 
 
 Jeremiah Patterson 
 
 G. W. Veale . . 
 
 Hill P. Wilson 
 
 John S. Dawson 
 
 F. W. Coburn 
 
 Thomas Anderson 
 
 A. M. Campbell 
 
 Cyrus Anderson 
 
 W. H. Mitchell 
 
 R. A. Burch 
 
 Motion by State of Colorado to strike out evidence offered in rebuttal. . 
 
 Index to order of evidence 
 
 Complainant’s exhibits 
 
 Defendant Colorado’s exhibits 
 
 Graham Ditch Co.’s exhibits 
 
 Arkansas Valley S. B. & I. L. Co.’s exhibits 
 
 Intervenor’s exhibits 
 
 Alphabetical list of witnesses 
 
 Page 
 
 2113 
 
 2115 
 
 2119 
 
 2126 
 
 2127 
 
 2148 
 
 2150 
 
 2156 
 
 2159 
 
 2172 
 
 2174 
 
 2176 
 
 2178 
 
 2180 
 
 2182 
 
 2184 
 
 2190 
 
 2196 
 
 2199 
 
 2202 
 
 2206 
 
 2210 
 
 2215 
 
 2220 
 
 2222 
 
 2224 
 
 2227 
 
 2230 
 
 2232 
 
 2236 
 
 2241 
 
 2246 
 
 2253 
 
 2262 
 
 2266 
 
 2269 
 
 2273 
 
 2281 
 
 2282 
 
 2285 
 
 2285 
 
 2287 
 
 2287 
 
 2291 
 
 2292 
 2292 
 2292 
 2294 
 
THE STATE OF KANSAS VS. THE STATE OF COLORADO ET AL. 1 
 
 At the Capitol of the United States in the cit} T of Washington and 
 District of Columbia, being ihe present seat of the National Gov- 
 ernment of the United States, on the second Monday of October 
 (being the eighth day of the same month), in the year of our Lord 
 one thousand nine hundred, and of the Independence of the United 
 States the one hundred and twenty fifth, the Supreme Court of the 
 United States met agreeabty to law. 
 
 And afterwards, to wit, on the 13th day of May, A. D. 1901, the 
 following entry appears of record, viz : 
 
 In the Supreme Court of the United States, October Term, 1900. 
 
 The State of Kansas, Complainant, 
 vs. 
 
 The State Colorado. 
 
 Mr. Judson S. West, of counsel, for the complainant, submitted to 
 the consideration of the court a motion for leave to file a bill of 
 complaint herein, and leave was granted Mr. Charles C. Post, of 
 counsel for the defendant to submit objections thereto. 
 
 May 13th, 1901. 
 
 Which said motion is in the words and figures following, viz: 
 
 In the Supreme Court of the United States 
 
 The State of Kansas, Complainant, 
 vs. 
 
 The State of Colorado, Defendant. 
 
 Notice of Motion for Leave to File Bill in Equity. 
 
 The State of Colorado, the defendant above named, is hereby no- 
 tified that the complainant above named, The State of Kansas, will 
 on the sixth day of May, 1901, present to the Supreme Court of the 
 United States, at its court room in the ci t\^ of Washington, D. C., its 
 motion for leave to file a bill of equity against The State of Colorado, 
 a true copy of which motion is hereto attached marked “A” and 
 made a part hereof, and a true copy of which bill in equity is hereto 
 attached marked “ B ” and made a part hereof. In case the Supreme 
 Court can not hear said motion on said date the same will be pre- 
 sented as soon thereafter as the court can hear it. 
 
 THE STATE OF KANSAS, 
 
 Complainant, 
 
 By A. A. GODARD, 
 
 Its Attorney General and Solicitor. 
 
 E. F. WARE, 
 
 Of Counsel. 
 
 1—7 
 
2 1'Me state of Kansas V& 
 
 State of Colorado, { 
 
 * > §s * 
 
 Arapahoe County, / 
 
 Dewey C. Bailey, being first duly sworn says: I am United States 
 marshal for the district of Colorado, and on the 13th day of April, 
 1901, I served the foregoing notice by delivering a true copy thereof 
 together with a true copy of Exhibits “A” and “ B ” to Hon. James 
 B. Orman, governor of the State of Colorado, at the city of Denver 
 in said State, and 1 also delivered personally to Hon. Charles C. 
 Post, attorney general of the State of Colorado, at the said city of 
 Denver, on the 13th day of April, 1901, a true copy of the foregoing 
 motion together with a true copy of Exhibits “A” and “ B.” 
 
 DEWEY C. BAILEY. 
 
 Subscribed and sworn to before me this 15th day of April, 1901. 
 
 CHARLES W. BISHOP, 
 
 [seal.] Clerk U. S. District Court, District of Colorado. 
 
 “A.” 
 
 In the Supreme Court of the United States. 
 
 The State of Kansas, Complainant, | 
 
 vs. > No. — . 
 
 The State of Colorado, Defendant. | 
 
 Motion for Leave to File Bill in Equity. 
 
 A. A. Godard, attorney general and solicitor for complainant. 
 
 E. F. Ware, of counsel. 
 
 In the Supreme Court of the United States. 
 
 The State of Kansas, Complainant,] 
 
 vs. >No. — . 
 
 The State of Colorado, Defendant. ) 
 
 Motion for Leave to File Bill in Equity. 
 
 The State of Kansas, by its attorney general, appearing in that 
 behalf by and with the authority, consent and direction of the gov- 
 ernor of said State, comes now here and presents this its motion for 
 leave to file in this court a bill in equity against the State of Colo- 
 rado, and to have process issued thereon. A true copy of said bill 
 is herewith exhibited to the court, and twenty-five copies thereof 
 are now on file with the clerk of this court. And as the grounds of 
 this motion, the said State of Kansas, complainant, shows to this 
 honorable court: 
 
TSE STATE OE COLORADO ET AL. 
 
 1. That the State of Kansas is one of the United States of America, 
 admitted into the Union January 29, 1861. 
 
 2. That the State of Colorado is one of the United States of 
 America, admitted into the Union August 1, 1876. 
 
 3. That the Arkansas river rises in the Rocky mountains, in the 
 State of Colorado, and flows in said State a distance of about two 
 hundred and eighty miles, and thence into the State of Kansas, and 
 that all tributaries entering it, in the State of Colorado, have their 
 rise and entire flow in said State. 
 
 4. That during the winter season deep snows accumulate in said 
 mountains in the State of Colorado, and within the drainage area of 
 said river, which melting during the spring and summer, the waters 
 therefrom flow directly and in great volume in said river, from 
 early spring until the month of August in each year. 
 
 5. That the length of the course of said river in the State of 
 Kansas is about three hundred and ten miles; and the volume of 
 water in the bed of said river flowing from the State of Colorado 
 into and through the State of Kansas formerly was, and should and 
 would now be, very large but for the wrongful diversion of the same 
 in and by the State of Colorado, as alleged in the bill. 
 
 6. That throughout its entire course in the State of Kansas said 
 river flows through a broad valley of porous, alluvial deposits, com- 
 monly called “ bottom lands,” all of which, whether abutting upon 
 said river or situated elsewhere in said valley, are, extending 
 throughout the entire length and breadth thereof in the State of 
 Kansas, underlaid with sand and gravel, through which the waters 
 of said river have flowed time out of mind. All of said lands are 
 exceedingly fertile and valuable when supplied with moisture. 
 
 7. That by reason of the meager and uncertain rainfall in said 
 valley in the State of Kansas, the said underflow, which is almost 
 entirely furnished and supplied by the water which flows and 
 should flow in said river from the State of Colorado into the State 
 of Kansas, is necessary for the growing and maturing of all culti 
 vated crops, as well as of grasses and vegetation, in said valley 
 within the State of Kansas. 
 
 8. That all the lands in said river valley in the State of Kansas 
 were formerly and originally a part of the public domain of the 
 United States, and title to all of said lands was acquired from the 
 United States by settlers, grantees, and purchasers, in whom and in 
 whose successors in interest the said title, together with all riparian 
 and other rights appertaining to said lands, have remained at all 
 times and are still vested. That the rights of the State of Kansas 
 and of citizens of said State were acquired prior to the date of any 
 claims to said waters made by or in — State of Colorado. 
 
 9. That at the time the title to said lands passed from the United 
 States to said settlers, grantees, and purchasers, all the riparian and 
 other rights of the common law attached to said lands as incident to 
 said title. 
 
 10. That the State of Kansas is now and has been for many years 
 
4 
 
 THE STATE OP KANSAS VS. 
 
 the owner and in actual possession and occupancy of two large tracts 
 of land situate in said valley, one of which is located near the city 
 of Dodge City, Kan., and abuts upon said river, and upon which 
 the State of Kansas many years ago constructed and has ever since 
 maintained a State institution known as “ The Soldiers’ Home ” ; 
 and that the other of said two tracts of land is situated near the city 
 of Hutchinson, Kan., upon which tract the State of Kansas con- 
 structed many years ago, and has at all times since maintained, a 
 State institution used as an “ industrial reformatory.” 
 
 11. That each of said tracts of land so owned and occupied by the 
 State of Kansas is used and cultivated by said State for the purpose 
 of raising and producing thereon grain and vegetables, and of rais- 
 ing and maintaining thereon stock, for the use and support of said 
 State institutions ; and in order that said lands may be productive 
 or useful for the purposes aforesaid, or for any other purpose, it is 
 necessary that the said underflow of the Arkansas river beneath the 
 surface of said lands be not impaired or diminished in any way. 
 
 12. That the State of Colorado has heretofore granted license and 
 authority to persons, companies and corporations to construct ditches 
 and canals for irrigation and other purposes, by means and as the 
 result of which large portions of the water of the Arkansas river 
 have been, and are still, diverted therefrom within the State of 
 Colorado; that said waters so diverted have been, and are still, 
 appropriated and consumed by said persons, companies and 
 corporations so licensed and authorized, and are in no event returned 
 or permitted to flow back into the channel of said river, but are used 
 for the irrigation of arid non-riparian lands ; and that by reason of 
 said diversion of said waters the State of Kansas and thousands of 
 its citizens, as owners of lands in said valley within the State of 
 Kansas, are deprived of their rights to the flow and use of said water 
 in the bed of said river and the said underflow of said river, and are 
 for that reason greatly and irreparably damaged. 
 
 13. That the State of Colorado, in its own behalf, has constructed 
 and is now constructing large ditches, canals and reservoirs for the 
 purpose of diverting and storing thereby and therein, within the State 
 of Colorado, practically all of the water flowing or that would other- 
 wise flow in the channel of said Arkansas river, and for the purpose 
 of using and appropriating said water for irrigation and other uses 
 upon lands not riparian nor adjacent to said river, and with the ef- 
 fect that none of said water so diverted, stored and used is or will be 
 returned to the channel of said river, or to the use and benefit of the 
 State of Kansas or its citizens owning and occupying lands in the 
 valley of said river in said State, as aforesaid. 
 
 14. That the State of Colorado threatens to divert and appropriate 
 as aforesaid all of the waters of said Arkansas river within the State 
 of Colorado, and will so divert and appropriate the same unless re- 
 strained therefrom, to the great and irreparable loss and damage 
 and in utter disregard of the rights of the State of Kansas and of its 
 citizens. 
 
THE STATE OF COLORADO ET AL. 
 
 5 
 
 15. That if the State of Colorado is permitted to divert and appro- 
 priate the waters of said river as aforesaid, the lands of the State of 
 Kansas hereinbefore mentioned, ns well as the lands of the thousands 
 of citizens of said State, situate in said valley within the State of 
 Kansas, will be thereby greatly impaired in value and usefulness, 
 and will be rendered practically unfit for the production of crops, 
 and for the growth of grasses, fruits, and other vegetation, or for any 
 other purposes to which said lands have been heretofore and should 
 now and hereafter be devoted. 
 
 16. That the common law relative to riparian rights is now and 
 has been in full force in the States of Kansas and Colorado since 
 long before their admission into the Union ; and the diversion and 
 appropriation of the waters of the Arkansas river by and in the State 
 of Colorado, as aforesaid, has been, and is and will be wrongful, and 
 in utter disregard and violation of the rights and interests of the 
 State of Kansas and of its citizens. 
 
 17. That as a necessary result of the diversion and appropriation 
 of the water of said river by and in the State of Colorado, as afore- 
 said, thereby causing the water of said river to cease flowing in its 
 natural channel, normal volume and under the surface of said lands 
 within the State of Kansas, the owners and occupants of lands in 
 said valley are and will be wholly deprived of water necessary for 
 domestic use and for watering animals; and the atmosphere in the 
 vicinity of said river will be deprived of the moisture necessary to 
 the health and well-being of the inhabitants. 
 
 18. That, unless complainant be permitted to file its bill herewith 
 submitted and to obtain in this court, and by suit in equity therein, 
 a decree enjoining the State of Colorado from doing the things com- 
 plained of, complainant is remediless, and defendant can and will 
 destroy the value of complainant’s property to the extent of many 
 thousands of dollars, and the property of citizens of Kansas to the 
 extent of many millions of dollars, and the revenues of said State 
 will be greatly impaired, ail in violation of complainant’s rights and 
 the rights of said citizens, and in the absence of any right or au- 
 thority for so doing. 
 
 A. A. GODARD, 
 
 Attorney General, and Solicitor for Complainant. 
 
 E. F. WARE, 
 
 Of Counsel. ’ 
 
 (A copy of the bill of complaint, marked B, followed, but is not 
 here printed because printed hereafter.) 
 
 [Endorsed :] Supreme Court U. S. October term, 1900. Term 
 No. 19, original. The State of Kansas, complainant, vs. The State 
 of Colorado. Motion for leave to file bill of complaint with notice 
 of motion and proof of service of same and copy of bill. Submitted 
 May 13, 1901. Filed May 20, 1901. 
 
6 
 
 THE STATE OF KANSAS VS. 
 
 And afterwards, to wit, on the 20th day of May, A. D. 1901, the 
 following order appears of record, viz : 
 
 In the Supreme Court of the United States, October Term, 1900. 
 
 The State of Kansas, Complainant, 
 vs. 
 
 The State of Colorado. 
 
 On consideration of the motion for leave to file a bill of complaint 
 herein, 
 
 It is now here ordered by the court that said motion be, and the 
 same is hereby, granted and that a subpoena returnable on Monday, 
 October 14th next be issued and served herein. 
 
 May 20th, 1901. 
 
 And on the same day, to wit, the 20th day of May, A. D. 1901, 
 the bill of complaint was filed in the words and figures following, 
 viz : 
 
 In the Supreme Court of the United States. 
 
 The State of Kansas, Complainant, | 
 
 vs. >No. — . 
 
 The State of Colorado, Defendant, j 
 
 Bill in Equity. 
 
 A. A. Godard, attorney-general of the State of Kansas. 
 
 E. F. Ware, of counsel. 
 
 In the Supreme Court of the United States. 
 
 To the Honorable the Chief Justice and the associate justices of 
 
 the Supreme Court of the United States: 
 
 Your orator, the State of Kansas, brings this its bill of complaint 
 against the State of Colorado, and avers: 
 
 1. The State of Kansas is one of the United States of America, ad- 
 mitted into the Union January 29, 1861. The State of Colorado is 
 one of the United States of America, admitted into the Union 
 August 1, 1876. 
 
 2. This bill is exhibited and these proceedings are had by direc- 
 tion of Honorable W. E. Stanley, the duly elected, qualified and 
 acting governor of the State of Kansas. 
 
 3. Your orator further says: The Arkansas river rises in the- 
 Rocky mountains, in the said State of Colorado, and flows from its 
 source through the counties of Lake, Chaffee, Fremont, Pueblo, 
 
THE STATE OF COLORADO ET AL. 
 
 7 
 
 Ofcero, Bent, and Prowers, in said State, and thence from the last- 
 named county across the line into the State of Kansas. 
 
 All tributaries entering the Arkansas river in the State of Colorado 
 have their rise and entire flow in that State. The length of the 
 river in the said State is, approximately, two hundred and eighty 
 miles, and the drainage area of said river and its tributaries in the 
 said State is, approximately, twenty-two thousand square miles. 
 All of the drainage area of said river is east of the summit of the 
 Rocky mountains, and a large portion of such area is in the moun- 
 tains, where the fall of the snow in the winter season is very great. 
 Deep snows accumulate during the winter season in said mountains 
 and the valleys thereof, which snow melting during the spring and 
 summer, the waters therefrom flow into the river directly and in 
 great volume from the early spring until the month of August in 
 each year. The course of said river, after leaving the mountains of 
 Colorado, proceeds in an easterly direction for, approximately, two 
 hundred miles to the west line of the State of Kansas ; and the river 
 in its course, after leaving the mountains, is a navigable stream 
 under the laws and departmental rules and regulations of the 
 United States. 
 
 The volume of water in the bed of said river flowing from the 
 State of Colorado into the State of Kansas formerly was, and should 
 now be, and would be, very large, but for the wrongful diversion of 
 the same as hereinafter set forth ; said volume at its normal height in 
 said river at the mean average flow, for about ten months in the 
 year, being upwards of two thousand cubic feet per second. For a 
 period of about two months in the autumn of each year the normal 
 flow of water in the bed of said river shrinks and is much less than 
 the amount above stated. The tributaries of said river in the State 
 of Kansas are comparatively few in number, and do not and could 
 not furnish water to cause a continuous stream to flow in the bed of 
 the said river, except near the south line of the State where the river 
 flows into the Territory of Oklahoma. 
 
 The said river flowing from the State of Colorado enters the State 
 of Kansas and proceeds through the counties of Hamilton, Kearny, 
 Finney, Gray, Ford, Edwards, Pawnee, Barton, Rice, Sedgwick, 
 Sumner, and Cowley, in the State of Kansas, and therefrom through 
 the Territory of Oklahoma, the Indian Territory, and the State of 
 Arkansas, and empties into the Mississippi river at the eastern 
 boundary of that State. From Fort Gibson, in the Indian Terri- 
 tory, to the mouth of said river it is a large, navigable stream, and 
 is used for the purposes of trade and commerce by vessels plying 
 thereon. 
 
 The length of the river in the State of Kansas is about three hun- 
 dred and ten miles. Its course is through a broad valley, and along 
 its entire length within the State of Kansas are alluvial deposits of 
 great depth, amounting, in the aggregate, to about two million five 
 hundred thousand acres. The greater part of the said acreage and 
 the greater part of the course of the river lies in the western half of 
 
8 
 
 THE STATE OF KANSAS VS. 
 
 the State. The elevation of the bed of the river through the State 
 of Kansas is from three thousand three hundred and fifty feet above 
 the level of the sea, at the Colorado line, to one thousand feet above 
 said level at the point where it enters Oklahoma, The rainfall in 
 the drainage area of said river in the western half of the State of 
 Kansas is very light, and, by reason of the porous nature of the soil 
 throughout said drainage area, the greater portion of the water so 
 falling sinks into the earth, and but a small portion thereof finds its 
 way to said river, except in the event of severe and unusual storms. 
 The ordinary and usual rainfall in the major portion of the valley 
 of said river in the State of Kansas is utterly inadequate to the 
 growing and maturing of cultivated crops of any kind, because, 
 first , the pre ipitation is very scanty ; and, second , it does not fall 
 during the growing season of the year. 
 
 The said river in its entire course through the State of Kansas has 
 a natural fall of about seven and three-tenths feet per mile. The 
 valley of the river is composed of sand covered with alluvial soil, 
 and the river and the surface soil of the bottom lands in the State of 
 Kansas are all underlaid with sand and gravel, through which the 
 waters of said river have flowed from time immemorial, extending 
 in width under the entire valley for its whole length through the 
 State of Kansas. The natural course and flow of said river 
 throughout its entire length in the State of Kansas is in and 
 beneath the bed thereof and beneath the surface of the bottom 
 lands of the entire valley of said river. That portion of the 
 river which flows beneath the surface through the sand and gravel 
 is called the “ underflow.” The “ underflow ” is confined to the 
 valley of the river and is coextensive with the valley, and varies 
 in volume with the amount of water in discharge in the river. The 
 water which flows in the river from the State of Colorado into the 
 State of Kansas furnishes the principal and almost the entire supply of 
 water for the underflow in the valley of said river, and at its normal 
 height the said underflow is of great and lasting benefit to the said 
 bottom lands, both as to those which abut upon said river and as to 
 those which do not : and is of great benefit to the people owning and 
 occupying such lands, for that it -furnishes moisture sufficient to grow 
 ordinary farming crops in the absence of rainfall, and furnishes 
 water, at a moderate depth below the surface, for domestic use and 
 for the watering of animals. The flow of water in the river-bed is 
 also of great value to the people in the vicinity by reason of the fact 
 that the evaporation from said river tends to cool and moisten the 
 surrounding atmosphere, thereby greatly promoting the growth of 
 all vegetation, enhacing the value of lands in that vicinity, and con- 
 ducing directly and materially to the public health and making the 
 locality habitable. Owing to the dryness of the climate, the cloud- 
 lessness of the sky, the high elevation, and the prevailing winds, 
 evaporation is rapid and great, being about sixty inches per annum 
 at the east end of the river valley in Kansas, and ninety inches at the 
 west line of the State. 
 
THE STATE OF COLORADO ET AL. 
 
 9 
 
 Outside of said valley in the western half of the State of Kansas are 
 several million acres of arid upland and plateau upon which grows 
 a sparse but valuable grass upon which cattle may feed, and upon 
 which they have, in times past, in vast numbers been fed and fat- 
 tened, but the cattle so^ fed must have watering-places, and such 
 watering-places must be in the river valley. And the availability 
 and use of the said arid lands and the prosperity of the business of 
 cattle-feeding thereon depends entirely upon the water, its conven- 
 ience, depth, and supply, and if the surface flow of water in the bed 
 of said river be wholly cut off from the State of Kansas, then the 
 underflow will gradually diminish and run out, and the valley of 
 the Arkansas river will become as arid and uninhabitable as is the 
 upland and plateau along its course, since without said underflow 
 the valley land will be unfit for cultivation and the said lands un- 
 available for grazing. 
 
 The bottom lands in the valley of the Arkansas river in the State 
 of Kansas are practically level and rise from six to fifteen feet above 
 the water bed of the river, and are such as are ordinarily termed and 
 will be herein referred to as “bottom lands.” Nearly all of said bottom 
 lands, including those which are adjacent to the bed of said river, 
 are fertile and productive, valuable for farming purposes, and well 
 adapted to the growing [of corn, wheat, alfalfa, rye, domestic and 
 wild grasses, orchards, fruits, vegetables, and all like crops, grains 
 and grasses usually grown in that latitude of the United States. In 
 addition thereto, all of said lands are valuable for grazing purposes 
 and well adapted to the support of vast numbers of cattle, horses, 
 sheep, and hogs. 
 
 Nearly all of the bottom lands of the said Arkansas valley, includ- 
 ing those upon the banks of said river, are now owned, held and oc- 
 cupied by persons engaged in agricultural pursuits, and more than 
 three-fourths of the bottom lands of said valley in the State of Kan- 
 sas were and are occupied by persons owning or leasing said lands 
 and residing thereon with their families. More than two-fifths of 
 said bottom lands so situate in said valley in the State of Kansas, 
 including more than two-fifths of those upon the banks of said 
 river, are in a state of actual cultivation, and have been for many 
 years past; and said lands now have, outside of the cities, an agri- 
 cultural population of more than fifty thousand persons. The in- 
 habitants of said valley are now, and have been since the first set- 
 tlement thereof, as hereinafter set forth, engaged in the raising of 
 corn, wheat, rye, alsalfa, hay, fruits, vegetables, cattle, horses, sheep 
 and hogs and other products common to the latitude and climate. 
 
 Situated upon the banks of the said river in the State of Kansas 
 are numerous cities, towns, and villages, and among the cities so 
 situated are Syracuse, Garden City, Cimarron, Dodge City, Kinsley, 
 Larned, Great Bend, Sterling, Hutchinson, Wichita, and Arkansas 
 City; all of which cities, except the one last named, are county- 
 seats, and have an aggregate population of over 50,000 persons, 
 
10 
 
 THE STATE OF KANSAS VS, 
 
 whose rights are to a greater or less extent impaired by the wrongs 
 herein complained of. 
 
 The actual value of the bottom lands in the valley of the Arkan- 
 sas river, in the State of Kansas, is from five to one hundred dollars 
 per acre, and the average value of all of the said lands is not less 
 than twenty-five dollars per acre, provided said lands are permitted 
 to receive the benefits arising from the natural and normal flow of 
 water in said river, which benefits they would receive but for the 
 wrongful acts done in and by the State of Colorado. By reason of 
 the said wrongs, herein complained of, the value of said lands has 
 shrunk many millions of dollars, which has been a direct loss to 
 the citizens of the State of Kansas, and to the taxable wealth, and 
 to the revenues of the State of Kansas and to the school system of 
 the State as hereinafter set forth. 
 
 4. Your orator further says : All of the said bottom lands were 
 originally a part of the public domain of the United States, and by 
 the act admitting the State of Kansas into the Union the State 
 became entitled, for school purposes, to sections sixteen and thirty- 
 six of each governmental township, some of which sections are sit- 
 uated within the said valley, and a number of which adjoin the bed 
 of said stream. 
 
 Under the act of Congress of March 3, 1863, entitled “An act for 
 a grant of lands to the State of Kansas in alternate sections to aid 
 in the construction of certain railroads and telegraphs in said State,” 
 there was granted to the State practically all of the odd-numbered 
 sections of land in said valley lying north of a line four miles south 
 of the north line of township twent 3 7 -six in said State. Said Hue 
 is about four miles north of the city of Wichita, and extends to the 
 west line of said State; and the grant included all the territory of 
 the Arkansas valley west of Wichita, being four-fifths of said val- 
 ley. All the requirements and provisions of said act of Congress 
 were complied with prior to the year 1874 by the State of Kansas 
 and by the Atchison, Topeka & Santa Fe Railroad Company, as to 
 such of said lands as were located east of the west line of Ford 
 county in said State as now located. Prior to the year 1874, the fee- 
 simple title to said lands and all rights thereunto appertaining had 
 been certified and conveyed by the United States to the State of 
 Kansas, and by it to the said railroad company. 
 
 Between the years 1874 and 1883 the remaining sections of said 
 lands, to wit, those lyingiwest of said west line of Ford county, were 
 so certified, transferred, and conveyed to said State and by it con- 
 veyed. The amount of the lands so conveyed, which were situate 
 in said valley and were a part of the bottom lands thereof, was not 
 less than nine hundred thousand acres, a large portion of which 
 abut upon and extend to the bed of said river. The other lands in 
 said valley, being the even-numbered sections, were and have been 
 at all times subject to entry as a part of the public domain of the 
 United States and subject to be taken and occupied by settlers 
 thereon, under the land laws of the United States. 
 
THE STATE OF COLORADO ET AL. 
 
 11 
 
 Prior to the admission of the State of Kansas into the Union, in 
 1861, many persons were settlers and residents of said valley, occu- 
 pying and holding lands therein, more particularly along the line 
 of the Santa Fe trail, which followed the river from a point near the 
 present site of the city of Hutchinson to the west line of the State. 
 During the years 1869, 1870, and 1871, the entire Arkansas valley, 
 from the south line of the State of Kansas to the city of Great Bend, 
 was taken and occupied by actual settlers, who subsequently ac- 
 quired title to their lands under the laws of the United States of 
 America and by purchase from the State and the said railroad com- 
 pany. The other lands situated in said valley from Great Bend 
 westward to the west line of the State of Kansas, were taken up dur- 
 ing the time between the years 1872 and 1884 and have been occu- 
 pied ever since by actual settlers and by purchasers from the State 
 and from the said railroad company. All of the lands of said valley 
 have been thus occupied, Held and owned by said original settlers 
 and their grantees ever since the above dates of settlement, and 
 these settlers and their successors in interest have continuously held 
 and owned, and do now hold and own, all of the riparian and other 
 rights of every kind and nature in any way appertaining or belong- 
 ing to said lands. 
 
 5. Your orator further says: By an act of the Congress of the 
 United States of March 2, 1889, it was enacted that the Secretary of 
 the Interior be authorized to sell and convey to the State of Kansas 
 lots numbered three, five, six, and seven, of section three, township 
 twenty-seven south, of range twenty-four west, situated in Ford 
 county, Kansas, on condition that the State should within twelve 
 months thereafter pay or cause to be paid the sum of one dollar and 
 twenty-five cents per acre for said lands, and should within 
 three years establish and provide for the maintenance thereon 
 of a home for the care and maintenance of officers, soldiers, sailors 
 and marines who had served in the army and navy, and 
 their dependent parents, widows, or orphans. Thereafter, and on 
 the 13th day of June, 1889, the State of Kansas made pay- 
 ment to the United States of one dollar and twenty-five cents per 
 acre for said lands, and on said date they were by the Secretary of 
 the Interior, in pursuance of said act of Congress, transferred to the 
 State of Kansas, and it has ever since used said lands for the main- 
 tenance of a soldiers’ home thereon, in accordance with the pro- 
 vision of the aforesaid act of Congress. The lands so used consist 
 of one hundred and twenty-six and fifty-six one-hundredths acres of 
 the bottom lands of the Arkansas valley, adjoining and abutting 
 upon the bed of said river. Said land is fertile and of a character 
 well adapted to the raising of grain, fruits and vegetables when sup- 
 plied with moisture. The natural rainfall in the vicinity is slight 
 and insufficient for the maturing of crops, fruits, and vegetables, 
 and the value of said lands for farming purposes depends entirely 
 upon the flow of water in the bed of the river and upon the under- 
 flow beneath the land. The State of Kansas is now — , and has, dur- 
 
12 
 
 THE STATE OF KANSAS VS. 
 
 ing its entire ownership of said tract, used a large portion of the 
 same for the raising of grains, fruits, vegetables and grasses thereon 
 for the needs of its said institution, and as the owner of said land, 
 the State of Kansas, is now and has been since 1889 entitled to the 
 full, free and natural flow of all waters which naturally would flow 
 in said river and beneath said land ; and the rights of the State 
 thereto are prior and superior to any right or claim of the State of 
 Colorado accruing, acquired or established subsequent to said date. 
 
 6. Your orator further says: The State of Kansas is the owner of 
 the fee-simple title to the northeast quarter (J), the east half of the 
 northwest quarter (J), the southwest quarter (J), and the southeast 
 quarter (J) of section nineteen (19), and the south half of the south- 
 east quarter (J) of section eighteen (18), all in township twenty-three 
 (23) south, range five (5) west of the sixth principal meridian, situ- 
 ated in Reno county, Kansas, and has owned said lands since the 
 year 1885. The State of Kansas has erected upon said lands a large 
 institution built and used for the purpose of an industrial reforma- 
 tory, where are confined and detained large numbers of the crimi- 
 nals of the State. The greater portion of the said lands so owned 
 by the State are suitable for and are used for farming purposes in 
 connection with said institution, and for the growing of grain, 
 grasses, fruits and vegetables for the needs of said institution. Said 
 lands consist of about six hundred and forty (640) acres, and 
 are situated within the valley of the Arkansas river, and are 
 bottom lands furnished with moisture, sufficient for the growing 
 of crops thereon, solely from the underflow" of said river, and the 
 rainfall upon said lands in ordinary seasons is naturally inadequate. 
 
 The State of Kansas acquired the title to said reformatory lands 
 from divers persons and individuals who had previously owned and 
 occupied them, and the title to all that portion of said lands situate 
 in section nineteen passed from the United States to the State of 
 Kansas under and in pursuance of the act of Congress approved 
 March 3, 1863, granting certain lands to the State of Kansas to aid 
 in the construction of certain railroads, and said lands were located 
 and were certified to the State of Kansas April 9, 1873 ; and on the 
 19th day of May, 1873, the said section of land, with other lands, 
 were patented by the State of Kansas to the Atchison, Topeka & 
 Santa Fe Railroad Company. In and by said of Congress and the 
 certification and location of said lands thereunder and the patent 
 aforesaid, the full fee-simple title to said lands and all rights apper- 
 taining thereto were transferred from the United States of America 
 to said railroad company, and said title and rights have passed by 
 successive conveyances through various parties to the State of Kan- 
 sas, and were acquired bv it on August 14, 1885, as aforesaid, and 
 have been ever since held by it. The title to that portion of said 
 reformatory lands situate in section eighteen passsed from the 
 United States to one George S. Laverty, by a patent dated Septem- 
 ber 25, 1878, at which time said Laverty acquired the fee-simple 
 title to said premises and all rights appertaining thereto, all of which 
 
TilE STATE OF COLORADO ET At. 
 
 IS 
 
 relate back to and date from the time of his entry upon said lands, 
 more than five years prior thereto. Said title and rights in and to 
 said lands have passed by successive conveyances until they are 
 now vested in the State of Kansas as aforesaid ; and the State is 
 now, and has been since August 15, 1885, the owner in fee simple 
 of said tract of land and all rights thereunto appertaining. By reason 
 of the foregoing, the State of Kansas is entitled to the full natural 
 flow of the water of the Arkansas river in its accustomed place and 
 at its normal height and in its natural volume underneath all 
 of the said reformatory lands. The rights of the State thereto re- 
 late back to May 19, 1873, and are prior and superior to any right 
 or claim of the State of Colorado accruing, acquired or established 
 subsequent to said date. 
 
 7. Your orator further says : By the constitution of the State of 
 Colorado, adopted at or about the time of the admission of said 
 State into the Union, and not since abrogated by the people of said 
 State, it is provided in article fifteen thereof as follows : 
 
 “ Sec. 5. The water of every natural stream not heretofore appro- 
 priated within the State of Colorado is hereby declared to be the 
 property of the public, and the same is dedicated to the uses of the 
 people of the Stale subject to appropriation as hereinafter provided. 
 
 “ Sec. 6. The right to divert unappropriated waters of any natural 
 stream for beneficial uses shall never be denied. Priority of appro- 
 priation shall give the better right as between those using the water 
 for the same purposes ; but when the waters of any natural stream 
 are not sufficient for the service of all, those using the water for 
 domestic purposes shall have the preference over those claiming for 
 any other purpose, and those using the water for agricultural pur- 
 poses shall have the preference over those using the same for man- 
 ^mfacturing purposes.” 
 
 The legislature of the State of Colorado has from time to time 
 passed divers and numerous laws purporting and pretending to au- 
 thorize the diversion of water from said Arkansas river and its trib- 
 utaries, in said State, for uses and purposes other than domestic ; 
 more particularly for the purpose of irrigating arid and waste lands 
 for agricultural purposes in said State. In and by its said laws and 
 through its officers and courts the said State has pretended to grant 
 to divers persons, firms and corporations the right and authority to di- 
 vert the waters of the Arkansas river and its tributaries, in Colorado, 
 from their natural channels, and to cause said waters to flow into 
 and through canals and ditches constructed for the purpose, extend- 
 ing great distances away from the natural channels of said streams, 
 and to store said waters and to empty the same upon high arid lands, 
 not riparian to said streams, where large portions of such waters are 
 lost from evaporation, and the remainder sinks into the earth, as a 
 result of which, all of said waters are forever lost to such streams and 
 are thus and thereby prevented from flowing into or through the 
 State of Kansas. 
 
 Under and in pursuance ol said constitutional provisions and the 
 
14 STATE Otf ItA^SAS VS. 
 
 statutes of the State of Colorado, upwards of one hundred and fifty 
 persons, firms and corporations claim to have acquired rights to di- 
 vert water from said river and its tributaries, in the State of Col- 
 orado, for the purpose of irrigating such arid non-riparian lands in 
 said State ; and each of said persons, firms and corporations owns 
 one or more ditches or canals to carry said waters from the natural 
 courses of said streams. Many of said canals and ditches are of great 
 capacity, and are many miles in length. Many of said persons, 
 firms and corporations have constructed great reservoirs within 
 which to store, and in which are stored for use, vast quantities of 
 the water of said streams before using it for the purpose of irrigation, 
 as herein set forth. 
 
 Said ditch owners, together with the State of Colorado, as here- 
 after set forth, are now diverting and at all times continue to divert 
 frpm their natural courses the waters flowing in the bed of the Ar- 
 kansas river and its tributaries, in said State, and are now carrying 
 said waters to great distances from their natural courses and dis- 
 charging them for agricultural purposes upon arid and non-ripa- 
 rian lands, where such waters are wholly lost to such streams and 
 to the State of Kansas and its inhabitants. That such diversion is 
 carried to such an extent that no water flows in the bed of said river 
 from the State of Colorado into the State of Kansas during the an- 
 nual growing season, and the underflow of said river in Kansas is 
 diminishing and continuing to diminish, and if the said diversion 
 continues to increase, the bottom lands of said valley will be in- 
 jured to an enormous extent, and a large portion thereof will be ut- 
 terly ruined and will become deserted and be a part of an arid 
 desert. 
 
 The State of Colorado, through its laws, legislatures, officers, and 
 agents, pretends to authorize and license the owners of said canals 
 and ditches to take, carry away and so use the waters of said 
 streams ; and the State of Colorado, in addition to granting the 
 right to take and use the water, also claims the right to regulate and 
 control the distribution of such water by canal and ditch owners to 
 the owners of lands so irrigated, and grants permission and- license 
 to land owners of said State to take and receive the waters flowing 
 in said canals and ditches and use the same for irrigation purposes. 
 In addition to the foregoing, other canals and ditches for the diver- 
 sion of waters from said river and its tributaries are centemplated 
 for the purpose of irrigating non-riparian lands ; and the extension 
 of branches and laterals to those canals and ditches now built are 
 contemplated and intended by the people of the State of Colorado ; 
 as is also the obtaining of additional privileges not heretofore granted 
 for the diversion of water from said river, and its tributaries, and 
 the irrigation of lands not now irrigated. The extension of said 
 irrigation system in the drainage area of the Arkansas valley, in the 
 State of Colorado, is being continuously carried on ; and unless re- 
 strained therefrom the State of Colorado will grant additional rights 
 or pretended rights for the construction of other canals and ditches 
 
Tfift STATE OF COLORADO ET? AL 
 
 IS 
 
 Sufficient to divert all the water in the river, so that none will flow 
 into the State of Kansas. 
 
 The State of Colorado has, since the year 1890, at and near the 
 city of Canon City, in said State, constructed a great canal for the 
 purpose of diverting water of the Arkansas river from its channel at 
 said point and using the water for irrigation purposes upon arid 
 non-riparian lands, so that the water will not return to or again flow 
 in said liver ; which said canal is now owned, controlled and man- 
 aged by the State of Colorado. The said State authorizes, directs and 
 permits its agents and employees so to divert from said river into 
 said canal water to the amount of seven hundred and fifty-six y 2 ^ 
 cubic feet per second, thereby greatly diminishing the flow of water 
 in the river, which said amount is approximately the natural flow 
 of said river at the place of said diversion. The diversion of said 
 water from said river through said canal is continued during the 
 entire season within which annual crops are grown and matured in 
 the State of Kansas and throughout the entire season in which the 
 water is needed in the State of Kansas ; and said water so diverted 
 and taken, is sold by the State of Colorado to persons owning lands 
 in the vicinity of said canal, and the water is used by such owners 
 for irrigating such arid non-riparian lands. The waters so diverted 
 from said river by the State of Colorado would otherwise flow into 
 the State of Kansas and through said valley, and be vastly benefi- 
 cial. 
 
 The State of Colorado intends and is threatening to build, and 
 will build or cause to be built, unless restrained therefrom, other 
 canals similar in size, character, and design, with the purpose and 
 intention of forever diverting other large quantities of water from 
 said river and irrigating other arid non-riparian lands, and the leg- 
 islature of the State of Colorado has authorized the construction of 
 other such canals along the river in said State. The said canal con- 
 structed by the State of Colorado is not yet .completed, and only a 
 portion of the arid non-riparian lands subject to irrigation there- 
 from, as it is now constructed, is receiving water from said canal. 
 The State of Colorado intends to, and will, unless restrained by this 
 court, extend said canal and build branches and laterals thereto, and 
 will use water diverted from said river to irrigate arid non-riparian 
 lands not now or ever previously irrigated. 
 
 The said State of Colorado has, by and through legislation, made 
 large appropriations of money for the construction and erection of 
 reservoirs within its territory for the storage of water from streams 
 tributary to the Arkansas river in said State, and has provided 
 boards of control to have charge of the construction, maintenance 
 and operation of such reservoirs, and has provided that the waters 
 so stored in reservoirs may be sold and disposed of for the purpose 
 of being used in the irrigation of lands which are arid and non- 
 riparian to the streams from which such waters are taken. And 
 your orator further states, upon information and belief, that the said 
 State of Colorado has since the year 1891 erected and constructed 
 
16 
 
 THE STATE OE KANSAS VS. 
 
 and is now using not less than four of such reservoirs — one in each 
 of the counties of Custer, El Paso, Chaffee, and Las Animas — each 
 of which reservoir takes, stores and holds vast quantities of water 
 which would otherwise flow into the State of Kansas; and, by rea- 
 son of the use of said waters as aforesaid, no portion thereof is per- 
 mitted to return to its natural channel or flow in said river. 
 
 The said State of Colorado is now preparing to construct and in- 
 tends to construct, and unless restrained therefrom will construct, 
 within its territory and near the said river and its tributaries, and 
 at various points along the valley thereof, vast reservoirs within 
 which to further store and hold the natural and the flood waters of 
 said stream ; and it is the intention and expectation of said State so 
 to store and withhold and divert from the channel of said river all 
 of the water thereof. And your orator states, upon information and 
 belief, that surveys for such reservoirs have been made, and plans 
 and specifications are being prepared for the construction of such 
 reservoirs, and the State is preparing to enter upon the construction 
 thereof. Jf said reservoirs are so constructed by the State of Colo- 
 rado, vast and enormous quantities of water which would otherwise 
 flow in the river into the State of Kansas will be taken and held, 
 and will be sold and used for the irrigation of arid and non-riparian 
 lands not now irrigated, and will be forever lost to said river and 
 the State of Kansas. Such an event will cause great distress in the 
 State of Kansas in said valley, and will cause a vast and ruinous 
 decline in agrieluture, and great diminution in the wealth and 
 revenues of the State of Kansas, *and a great diminution in its popu- 
 lation and prosperity. And your orator believes, and so charges 
 the facts to be, that it is the intention of the State of Colorado to 
 divert absolutely all of the water that does, can or might flow down 
 the Arkansas river into the State of Kansas, so that all of the water 
 shall be used in the State of Colorado, and none whatever, either 
 above or below the surface, that may by any possibility be utilized, 
 shall cross the line into the State of Kansas, all to the great profit 
 and advantage of the State of Colorado ; and to the great damage 
 and injury of the State of Kansas. 
 
 When the Territory of Kansas was organized, in the year 1854, it 
 extended from its present eastern boundary to the summit of the 
 Rocky mountains, and all of the present drainage area of the Ar- 
 kansas river in Colorado was then included in the Territory of 
 Kansas, and during all of the period from then to the organization 
 of the State of Kansas the water of said river was wholly unappro- 
 priated, and the common law and the riparian rights herein claimed 
 extended over the whole of the Arkansas valley and to the summits 
 of the Rocky mountains, and had for many years prior thereto. By 
 reason of the prior settlement, occupation and title of the inhabit- 
 ants of the State of Kansas upon and to the lands situate in the 
 valley of said river, including those upon the banks of said river, 
 the State of Kansas and the owners of land in said valley did ac- 
 quire, and now have the right to, the uninterrupted and unimpeded 
 
TftE STATIC OF COLORADO ET AL. 
 
 il 
 
 flow of all of the waters of said river into and across the State of 
 Kansas. The rights so claimed by your orator accrued prior to any 
 of the said diversions by or in the State of Colorado, and prior to 
 the accruing of any of the pretended rights claimed by the State of 
 Colorado, or by persons, firms or corporations now taking water 
 from said river or its tributaries. 
 
 8. Your orator further says: The State of Colorado and the vari- 
 ous persons, firms and corporations engaged in taking waters from 
 said river and its tributaries as aforesaid, under and in pursuance 
 of authority and license pretended to be granted therefor b}^ the 
 State of Colorado, have by so doing wrongfully, illegally and 
 unlawfully diverted said water from the accustomed channel into 
 and across the State of Kansas, and have greatly damaged and have 
 irreparably injured the State of Kansas and the inhabitants thereof. 
 And by reason of said diversion of water the fertility of all of the 
 lands in said valley, including those upon the banks of said river 
 as well as others, has been greatly diminished. During the spring 
 and early summer, when crops are growing upon said valley lands 
 in Kansas, the diversion of water in Colorado, as aforesaid, withholds 
 from said Kansas Valley lands, and particularly those upon the 
 banks of said river, and those belonging to the State of Kansas above 
 described, the water to which said lands are entitled, with the result 
 that the crops, trees and vegetation growing thereon languish and 
 decline and in many places wither and perish ; and wells which 
 should furnish water for domestic use and animals become dry. The 
 said damages are the proximate and necessary result of the diver- 
 sion of said waters as aforesaid; and the amount of such damage is 
 enormous and beyond computation, and amounts to vast sums an- 
 nually, and such damages have increased year by year for the past 
 ten years, substantially in proportion as the diversion of said waters 
 in the State of Colorado has increased. If said persons, firms and 
 corporations be permitted to increase the amount of water which 
 they shall take from said river and its tributaries in Colorado, or if 
 other persons, firms or corporations be permitted to take additional 
 water from said river and its tributaries, the damage suffered, as 
 aforesaid, by the State of Kansas and the inhabitants of said valle} r 
 will continue to increase. 
 
 The property of your orator situated upon the banks of the 
 river near Dodge City, and used for the purpose of a soldiers’ home, 
 as aforesaid, has been greatly damaged and specially injured by 
 reason of the diversion from its channel of the water which would 
 otherwise flow in the said river by and underneath the said tract of 
 land. Its fertility has been greatly diminished, its water suppty 
 lessened, and its salubrity and utility impaired, and unless the 
 natural and normal flow of water is restored, the value of said prop- 
 perty will be entirely destroyed, and the same will be entirely de- 
 stroyed, and the same will be rendered unfit for use as a soldiers’ 
 home, or for any purpose whatever. And the same is true of the 
 propertv of your orator situate near the city of Hutchinson, and 
 2-7 
 
18 
 
 TTTTC STATIC Oti' KANSAS VS. 
 
 used for the purpose of a State industrial reformatory. If greater 
 amounts of water are to be taken from said river in the State of 
 Colorado, and if the water flowing therein shall be retained and 
 used in said State by the owners of canals and ditches or by the 
 State of Colorado, the value of said land will be taken away and the 
 utility of said institution wholly destroyed. 
 
 That by reason of the diversion of said waters, as herein described, 
 during the summer season and during the dry portion of the year, 
 when there is neither rainfall in the State of Kansas nor melting 
 snows in the State of Colorado, the bed of said river in the State of 
 Kansas above the city of Wichita becomes practically and oftentimes 
 wholly dry. The bed of said stream, through the territory above 
 described, is without high banks, and, in its natural condition, was 
 but a few inches or a few feet below the bottom lands adjacent 
 thereto. These adjacent bottom lands are of a loose, sandy loam, 
 and are unprotected on either side by hills or mountains, or by 
 any natural forests, and the bed of said stream is almost wholly of 
 sand. During said dry portion of the year said territory is subject 
 to High and constant winds, and said winds change and fill up the 
 bed of the stream and the natural channel thereof with drifting 
 sand, dirt, and debris, until it is practically level with the lands ad- 
 jacent thereto, and said obstructions are rapidly becoming perma- 
 nent by growing vegetation, willows, and trees. And at the times of 
 sudden and excessive rainfall in the State of Kansas, or sudden and 
 excessive melting of the snows in the State of Colorado, the flood 
 waters thereof cannot and do not flow down the natural channel of 
 said river, now filled and obstructed as aforesaid, but overflow said 
 adjacent bottom lands, washing channels therethrough, depositing 
 dirt and debris thereon, and doing great damage to stock pastured, 
 crops grown and improvements situate thereon, and greatly injuring 
 and decreasing the value of said lands. 
 
 9. Your orator further says : A large number of the irrigation 
 canals and ditches now wrongfully used as aforesaid in diverting 
 the waters of the Arkansas river and its tributaries from their ac- 
 customed channel in said State of Colorado are owned and op- 
 erated by domestic corporations organized for that purpose under 
 the laws of the State of Colorado, with limited periods of 
 existence. If the State of Colorado be not restrained from so 
 doing, it will, at or about the termination of the existence of such 
 corporations, grant unto them new charters or extensions of the 
 charters now held ; and said State will, unless restrained by this 
 court, grant other and new charters to corporations organized for 
 the purpose of unlawfully and wrongfully diverting and using said 
 waters for irrigation purposes, all to the great damage and irrepar- 
 able injury of the State of Kansas, and its inhabitants. 
 
 10. Wherefore, your orator prays the aid of this honorable court, 
 and asks that a decree may be entered prohibiting, enjoining and 
 restraining the State of Colorado from granting, issuing, or permitting 
 to be granted or issued hereafter, any charter, license, permit or 
 
THE: STATE OE COLORADO ET AL. 
 
 19 
 
 authority to any person, firm or corporation for the diversion of any 
 of the waters of the Arkansas river or of any of its tributaries from 
 their natural beds, courses and channels within the State of Colorado, 
 except for domestic use ; and from granting to any person, firm or 
 corporation any right to extend or enlarge any of the canals or 
 ditches now existing ; or to construct and operate any other canals, 
 ditches, branches, laterals or reservoirs in addition to those heretoto- 
 fore constructed and now in use in said State. 
 
 Your orator further prays, that the said State of Colorado may 
 be prohibited, enjoined, and restrained, as a State, from itself 
 constructing, owning, or operating, either directly or indirectly, 
 any canal or ditch whereby the waters of said river, or any 
 of its tributaries, shall be diverted from their natural courses 
 and channels; and from constructing, owning, operating or using 
 any reservoir for the storage of the waters of said river, or any of its 
 tributaries, for purposes of irrigation. 
 
 Your orator further prays, that the said State of Colorado may be 
 prohibited, enjoined and restrained from granting to any person 
 firm or corporation any extension of any charter, license, permit, or 
 authority, of any kind or nature whatsoever, for the diversion of 
 any of said waters from said river or its tributaries for irrigation 
 purposes, or for the continuance of such diversion thereof after the 
 charter, license, permit or authority theretofore granted for that pur- 
 pose shall have expired. 
 
 Your orator further prays, that it may have such other and fur- 
 ther relief in the premises as the nature of the circumstances of this 
 case may require and as to this honorable court shall seem meet. 
 
 Forasmuch, therefore, as your orator is without remedy in the 
 premises except in a court of equity, may it please your honors to 
 grant unto your orator not only a writ of injunction conformable to 
 the prayer of this bill, but also a writ of subpoena of the United 
 States of America directed to the State of Colorado, to be served upon 
 the governor and attorney general of said State, commanding it on 
 a day certain, therein to be named, and under a certain penalty, to 
 be and appear before your honorable court, then and there to an- 
 swer all and singular the allegations of the foregoing bill, and to 
 abide and perform such order and decree in the premises as may be 
 awarded against the said State. 
 
 And your orator, as in duty bound, will ever pray, etc. 
 
 A. A. GODARD, 
 
 Attorney General of the State of Kansas, 
 
 and Solicitor for Complainant. 
 
 E. F. WARE, 
 
 S. S. ASHBAUGH, 
 
 Of Counsel. 
 
 J. S. WEST, 
 
 Ass’t Att’y General. 
 
20 
 
 THE STATE OF KANSAS V& 
 
 [Endorsed :] Supreme Court [J. S. October term, 1000. Terul 
 No. 19, original. The State of Kansas, complainant, vs. The State 
 of Colorado. Bill of complaint. Filed May 20, 1901. 
 
 And on the same day, to wit, on the 20th day of May, A. D. 1901, 
 an order for appearance for complainant was filed in the words and 
 figures following, viz : 
 
 Order for Appearance. 
 
 Supreme Court of the United States, October Term, 1900. 
 
 The State of Kansas, Comp’t, ) 
 
 vs. >No. 19, Orig’l. 
 
 The State of Colorado. | 
 
 The clerk will enter my appearance as counsel for the complain- 
 ant. 
 
 (Name.) A. A. GODARD, 
 
 (P. O. Address.) Topeka, Kansas. 
 
 E. F. WARE, Topeka, Ks., 
 
 S. S. ASHBAUGH, Wichita, Ks., 
 
 J. S. WEST, Topeka, Ks., 
 
 Of Counsel. 
 
 jS^T’Note. — M ust be signed by a member of the bar of the Su- 
 preme Court of the United States. Individual and not firm names 
 must be signed. 
 
 [Endorsed :] Supreme Court U. S. October term, 1900. Term 
 No. 19, orig’l. Appearance for The State of Kansas, complainant. 
 Filed May 20, 1901. 
 
 And afterwards, to wit, on the 23d day of May, A. D. 1901, a 
 subpoena was issued and delivered to the marshal for service. 
 
 And afterwards, to wit, on the fourth day of June, A. D. 1901, the 
 subpoena, and proof of service of same, was filed in the words and 
 figures following, viz : 
 
 The United States of America, ss : 
 
 The President of the United States of America to the State of Col- 
 orado, Greeting : 
 
 For certain causes offered before the Supreme Court of 
 [seal.] the United States, having jurisdiction in equity, you are 
 hereby commanded that laying all other matters aside and 
 notwithstanding any excuse, you he and appear before the said Su- 
 
THE STATE OF COLORADO ET AL. 
 
 21 
 
 preme Court holding jurisdiction in equity, on Monday, the 14tli 
 day of October, 1901, at the city of Washington, in the District of 
 Columbia, being the seat of the National Government of the United 
 States, to answer unto the bill of complaint of the State of Kansas 
 in the said court exhibited against you. 
 
 Hereof you are not to fail at your peril. 
 
 Witness the Honorable Melville W. Fuller, Chief Justice of the 
 United States, at the city of Washington, the 23d day of May, A. D. 
 
 1901. 
 
 JAMES H. McKENNEY, 
 Clerk of the Supreme Court of the United States. 
 
 Endorsed: Supreme Court, U. S. October term, 1900. No. 19 
 original. The State of Kansas, complainant, v. The State of Col- 
 orado. Subpoena. 
 
 Office of the Marshal, Supreme Court of the United States, Wash- 
 ington, D. C. 
 
 Supreme Court of the United States, October Term, 1900. 
 
 The State of Kansas 
 The State of Colorado. 
 
 No. 19, Original. Marshal’s Return on 
 Subpoena. 
 
 The within subpoena came to my hand May 25, 1901 and on June 
 1, 1901, was duly served on the State of Colorado by acceptance of 
 service of same bv the the governor of said State and by the attor- 
 ney general of said State as witnessed by their signatures to said 
 acceptances attached hereto. And thereupon I have duly mailed 
 to said governor and to said attorney general each a duly certified 
 copy of the bill of complaint herein. Of all which I make this re- 
 turn at the city of Washington, this fourth day of June 1901. 
 
 J. M. WRIGHT, 
 Marshal Supreme Court U. S. 
 
 The United States of America, ss : 
 
 The President of the United States of America to the State of Colo- 
 rado, Greeting : 
 
 For certain causes offered before the the Supreme Court 
 [seal.] of the United States, having jurisdiction inequity, you are 
 hereby commanded, that laying all other matters aside 
 and notwithstanding any excuse, you be and appear before the said 
 Supreme Court holding jurisdiction in equity on Monday, the 14th 
 day of October, 1901, at the city of Washington, in the District of 
 Columbia, being the seat of the National Government of the United 
 
22 
 
 THE STATE OF KANSAS VS. 
 
 States, to answer unto the bill of complaint of the State of Kausas 
 in the said court exhibited against you. 
 
 Hereof you are not to fail at your peril. 
 
 Witness the Honorable Melville W. Fuller, Chief Justice of the 
 United States, at the city of Washington, the 23d day of May, A.D. 
 1901. 
 
 (Signed) JAMES H. McKENNEY, 
 
 Clerk of the Supreme Court of the United States. 
 
 State of Colorado, ss : 
 
 Service of the process, of which the above is a copy, is hereby ac- 
 cepted this 1st day of June A. D. 1901, at Denver, State of Colorado. 
 
 JAMES B. ORMAN, 
 Governor of the State of Colorado. 
 
 The United States of America, ss: 
 
 The President of the United States of America to the State of Colo- 
 rado, Greeting : 
 
 For certain causes offered before the Supreme Court of 
 [seal.] the United States, having jurisdiction in equity, you are 
 hereby commanded, that laying all other matters aside and 
 notwithstanding any excuse, you be and appear before the said Su- 
 preme Court holding jurisdiction in equity, on Monday, the 14th 
 day of October, 1901, at the city of Washington, in the District of 
 Columbia, being the seat of the National Government of the United 
 States, to answer unto the bill of complaint of the State of Kansas 
 in the said court exhibited against you. 
 
 Hereof you are not to fail at your peril. 
 
 Witness the Honorable Melville W. Fuller, Chief Justice of the 
 United States, at the city of Washington, the 23d dav of May, A. D. 
 1901. 
 
 (Signed) JAMES H. McKENNEY, 
 
 Clerk of the Supreme Court of the United States. 
 
 State of Colorado, ss : 
 
 Service of the process of which the above is a copy, is hereby ac- 
 cepted this 1st day of June A. D. 1901 at Denver, State of Colorado* 
 
 CHARLES C. POST, 
 Attorney General of the State of Colorado. 
 
 Endorsed: Supreme Court, U. S. October term, 1901. No. 10,. 
 original The State of Kansas, complainant, vs. The State of Colo- 
 rado. Subpoena and acceptance of service of same by governor and 
 attorney general of Colorado. Filed June 4, 1901. 
 
 And afterwards, to wit, on the 15th day of October, A. D. 1901, t.hft 
 following order appears of record, viz : 
 
THE STATE OF COLORADO ET AL. 
 
 23 
 
 In the Supreme Court of the United States, October Term, 1901. 
 
 The State of Kansas, Complainant, I 
 
 vs. V No. 10, Original. 
 
 The State of Colorado. J 
 
 On motion of Mr. F. D. McKenney, in behalf of counsel for the 
 defendant, leave is hereby granted to file the demurrer of the de- 
 fendant to the bill of complaint herein. 
 
 October 15th, 1901. 
 
 And on the same day, to wit, the 15th day of October, A. D. 1901, 
 a demurrer was filed in the words and figures following, viz: 
 
 In the Supreme Court of the United States. 
 
 The State of Kansas, Plaintiff, ] 
 
 vs. >10, Orig’l. 
 
 The State of Colorado, Defendant, i 
 
 Demurrer to Bill. 
 
 Chas. C. Post, attorney general. 
 
 Luther M. Goddard, Charles S. Thomas, Platt Rogers, Henry A. 
 Dubbs, of counsel. 
 
 In the Supreme Court of the United States. 
 
 The State of Kansas, Plaintiff, 
 vs. 
 
 The State of Colorado, Defendant. 
 
 The defendant, according to the statute in such case made and 
 provided, states the following causes of demurrer to the said bill of 
 complaint : 
 
 First, That this court has no jurisdiction of either the parties to 
 or the subject matter of this suit because it appears on the face of 
 said bill of complaint that the matters set forth therein do not con- 
 stitute within the meaning of the Constitution of the United States, 
 any controversy between the State of Kansas and the State of 
 Colorado. 
 
 Second. Because the allegations of said bill show that the issues 
 presented by said bill arise, if at all, between the State of Kansas 
 and certain private corporations and certain persons in the State of 
 Colorado who are not made parties herein and which matters so 
 
24 
 
 THE STATE OF KANSAS VS. 
 
 stated, if true, do not concern the State of Colorado as a corporate 
 body or State. 
 
 Third. Because said bill shows upon its face that this suit is in 
 reality for and on behalf of certain individuals who reside in the 
 said State of Kansas on the banks of the Arkansas river and that 
 although the said suit is attempted to be prosecuted for and in the 
 name of the State of Kansas said State is in fact loaning its name 
 to said individuals and is only a nominal party to said suit and that 
 the real parties in interest are the said private parties and persons 
 residing in said State. 
 
 Fourth. Because it appears from the face of said bill that the State 
 of Kansas in her right of sovereignty is seeking to maintain this 
 suit for the redress of the supposed wrongs of certain private citi- 
 zens of said State while under the Constitution of the United States 
 and the laws enacted thereunder, said State possesses no such sover- 
 eignty as empowers it to bring an original suit in this court for such 
 purposes. 
 
 Fifth. Because it appears upon the face of said bill of complaint 
 that no property rights of the State of Kansas are in any manner 
 affected by the matters alleged in said bill of complaint; nor is there 
 any such property right involved in this suit as would give this 
 court original jurisdiction of this cause. 
 
 Sixth. Because it appears from the face of said bill of complaint 
 that the acts complained of are not done by the State of Colorado or 
 under its authority, but by certain private corporations and indi- 
 viduals against whom relief is sought and who are not made par- 
 ties herein. 
 
 Seventh. The bill is multifarious in this, to wit : That thereby the 
 State of Kansas seeks to determine the claims of the State of Kansas 
 as a riparian owner against the claims of the State of Colorado as an 
 appropriator of water; the claims of the State of Kansas as a ripa- 
 rian owner against the separate and severable claims of numerous 
 undisclosed Colorado appropriators of water; the separate and sev- 
 erable claims of various disclosed and undisclosed riparian claimants 
 in Kansas against the claims of the State of Colorado as an appro- 
 priator of water; and the separate and severable claims of various 
 disclosed and undisclosed riparian claimants in Kansas against the 
 separate and severable claims of numerous undisclosed Colorado ap- 
 propriators ; and otherwise, as is apparent from the bill. 
 
 Eighth. Because the acts and injuries complained of consist of the 
 exercise of rights and the appropriation of water upon the national 
 domain in conformity with and by virtue of divers acts of Congress 
 in relation thereto. 
 
 Ninth. Because the constitution of the State of Colorado declaring 
 public property in the waters of its natural streams and sanctioning 
 the right of appropriation was enacted pursuant to national authority 
 and ratified thereby at the time of admission of the State into the 
 Union. 
 
 Tenth. Said bill of complaint is in other respects uncertain, infor- 
 
THE STATE OF COLORADO ET AL. 
 
 25 
 
 nnil and insufficient and does not state facts sufficient to entitle the 
 State of Kansas to the equitable relief praved for. 
 
 CHAS. C. POST, 
 
 Attorney General of the State of Colorado. 
 
 L. M. GODDARD, 
 
 C. S. THOMAS, 
 
 PLATT ROGERS, 
 
 Of Counsel. 
 
 I certify that, in my opinion, the foregoing demurrer of The State 
 of Colorado, defendant, to the bill of complaint of The State of Kan- 
 sas, complainant, is well founded in law and proper to be filed in the 
 above cause. 
 
 CHAS. C. POST, 
 
 Attorney General for the State of Colorado 
 
 and Solicitor for the Defendant. 
 
 [Endorsed:] Supreme Court U. S. October term, 1901. Term 
 No. 10, orig’l. The State of Kansas, complainant, vs. The State of 
 Colorado. Demurrer. Filed Oct. 15, 1901. 
 
 And afterwards, to wit, on the 21st day of October, A. D. 1901, the 
 following order appears of record, viz : 
 
 In the Supreme Court of the United States, October Term, 1901. 
 
 The State of Kansas, Complainant, j 
 
 vs. vNo. 10, Original. 
 
 The State of Colorado. I 
 
 On motion of Mr. A. A. Godard, of counsel for the complainant, 
 
 It is ordered by the court that leave be granted the defendant to 
 tile a printed brief herein on or before December 2d, to complainant 
 to file a brief in reply on or before February 3d, and that the cause 
 be assigned for argument on Monday, February 24th next. 
 
 October 21st, 1901. 
 
 And afterwards, to wit, on the 19th day of February, A. D. 1902, 
 a motion was filed in the words and figures following, viz : 
 
 Supreme Court of the United States, October Term, 1901. 
 
 State of Kansas, Complainant,] 
 
 vs. > Original, No. 10. 
 
 State of Colorado, Defendant. ) 
 
 Comes now the defendant, by Charles C. Post, attorney general, 
 and respectfully moves this honorable court for an order extending 
 
2G 
 
 THE STATE OF KANSAS VS. 
 
 the time for argument beyond the limitation of two hours on both 
 sides, and the number of arguments to three on each side, at the 
 hearing of the demurrer to the bill of complaint heretofore filed and 
 specially assigned for hearing on Monday, the 24th inst. 
 
 And the defendant assigns as reasons for said motion the fol- 
 lowing : 
 
 That the said bill has been filed by the said State of Kansas 
 against this defendant to enjoin it from appropriating and using, or 
 to authorize any person, association, or corporation to use, appro- 
 priate, or divert, any of the waters of the Arkansas river, or its 
 tributaries, within the boundaries of the State, for purposes of irri- 
 gation, mining, or manufacturing, and to prohibit it from extending, 
 prolonging, or renewing to any individual, corporation, or associa- 
 tion the right to use, appropriate, or divert the said waters or any 
 part thereof upon the termination of any such right now in exist- 
 ence and which may terminate by limitation. 
 
 That the said State of Kansas claims and insists that it has in its 
 sovereign capacity the rights of a riparian proprietor in said river, 
 which traverses both of said States in its course from its headwaters 
 to the Mississippi river; and also asserts the right to protect by in- 
 junction alleged injuries to its citizens living along and in the valley 
 of the said river and owning real estate therein 
 
 That the said bill and alleged right of action attacks an estab- 
 lished policy and industrial system of this defendant, and is a menace 
 to vast property interests, and will, if sustained by this honorable 
 court, serve as a precedent to the institution of similar actions for 
 similar purposes by other States and Territories adjoining the State 
 of Colorado and traversed by streams of running water common to 
 them and to the said State of Colorado. 
 
 That divers individuals and corporations using, appropriating, 
 and diverting water from the Arkansas river, under the laws and 
 constitution of the State of Colorado, have employed counsel to rep- 
 resent this defendant with the attorney general in resisting the said 
 bill, and who should be heard in support of the demurrer, if consist- 
 ent with the rules and orderly procedure of this honorable court. 
 
 That many of the questions raised by the demurrer to the said 
 bill are res Integra and require a thorough and exhaustive consider- 
 ation. 
 
 That the subject-matter of the bill and effect of a decision sus- 
 taining its legality and overruling the demurrer is of concededly 
 great and far-reaching importance, and the amount of the property 
 interests directly (o be affected thereby is of great magnitude. 
 
 That the State of Kansas, by its bill, seeks to limit the sovereignty 
 of the State of Colorado and subordinate its right to the use of the 
 waters of natural streams within its borders to the alleged superior 
 right of the State of Kansas and its citizens therein. 
 
TH 1C STATE OF COLORADO ET AL. 
 
 27 
 
 Wherefore the defendant respectfully prays that this honorable 
 court may, for the reasons aforesaid, grant its said application. 
 
 CHAS. C. POST, 
 
 Attorney General, State of Colorado. 
 
 CHARLES S. THOMAS, 
 
 LUTHER M. GODDARD, 
 
 PLATT ROGERS, 
 
 HENRY A. DUBBS, 
 
 Of Counsel. 
 
 [Endorsed:] Supreme Court U. S. October term, 1901. Term 
 No. 10, original. State of Kansas, complainant, vs. State of Colorado. 
 Motion to enlarge time for argument and that three counsel be al- 
 lowed to argue on each side. Filed February 19, 1902. 
 
 And afterwards, to wit, on the 24th day of February, A. D. 1902, 
 the following order appears of record, viz : 
 
 In the Supreme Court of the United States, October Term, 1901. 
 
 The State of Kansas, Complainant, ] 
 
 vs. >No. 10, Original. 
 
 The State of Colorado. ) 
 
 On motion of Mr. Charles S. Thomas, of counsel for the defendant, 
 It is ordered by the court that three hours be allowed counsel on 
 each side in the argument of this cause and that three counsel be 
 allowed to be heard for the defendant. 
 
 February 24th, 1902. 
 
 And on the same day, to wit, on the 24th day of February A. D. 
 1 902, an appearance for defendant was filed in words and figures 
 following, viz : 
 
 Order for Appearance. 
 
 Supreme Court of the United States, October Term, 1901. 
 
 The State of Kansas, Com pi ’t, ) 
 
 vs. > No. 10, Or’g’l. 
 
 The State of Colorado. j 
 
 The clerk will enter our appearance as counsel for the defendant. 
 CHAS. C. POST, Att’y General. 
 
 L. M. GODDARD, 
 
 CHAS. S. THOMAS, Att’vs for Def’ts, and 
 PLATT ROGERS & H. A. DUBBS, 
 
 Of Counsel. 
 
 Note: — Must be signed by a member of the bar of the Su- 
 preme Court United States. Indivdual and not firm names must be 
 
 signed. 
 
23 
 
 THE STATE OF KANSAS VS. 
 
 [Endorsed:] Supreme Court U. S., October term, 1901. Term 
 No. 10, Origil. Appearance for deft. Filed Feb. 24, 1902. 
 
 And on the same day, to wit, on the 24th day of February, A. D. 
 1902, the following entry appears of record, viz : 
 
 In the Supreme Court of the United States, October Term, 1901. 
 
 The State of Kansas, Complainant, j 
 
 vs. I No. 10, Original. 
 
 The State of Colorado. ) 
 
 The argument of the demurrer herein was commenced by Mr. 
 Luther R. Goddard, of counsel for the defendant, and continued by 
 Mr. Platt Rogers of counsel for the defendant and Mr. A. A. Godard, 
 of counsel for the complainant. 
 
 February 24th, 1902. 
 
 And afterwards, to wit, on the 25th day of February, A. D. 1902, 
 the following entry appears of record, viz . 
 
 In the Supreme Court of the United States, October Term, 1901. 
 
 The State of Kansas, Complainant, j 
 
 vs. >No. 10, Original. 
 
 The State of Colorado. j 
 
 The argument of the demurrer herein was continued by Mr. A. A. 
 Godard, and Mr. E. F. Ware, of counsel for the complainant, and 
 concluded by Mr. Charles S. Thomas, of counsel for the defendant. 
 Leave was granted counsel for the complainant to file an additional 
 brief within seven days and to counsel for the defendant to file a 
 reply thereto. 
 
 February 25th, 1902. 
 
 And afterwards, to wit, on the 7th day of April, A. D. 1902, the 
 following order appears of record, viz : 
 
 In the Supreme Court of the United States, October Term, 1901. 
 
 The State of Kansas, Complainant, 
 vs. 
 
 The State of Colorado. 
 
 No. 10, Original. 
 
 This cause came on to be heard on the bill of complaint and de- 
 murrer of the defendant thereto, and was argued by counsel. On 
 consideration whereof, 
 
^tlE STATE OF COLORADO FI 1 AL. 
 
 20 
 
 It is now here ordered, adjudged and decreed by this court that 
 said demurrer be, and the same is hereby, overruled without preju- 
 dice to any question, and leave is hereby granted to said defendant 
 to answer. 
 
 April 7th, 1902. 
 
 (Mr. Justice Gray did not hear the argument and took no part in 
 this decision.) 
 
 And on the same day, to wit, the 7th day of April, A. D. 1902, an 
 opinion on demurrer was filed in the words and figures following, 
 viz : 
 
 Supreme Court of the United States, October Term, 1901. 
 
 The State op Kansas, Complainant, j No 10 , 0rigil?al . Bill in 
 The State of Colorado. I Equity. 
 
 (April 7, 1902.) 
 
 The State of Kansas, by leave of court, filed her bill of complaint 
 against the State of Colorado on May 20, 1901, which, after stating 
 that Kansas was admitted into the Union, January 29, 1861, and 
 Colorado, August 1, 1876, averred : 
 
 Thai tli e Arkansas river rises in the Rocky mountains in the State 
 of Colorado and flows through certain counties of that State and 
 thence across the line into the State of Kansas ; its tributaries in 
 Colorado have their rise and entire flow in that State; the length of 
 the river therein is approximate!} 7 two hundred and eighty miles, 
 and the drainage area of the river and its tributaries approximately 
 twenty-two thousand square miles. All of the drainage area is east 
 of the summit of the Rocky mountains and a large portion thereof 
 in the mountains, where the accumulation of snow in the winter 
 season is very great, the waters from the melting of which flow into 
 the river directly and in great volume from early spring until 
 August in each year. The river, after leaving the mountains of 
 Colorado, proceeds in an easterly course for approximately two hun- 
 dred miles to the west line of Kansas, and “ is a navigable stream 
 under the laws and departmental rules and regulations of the United 
 States.” The volume of water in the bed of the river flowing from 
 Colorado into Kansas formerly was and should now be, and would 
 be, very large, but for the wrongful diversion of the same; said 
 volume at its normal height in the river at the mean average flow 
 for about ten months in the year being upwards of two thousand 
 cubic feet per second, while it is much less for about two months in 
 the autumn in each year. The tributaries of the river in Kansas 
 are comparatively few in number, and cannot furnish water to cause 
 
so 
 
 tfiE STATrc OP KANSAS VS. 
 
 a continuous stream to flow in the bed of the river, except near the 
 south line of the State, where the river passes into the Territory of 
 Oklahoma. The river after entering Kansas proceeds through cer- 
 tain enumerated counties thereof, and then through the Territory of 
 Oklahoma, the Indian Territory and the State of Arkansas, and 
 empties into the Mississippi river at the eastern boundary of that 
 State. From Fort Gibson, in the Indian Territory, to the mouth of 
 the river it is a large navigable stream, and is used for the purposes 
 of trade and commerce by vessels plying thereon. 
 
 The length of the river in Kansas is about three hundred and ten 
 miles; its course is through a broad valley, and along its entire 
 length in Kansas are alluvial deposits of great depth, amounting in 
 the aggregate to about two millions five hundred thousand acres, 
 the greater part of which acreage and the greater part of the course 
 of the river lying in the western part of the State. The elevation of 
 the bed of the river through the State of Kansas is from three thou- 
 sand three hundred and fifty feet above the level of the sea at the 
 Colorado line to one thousand feet above that level at the point 
 where it enters Oklahoma. The rainfall in the drainage area in the 
 western half of the State of Kansas is very light, and, by reason of 
 the porous nature of the soil throughout that area the greater por- 
 tion of the water so falling sinks into the earth, and but a small por- 
 tion thereof finds its way to the river except in the event of severe 
 and unusual storms. The ordinary and useful rainfall in the major 
 portion of the valley of the river in Kansas is utterly inadequate to 
 the growing and maturing of cultivated crops of any kind, because 
 the precipitatian is very scanty, and does not fall during the grow- 
 ing season of the year. 
 
 The river in its entire course through the State of Kansas has a 
 natural fall of about seven and three-tenths feet per mile. Its valley 
 is composed of sand covered with alluvial soil, and the river and 
 the surface soil of the bottom lands in Kansas are all underlaid with 
 sand and gravel, through which the waters of the river have flowed 
 from time immemorial, extending in width under the entire valley 
 for its whole length throughout the State, the natural course and flow 
 of the river being in and beneath the bed thereof and beneath the 
 surface of the bottom lands of the entire valley of the river, that 
 portion which flows beneath the surface being called the “ under- 
 flow.” The “underflow” is confined to and is co-extensive with the 
 valley, and varies in volume with the amount of water in discharge 
 in the river. The water which flows in the river from Colorado into 
 Kansas furnishes the principal and almost the entire supply of water 
 for the underflow of the valley, and at its normal height the under- 
 flow is of great and lasting benefit to the bottom lands, both as to 
 those which abut on the river and as to those which do not ; and is 
 of great benefit to the people owning and occupying such lands, 
 “ for that it furnishes moisture sufficient to grow ordinary farming 
 crops in the absence of rainfall, and furnishes water at a moderate 
 depth below the surface for domestic use and for the watering of 
 
THE STATE OK COLORADO ET AL. 
 
 81 
 
 animats. The flow of the water in the riverbed is also of great value 
 to the people in the vicinity by reason of the fact that the evapora- 
 tion therefrom tends to cool and moisten the surrounding atmos- 
 phere, thereby greatly promoting the growth of all vegetation, en- 
 hancing the value of the lands in that vicinity, and conducing 
 directly and materially to the public health and making the locality 
 habitable. Owing to the dryness of the climate, the cloudlessness 
 of the sky, the high elevation, and the prevailing winds, evaporation 
 is rapid and great, being about sixty inches per annum at the east 
 end of the river valley in Kansas, and ninety inches at the west line 
 of the State. Outside of the valley in the western half of the State 
 of Kansas are several million acres of arid upland and plateau upon 
 which grows a sparse but valuable grass upon which cattle may 
 feed, and upon which they have, in times past, in vast numbers, 
 been fed and fattened, but the cattle so fed must have watering places 
 and such watering places must be in the river valley. And the 
 availability and use of said’arid lands and the prosperity of the busi- 
 ness of cattle feeding thereon depends entirely upon the water, its 
 convenience, depth and supply, and if the surface flow of water in 
 the bed of said river be wholly cut off from the State of Kansas, then 
 the underflow will gradually diminish and run out, and the valley 
 of the Arkansas river will become as arid and uninhabitable as is the 
 upland and plateau along its course, since without said underflow 
 the valley land will be untie for cultivation, and the arid lands un- 
 available for grazing.” 
 
 The bottom lands in the valley of the Arkansas river in Kansas 
 “ are practically level and rise from six to fifteen feet above tiie 
 water bed of the river,” and are such as are ordinarily termed 
 “bottom lands.” Nearly all of the bottom lands, including those 
 which are adjacent to the bed of the river, are fertile and productive, 
 valuable for farming purposes, and well adapted to the growing of 
 corn, wheat, alfalfa, rye, &c., and “all like crops, grains and grasses 
 usually grown in that latitude of the United States. In addition 
 thereto, all of said lands are valuable for grazing purposes and well 
 adapted to the support of vast numbers of cattle, horses, sheep and 
 hogs.” 
 
 More than three-fourths of these Kansas bottom lands were and 
 are occupied by persons owning or leasing them, and residing 
 thereon with their families ; and more than two-fifths, including 
 more than two-fifths of those on the river bank are and have been 
 for years in actual cultivation, with an agricultural population of 
 more than fifty thousand, raising all products “common to the 
 latitude and climate,” while numerous cities, towns and villages are 
 situated on the bank of the river, including ten county seats, with 
 an aggregate population of over fifty thousand. The actual value 
 of the Arkansas bottom lands averages not less than twenty-five 
 dollars an acre, provided they receive the benefits arising from the 
 natural and normal flow of the water of the river, but that by 
 reason of the wrongful acts of the State of Colorado the value of the 
 
22 
 
 THE STATE Op It A NBAS V& 
 
 lauds “ lias slirunk many millions of dollars, which has been a 
 direct loss to the citizens of the State of Kansas, and to the taxable 
 wealth, and to the revenues of the State of Kansas, and to the school 
 system of the State as hereinafter set forth.” 
 
 The bill further averred that all of the bottom lands were 
 originally part of the public domain of the United States, and 
 that the State became entitled, on admission, for school purposes, 
 to sections sixteen and thirty-six of each township, some of which 
 sections were situated within the valley, and a number of them ad- 
 joined the bed of the stream. That under the act of Congress of 
 March 3, 1863, there was granted to the State practically all of the 
 odd-numbered sections of land in the valley lying north of a line 
 four miles south of the north line of township twenty-six, and the 
 grant included all the territory of the Arkansas valley west of 
 Wichita, being four-fifths of the valley ; that all the requirements of 
 the act of Congress were complied with prior to 1874 by the State 
 and by the Atchison, Topeka and Santa Fe Railroad Company, and 
 the title in fee simple had been conveyed to the State and by the 
 State to the railroad company and others, being not less than nine 
 hundred thousand acres, a large portion of which abutted upon the 
 river; that the even-numbered sections had been at all times subject 
 to entry and have been taken and occupied by settlers under the 
 land laws. 
 
 Prior to the admission of Kansas there were many settlers and 
 residents in the valley, occupying and holding lands there, more 
 particularly along the line of the Santa Fe trail, which followed the 
 river from the present site of the city of Hutchinson to the west line 
 of the State, and during the — 1899, 1870 and 1871, the entire 
 Arkansas valley, from the south line of theState to the city of Great 
 Bend, was taken and occupied by actual settlers, who subsequently 
 acquired title to the lands under the United States, the State, and 
 the railroad company ; while the other valley lands from Great 
 Bend to the west line of Kansas were taken up between 1872 and 
 1884, and have been since occupied by settlers and purchasers from 
 the State and company. All of the lands of the valley have been 
 thus occupied, held and owned by the original settlers and their 
 grantees, who have continuously held and owned all riparian 
 and other rights in any way appertaining or belonging to the 
 lands. 
 
 The bill further averred that under an act of Congress of March 
 2, 1889, certain lots were transferred to the State of Kansas, and 
 had been since used for the maintenance of a soldiers’ home thereon, 
 in accordance with the provisions of the act ; that these lands con- 
 sisted of one hundred and twenty-six and fifty-six one-hundredths 
 acres of bottom lands of the valley, adjoining and abutting on the 
 bed of the river, and were fertile and well adapted to the raising of 
 fruits, grains and vegetables when supplied with moisture, but that 
 the value thereof depended entirely on the flow of water in the bed 
 of the river and on the under flow beneath the land. That the 
 
Tttk STATE OF COLORADO ET AL. 
 
 33 
 
 State Was and had been during its entire ownership of the tract 
 using a large portion of the same for raising grains, fruits, vegetables 
 and grasses thereon for the needs of the institution, and as the owner 
 was and had been since 1889 “entitled to the full, free and natural 
 flow of all waters which naturally would flow in said river and be- 
 neath said land ; and the rights of the State thereto are prior and 
 superior to any right or claim of the State of Colorado accruing, ac- 
 quired or established subsequent to said date.” 
 
 It was also alleged that since 1885 the State of Kansas had been 
 the owner of six hundred and forty acres situated in Reno count} 7 , 
 on which it had erected a large institution for the purpose of an 
 industrial reformatory, and that the greater portion of the lands 
 were used for farming purposes in connection with the institution, 
 and the production of grain, vegetables, &c., for its needs; that the 
 lands are bottom lands in the valley of the Arkansas, furnished 
 with moisture sufficient for the growing of crops thereon solely from 
 the underflow of the river, the rainfall in ordinary seasons being 
 entirely inadequate; and that the title of the State’s grantors dated 
 from 1873. And “ by reason of the foregoing, the State of Kansas 
 is entitled to the full natural flow of the water of the Arkansas river 
 in its accustomed place and at its normal height and in its natural 
 volume underneath all of the said reformatory lands. The rights 
 of the State thereto relate back to May 19, 1873, and are prior and 
 superior to any right or claim of the State of Colorado accruing, 
 acquired or established subsequent to said date.” 
 
 The bill further averred that the constitution of the State of Colo- 
 rado provided in sections five and six of article fifteen as follows: 
 
 “ Sec. 5. The water of every natural stream not heretofore appro- 
 priated within the State of Colorado is hereby declared to be the 
 property of the public, and the same is dedicated to the uses of the 
 people of the State subject to appropriation as hereinafter provided. 
 
 “ Sec. 6. The right to divert unappropriated waters of any natural 
 stream for beneficial uses shall never be denied. Priority of appro- 
 priation shall give the better right as between those using the water 
 for the same purposes ; but when the waters of any natural stream 
 are not sufficient for the service of all, those using the water for do- 
 mestic purposes shall have the preference over those claiming for 
 any other purpose, and those using the water for agricultural pur- 
 poses shall have the preference over those using the same for manu- 
 facturing purposes.” 
 
 That the legislature of Colorado has from time to time passed 
 numerous laws purporting to authorize the diversion of water from 
 the Arkansas river and its tributaries, in that State, for uses and pur- 
 poses other than domestic ; “more particularly for the purpose of 
 irrigating arid and waste lauds for agricultural purposes in said 
 State.” That in and by its laws and through its officers and courts 
 Colorado has assumed “ to grant to divers persons, firms and corpo- 
 rations the right and authority to divert the waters of the Arkansas 
 river and its tributaries in Colorado from their natural channels, 
 3—7 
 
u 
 
 THE STATE OF KANSAS V§. 
 
 and to cause said waters to flow into and through canals and ditched 
 constructed for the purpose, extending great distances away from 
 the natural channels of said streams,, and to store said waters and to 
 empty the same upon high arid lands, not riparian to said streams, 
 where large portions of such waters are lost from evaporation, and 
 the remainder sinks into the earth, as a result of which, all of said 
 waters are forever lost to such streams and are thus and thereby 
 prevented from flowing into or through the State of Kansas.” 
 
 That in pursuance of the constitutional provisions and statutes of 
 Colorado, many persons, firms and corporations claim to have ac- 
 quired rights to divert water from the river and its tributaries for 
 the purpose of irrigating arid, non-riparian lands in that State, each 
 of them owning one or more ditches or canals, some being of great 
 capacity and many miles in length. And many of these persons, 
 firms and corporations “ have constructed great reservoirs within 
 which to store, and in which are stored .for use, vast quantities of 
 the water of said streams before using it for the purpose of irriga- 
 tion.” 
 
 That these ditch owners and the State of Colorado are now divert- 
 ing the waters flowing in the bed of the Arkansas river and its 
 tributaries, and carrying them to great distances from their natural 
 courses, and discharging them for agricultural purposes on “ arid and 
 ncn-riparian lands, where such waters are wholly lost to such streams 
 and to the State of Kansas and its inhabitants. That such diver- 
 sion is carried to such an extent that no water flows in the bed of 
 said river from the State of Colorado into the State of Kansas dur- 
 ing the annual growing season, and the underflow of said river in 
 Kansas is diminishing and continuing to diminish, and if the said 
 diversion continues to increase, the bottom lands of said valley will 
 be injured to an enormous extent, and a large portion thereof will 
 be utterly ruined and will become deserted and be a part of an arid 
 desert.” 
 
 That the State of Colorado, through its laws, legislatures, officers 
 and agents, assumes to authorize canal and ditch owners to take, 
 carry away, and so use the waters of the streams, and to regulate 
 and control the distribution thereof to land owners for irrigation 
 purposes; that other canals and ditches for the irrigation of arid, 
 non-riparian lands are contemplated, and the extension of branches 
 and laterals; that this system is "being continuously carried on in 
 the drainage area of the Arkansas valley, and that unless restrained 
 therefrom Colorado will grant additional rights for the construction 
 of other canals and ditches sufficient to divert all the water in the 
 river so that none will flow into Kansas. 
 
 That Colorado has since 1890 constructed and owns and manages 
 a great canal for diverting water of the Arkansas river from its 
 channel, and using it on arid, non-riparian lands, so that it will not 
 return to or again flow in the river ; and the State permits its agents 
 to divert into said canal water to the amount of seven hundred and 
 fifty-six and twenty-eight one hundredths cubic feet per second, 
 
THE STATE OE COLORADO ET AL. 3§ 
 
 which is approximately the natural flow of the river at the place of 
 the diversion. 
 
 That the water so diverted is sold by the State of Colorado to per- 
 sons owning lands in the vicinity and is used by such owners in 
 irrigating arid, non-riparian lands, when but for the diversion it 
 would flow into Kansas and through said valley. 
 
 That the State of Colorado is threatening to build, and will 
 build unless restrained, other similar canals with the intention of 
 diverting other large quantities of water from the river, and irri- 
 gating other arid, non-riparian lands, and the legislature of that 
 State has authorized their construction ; and the State of Colorado 
 also intends to and will unless restrained, extend its existing canal 
 and build branches and laterals. 
 
 That Colorado has by legislation appropriated large sums of 
 money for the construction of reservoirs for the storage of water 
 from the streams tributary to the Arkansas river, and provided for 
 the control thereof, and the sale of the waters so stored for the irri- 
 gation of arid lands, non-riparian to the streams from which the 
 waters are takon. That the State has constructed and is using four 
 of such reservoirs holding vast quantities of water which would 
 otherwise flow into the State of Kansas ; and by reason of the use 
 of those waters no portion thereof is permitted to return to its nat- 
 ural channel or flow in the river. That the State of Colorado is now 
 preparing to construct and intends to construct, and unless restrained, 
 will construct, at various points along the river and its tributaries, 
 vast reservoirs in which to further store and hold the natural and 
 flood waters of said stream ; “ and it is the intention and expectation 
 of said State so to store and withhold and divert from the channel 
 of said river all of the water thereof.” That surveys for these reser- 
 voirs had been made and plans and specifications were being pre- 
 pared for their construction, and the State is preparing to enter on 
 the construction thereof. That if these reservoirs are so constructed 
 by Colorado vast and enormous quantities of water which would 
 otherwise flow into the State of Kansas will be taken and held and 
 sold and used for the irrigation of arid and non-riparian lands, not 
 now irrigated, and will be forever lost to the river and the State of 
 Kansas, which will cause in Kansas in said valley a vast and ruin- 
 ous decline in agriculture, and great diminution of the wealth and 
 revenues of the State, and in its population and prosperity. 
 
 Complainant charged the facts to be “ that it is the intention of 
 the State of Colorado to divert absolutely all of the water that does, 
 can or might flow down the Arkansas river into the State of Kan- 
 sas, so that all of the water shall be used in the State of Colorado, 
 and none whatever, either above or below the surface, that may by 
 any possibility, be utilized, shall cross the line into the State of 
 Kansas, all to the great profit and advantage of the State of Col- 
 orado; and to the great damage and injury of the State of Kan- 
 sas.” 
 
 It was further stated that when the Territory of Kansas was or- 
 
TltE STATE OF KANSAS V3. 
 
 30 
 
 ganized in 1854 it extended from its present eastern boundary to 
 the summit of the Rocky mountains, and all of the present drainage 
 area of the Arkansas river in Colorado was then included therein, 
 and during all of the period from then to the organization of the 
 State of Kansas, the water of the river was wholly unappropriated, 
 and the common law and the riparian rights herein claimed extended 
 over the whole of the Arkansas valley and to the summits of the 
 Rocky mountains, and had for many years prior thereto. That by 
 reason of the prior settlement, occupation and title of the inhabitants 
 of Kansas upon and to the lands situated in the valley of said river, 
 including those upon its banks, Kansas and the owners of land in 
 the valley acquired, and now have the right to the uninterrupted 
 and unimpeded flow of all the waters of the river into and across 
 the State of Kansas ; which rights accrued prior to any of the diver- 
 sions by or in Colorado, and prior to the accruing of any of the 
 rights claimed by that State, or by persons, firms or corporations 
 therein now taking water from the river or its tributaries. 
 
 The bill further averred that the State of Colorado and the various 
 persons, firms and corporations engaged in taking waters from the 
 river and its tributaries under and in pursuance of authority granted 
 by the State of Colorado, have by so doing wrongfully, illegally and 
 unlawfully diverted the water from the accustomed channel across 
 the State of Kansas, and have greatly damaged and irreparably 
 injured the State of Kansas, and its inhabitants. That by reason of 
 such diversion the fertility of all the valley lands in Kansas, includ- 
 ing those on the river banks as well as others, has been greatty 
 diminished, and the crops, trees and vegetation have languished 
 and declined, and in many places perished, and wells which should 
 furnish water for domestic use and animals have become dry. That 
 these damages are the proximate and necessary result of the diver- 
 sion of the waters, and that such damage amounts to vast sums an- 
 nually, which damages have increased year by year for the past ten 
 years, substantially in proportion as the diversion of the waters in 
 the State of Colorado has increased. 
 
 It was also stated that by reason of the diversion of the waters as 
 described, during the summer season and dry portion of the year, 
 the bed of the river in Kansas above the city of Wichita becomes 
 practically, and oftentimes wholly dry, and because of the natural 
 features of the territory through which the stream passes, which are 
 set forth, the channel becomes filled up and great damage is inflicted 
 at times of sudden and excessive rainfall in Kansas or sudden and 
 excessive melting of snows in Colorado. 
 
 That the property of complainant, situated on the banks of the 
 river and used for the purposes of a soldiers’ home, has been greatly 
 damaged and specially injured by reason of the diversion of the 
 water, which would otherwise flow by and underneath the said tract 
 of land, and unless the natural and normal flow is restored the 
 value of the property will be entirely destroyed. And that the 
 
THE STATE OF COLORADO ET AL. 
 
 37 
 
 same is true of complainant’s property used for the purposes of a 
 State industrial reformatory. 
 
 The bill further averred that a large number of irrigation canals 
 and ditches, now wrongfully used in diverting the waters of the 
 Arkansas river and its tributaries from their accustomed channels 
 in Colorado, are owned and operated by domestic corporations or- 
 ganized for that purpose under the laws of Colorado, with limited 
 periods of existence, and that if Colorado be not restrained from 
 doing so, she will grant extensions of the charters now held, and 
 also grant other and new charters to corporations organized for the 
 purpose of unlawfully and wrongfully diverting and using said 
 waters for irrigation purposes, all to the irreparable injury of the 
 State of Kansas and its inhabitants. 
 
 The bill then prayed “ that a decree may be entered prohibiting, 
 enjoining and restraining the State of Colorado from granting, issu- 
 ing, or permitting to be granted or issued hereafter, any charter, 
 license, permit or authority to any person, firm or corporation for 
 the diversion of any of the waters of the Arkansas river or of any 
 of its tributaries from their natural beds, courses and channels 
 within the State of Colorado, except for domestic use ; and from 
 granting to any person, firm or corporation any right to extend or 
 enlarge any of the canals or ditches, now existing ; or to construct 
 and operate any other canals, ditches, branches, laterals or reservoirs 
 in addition to those heretofore constructed and now in use in said 
 State.” 
 
 “That the said State of Colorado may be prohibited, enjoined, 
 and restrained, as a State, from itself constructing, owning, or oper- 
 ating, either directly or indirectly, any canal or ditch whereby the 
 waters of said river, or any of its tributaries, shall be diverted from 
 their natural courses and channels; and from constructing, owning, 
 operating or using any reservoir for the storage of the waters of 
 said river, or any of its tributaries, for purposes of irrigation.” 
 
 “ That the said State of Colorado may be prohibited, enjoined 
 and restrained from granting to an}" person, firm or corporation any 
 extension of any charter, license, permit, or authority, of any kind 
 or nature whatsoever, for the diversion of any of said waters from 
 said river or its tributaries for irrigation purposes or for the continu- 
 ance of such diversion thereof after the charter, license, permit or 
 authority theretofore granted for that purpose shall have expired.” 
 
 And for general relief. 
 
 Thereupon, October 15, 1901, the State of Colorado, by leave, filed 
 its demurrer to the bill of complaint, assigning the following 
 causes : 
 
 “First. That this court has no jurisdiction of either the parties 
 to or the subject matter of this suit because it appears on the face 
 of said bill of complaint that the matters set forth therein do not 
 constitute, within the meaning of the Constitution of the United 
 
38 
 
 THU STATE OF KANSAS VS. 
 
 States, any controversy between the State of Kansas and the State 
 of Colorado. 
 
 “Second. Because the allegations of said bill show that the issues 
 presented by said bill arise, if at all, between the State of Kansas 
 and certain private corporations and certain persons in the State of 
 Colorado who are not made parties herein and which matters so 
 stated, if true, do not concern the State of Colorado as a corporate 
 body or State. 
 
 “ Third. Because said bill shows upon its face that this suit is in 
 reality for and on behalf of certain individuals who reside in the 
 said State of Kansas on the banks of the Arkansas river, and that 
 although the said suit is attempted to be prosecuted for and in the 
 name of the State of Kansas, said State is in fact loaning its name 
 to said individuals and is only a nominal party to said suit and that 
 the real parties in interest are the said private parties and persons 
 residing in said State. 
 
 “ Fourth. Because it appears from the face of said bill that the 
 State of Kansas in her right of sovereignty is seeking to maintain 
 this suit for the redress of the supposed wrongs of certain private 
 citizens of said State while under the Constitution of the United 
 States and the laws enacted thereunder, said State possesses no such 
 sovereignty as empowers it to bring an original suit in this court for 
 such purposes. 
 
 “ Fifth. Because it appears upon the face of said bill of complaint 
 that no property rights of the State of Kansas are in any manner 
 affected by the matters alleged in said bill of complaint; nor is there 
 any such property right involved in this suit as would give this 
 court original jurisdiction of this cause. 
 
 “ Sixth. Because it appears from the face of said bill of complaint 
 that the acts complained of are not done by the State of Colorado or 
 under its authority, but by certain private corporations and indi- 
 viduals against whom relief is sought and who are not made parties 
 herein. 
 
 “Seventh. The bill is multifarious in this, to wit: that thereby 
 the State of Kansas seeks to determine the claims of the State of 
 Kansas as a riparian owner against the claims of the State of Colo- 
 rado as an appropriator of water; the claims of the State of Kansas 
 as a riparian owner against the separate and severable claims of 
 numerous undisclosed Colorado appropriators of water; the separate 
 and severable claims of various disclosed and undisclosed riparian 
 claimants in Kansas against the claims of the State of Colorado as 
 an appropriator of water; and the separate and severable claims of 
 various disclosed and undisclosed riparian claimants in Kansas 
 against the separate and severable claims of numerous undisclosed 
 Colorado appropriators ; and otherwise, as is apparent from the 
 bill. 
 
 “Eighth. Because the acts and injuries complained of consist of 
 the exercise of rights and the appropriation of water upon the na- 
 
THE STATE OF COLORADO ET AL. 
 
 39 
 
 tional domain in conformity with and by virtue of divers acts of 
 Congress in relation thereto. 
 
 “Ninth. Because the constitution of the State of Colorado declar- 
 ing public property in the waters of its natural streams and sanction- 
 ing the right of appropriation was enacted pursuant to national 
 authority and ratified thereby at the time of admission of the State 
 into the Union. 
 
 “ Tenth. Said bill of complaint is in other respects uncertain, in- 
 formal and insufficient and does not state facts sufficient to entitle 
 the State of Kansas to the equitable relief prayed for.” 
 
 The demurrer was set down for argument, and duly argued Feb- 
 ruary 24 and 25, 1902. 
 
 Mr. Chief Justice Fuller delivered the opinion of the court: 
 
 The original jurisdiction of this court over “controversies between 
 two or more States” was declared by the judiciary act of 1789 to be 
 exclusive, as in its nature it necessarily must be. 
 
 Reference to the language of the Constitution providing for its 
 exercise, to its historical origin, to the decisions of this court in 
 which, the subject has received consideration, which was made at 
 length in Missouri v. Illinois, 180 U. S., 208, demonstrates the com- 
 prehensiveness, the importance and the gravity of this grant of 
 power, and the sagacious foresight of those by whom it was framed. 
 By the first clause of section 10 of article I of the Constitution it was 
 provided that “no State shall enter into any treaty, alliance or con- 
 federation;” and by the third clause that “no State shall, without 
 the consent of Congress * * * keep troops or ships of war in 
 
 time of peace, enter into any agreement or compact with another 
 State, or with a foreign power, or engage in war, unless actually in- 
 vaded, or in such imminent danger as will not admit of delay.” 
 
 Treaties, alliances, and confederations were thus wholly pro- 
 hibited, and Judge Tucker in his Appendix to Blackstone (vol. 1, p. 
 310) found the distinction between them and “ agreements or com- 
 pacts” mentioned in the third clause, in the fact that the former re- 
 lated “ordinarily to subjects of great national magnitude and im- 
 portance, and are often perpetual, or made for a considerable period 
 of time,” but agreements or compacts concerned “ transitory or local 
 affairs, or such as cannot possibly affect any other interest but that 
 of the parties.” But Mr. Justice Story thought this ah unsatisfactory 
 exposition, and that the language of the first clause might be more 
 plausibly interpreted “ to apply to treaties of a political character, 
 such as treaties of alliance for purposes of peace and war; and 
 treaties of confederation, in which the parties are leagued for mutual 
 government, political co-operation, and the exercise of political 
 sovereignty ; and treaties of cession of sovereignty, or conferring in- 
 ternal political jurisdiction, or external political dependence, or 
 general commercial privileges; “while compacts and agreements 
 might be very properly applied” to such as regarded what might 
 be deemed mere private rights of sovereignty; such as questions of 
 
40 
 
 THE STATIC OF KANSAS VS. 
 
 boundaries; interests in land situate in the territory of each other; 
 and other internal regulations for the mutual contort and con- 
 venience of States bordering on each other.” 2 Story, Const, secs. 
 1402, 1403; Louisiana v. Texas, 176 U. S. 1. 
 
 Undoubtedly, as remarked bv Mr. Justice Bradley in Hans v. 
 Louisiana, 134 U. S., 1, 15, the Constitution made some things jus- 
 ticiable, “which were not known as such at the common law; such, 
 for example, as controversies between States as to boundary lines, 
 and other questions admitting of judicial solution.” And as the 
 remedies resorted to by independent States for the determination of 
 controversies raised by collision between them were withdrawn 
 from the States by the Constitution, a wide range of matters, sus- 
 ceptible of adjustment and not purely political in their nature, was 
 made justiciable by that instrument. 
 
 In Missouri v. Illinois, and The Sanitary District of Chicago, 180 
 U, S., 208, it was alleged that an artificial channel or drain con- 
 structed by the sanitary district for purpose of sewerage under au- 
 thority derived from the State of Illinois, created a continuing 
 nuisance dangerous to the health of the people of the State of Mis- 
 souri, and the bill charged that the acts of defendants, if not re- 
 strained, would result in poisoning the water supply of the inhab- 
 itants of Missouri, and in injuriously affecting that portion of the 
 bed of the Mississippi river lying within its territory. In disposing 
 of a demurrer to the bill, numerous cases involving the exercise of 
 original jurisdiction by this court were examined, and the court, 
 speaking through Mr. Justice Shiras said: “The cases cited show 
 that such jurisdiction has been exercised in cases involving bound- 
 aries and jurisdiction over lands and their inhabitants, and in cases 
 directly affecting the property rights and interests of a State. But 
 such cases manifestly do not cover the entire field in which such 
 controversies may arise, and for which the Constitution has provided 
 a remedy ; and it would be objectionable, and, indeed, impossible 
 for the court to anticipate by definition what controversies can and 
 what cannot be brought within the original jurisdiction of this 
 court. An inspection of the bill discloses the nature of the injury 
 complained of is such that an adequate remedy can only be found 
 in this court at the suit of the State of Missouri. It is true that no 
 question of boundary is involved, nor of direct property rights be- 
 longing to the complainant State, but it must surely be conceded 
 that, if the health and comfort of the inhabitants of a State are 
 threatened, the State is the proper party to represent and defend 
 them. If Missouri were an independent and sovereign State all 
 must admit that she could seek a remedy by negotiation, and, that 
 failing, by force. Diplomatic powers and the right to make war 
 having been surrendered to the General Government, it was to be 
 expected that upon the latter would be devolved the duty of pro- 
 viding a remedy and that remedy, we think, is found in the consti- 
 tutional provisions we are considering. The allegations of the bill 
 plainly prevent such a case. The health and comfort of the large 
 
THE STATE OF COLORADO ET AL. 
 
 41 
 
 communities inhabiting those parts of the State situated on the Mis- 
 sissippi river are not alone concerned, but contagious and tvphoidal 
 diseases introduced in the river communities may spread themselves 
 throughout the territory of the State. Moreover substantial im- 
 pairment of the health and prosperity of the towns and cities of the 
 State situated on the Mississippi river, including its commercial 
 metropolis, would injuriously affect the entire State. That suits 
 brought by individuals, each for personal injuries, threatened or re- 
 ceived, would be wholly inadequate and disproportionate remedies, 
 requires no argument.” 
 
 As will be perceived, the court there ruled that the mere fact that 
 a State had no pecuniary interest in the controversy, would not de- 
 feat the original jurisdiction of this court, which might be invoked 
 by the State as parens patriae, trustee, guardian or representative of 
 all or a considerable portion of its citizens; and that the threatened 
 pollution of the waters of a river flowing between States, under the 
 authority of one of them, thereby putting the health and comfort of 
 the citizens of the other in jeopardy, presented a cause of action jus- 
 tifiable under the Constitution. 
 
 In the case before us, the State of Kansas files her bill as repre- 
 senting and on behalf of her citizens, as well as in vindication of her 
 alleged rights as an individual owner, and seeks relief in respect of 
 being deprived of the waters of the river accustomed to flow through 
 and across the State, and the consequent destruction of the property 
 of herself and of her citizens and injury to their health and comfort. 
 The action complained of is State action and not the action of State 
 officers in abuse or excess of their powers. 
 
 The State of Colorado contends that, as a sovereign and independ- 
 ent State, she is justified, if her geographical situation and material 
 welfare demand it in her judgment, in consuming for beneficial 
 purposes all the waters within her boundaries; and that as the 
 sources of the Arkansas river are in Colorado, she may absolute^ 
 and wholly deprive Kansas and her citizens of any use of or share 
 in the waters of that river. She says that she occupies toward the 
 State of Kansas the same position that foreign States occupy toward 
 each other, although she admits that the Constitution does not con- 
 template that controversies between members of the United States 
 may be settled by reprisal or force of arms, and that to secure the 
 orderly adjustment of such differences, power was lodged in this 
 court to hear and determine them. The rule of decision, however, 
 it is contended, is the rule which controls foreign and independent 
 States, in their relations to each other; that by the law of nations 
 the primary and absolute right of a State is self-preservation ; that 
 the improvement of her revenues, arts, agriculture and commerce 
 are incontrovertible rights of sovereignty ; that she has dominion 
 over all things within her territory, including all bodies of water, 
 standing or running within her boundary lines ; that the moral obli- 
 gations of a State to obseive the demands of comity cannot be made 
 the subject of controversy between States; and that only those con- 
 
42 
 
 THE STATE OF KANSAS VS. 
 
 troversies are justiciable in this court, which, prior to the the Union, 
 would have been just cause for reprisal by the complaining State, 
 and that, according to international law, reprisal can only be made 
 when a positive wrong has been inflicted or rights sir icti juris with- 
 held. 
 
 But when one of our States complains of the infliction of such 
 wrong or the deprivation of such rights by another State, how shall 
 the existence of cause of complaint be ascertained, and be accommo- 
 dated if well founded? The States of this Union cannot make war 
 upon each other. They cannot “ grant letters of marque and re- 
 prisal.” They cannot make reprisal on each other by embargo. 
 They cannot enter upon diplomatic relations and make treaties. 
 
 As Mr. Justice Baldwin remarked in Rhode Island v. Massachu- 
 setts, “ Bound hand and foot by the prohibitions of the Constitution, 
 a complaining State can neither treat, agree or fight with its adver- 
 sary, without the consent of Congress; a resort to the judicial power 
 is the onty means left for legally adjusting, or persuading a State 
 which has possession of disputed territory, to enter into an agree- 
 ment or compact, relating to a controverted boundary. Few, if any, 
 will be made, when it is left to the pleasure of the State in posses- 
 sion ; but when it is known that some tribunal can decide on the 
 right, it is most probable that controversies will be settled by com- 
 pact.” 12 Pet. 726. 
 
 “ War,” said Mr. Justice Johnson, “ is a suit prosecuted by the 
 sword ; and where the question to be decided is one of original claim 
 to territory, grants of soil mad e flagrante bello by the party that fails, 
 can only derive validity from treaty stipulations.” 12 Wheat. 528. 
 
 The publicists suggest as just causes of war, defense; recovery of 
 one’s own; and punishment of an enemy. But as between States 
 of this Union, who can determine what would be a just cause of 
 war ? 
 
 Comity demanded that navigable rivers, should be free, and there- 
 fore the freedom of the Mississippi, the Rhine, the Scheldt, the 
 Danube, the St. Lawrence, the Amazon, and other rivers has been 
 at different times secured by treaty ; but if a State of this Union de- 
 prives another State of its rights in a navigable stream, and Congress 
 has not regulated the subject, as no treaty can be made between them, 
 how is the matter to be adjusted? 
 
 Applying the principles settled in previous cases, we have no 
 special difficulty with the bare question whether facts might not 
 exist which would justify our interposition, while the manifest im- 
 portance of the case and the necessity of the ascertainment of all the 
 facts before the propositions of law can be satisfactorily dealt with, 
 lead us to the conclusion that the cause should go to issue and proofs 
 before final decision. 
 
 The pursuit of this course, on occasion, is thus referred to by Mr. 
 Daniell, (p. 542): “ The court sometimes declines to decide a doubt- 
 ful question of title on demurrer; in which case, the demurrer will 
 be overruled, without prejudice to any question. A demurrer may 
 
THE STATE OF (JOLOKADO ET AL. 
 
 43 
 
 also be overruled, with liberty to the defendant to insist upon the 
 same defense by answer, if the allegations of the bill are such that the 
 case ought not to bedecided without an answer being put in. * * * 
 A demurrer will lie wherever it is clear that, taking the charges in 
 the bill to be true, the bill would be dismissed at the hearing ; but 
 it must be founded on this: that it is an absolute, certain, and clear 
 proposition that it would be so; for if it is a case of circumstances, 
 in which a minute variation between them as stated by the bill, and 
 those established by the evidence, may either incline the court to 
 modify the relief or to grant no relief at all, the court, although it 
 sees that the granting the modified relief at the hearing will be 
 attended with considerable difficulty, will not support a demurrer.’’ 
 
 Without subjecting the bill to minute criticism, we think its 
 averments sufficient to present the question as to the power of one 
 State of the Union to wholly deprive another of the benefit of water 
 from a river rising in the former and, by nature, flowing into and 
 through the latter, and that, therefore, this court, speaking broadly, 
 has jurisdiction. 
 
 We do not pause to consider the scope of the relief which it might 
 be possible to accord on such a bill. Doubtless the specific prayers 
 of this bill are in many respects open to objection, but there is a 
 prayer for general relief, and under that, such appropriate decree as 
 the facts might be found to justify, could be entered, if consistent 
 with the case made by the bill, and not inconsistent with the specific 
 prayers in whole or in part, if that were also essential. Tayloe v. 
 Insurance Company, 9 How., 390, 406 ; Daniell, Ch. Pr. (4th Am. 
 ed.), 380. 
 
 Advancing from the preliminary inquiry, other propositions of 
 law are urged as fatal to relief, most of which, perhaps all, are de- 
 pendent on the actual facts. The general rule is that the truth of 
 material and relevant matters, set forth with requisite precision, are 
 admitted by demurrer, but in a case of this magnitude, involving 
 questions of so grave and far-reaching inportance, it does not seem 
 to us wise to apply that rule, and we must decline to do so. 
 
 The gravaman of the bill is that the State of Colorado, acting 
 directly herself, as well as through private persons thereto licensed, 
 is depriving and threatening to deprive the State of Kansas and its 
 inhabitants of all the water heretofore accustomed to flow in the 
 Arkansas river through its channel on the surface, and through a 
 subterranean course, across the State of Kansas ; that this is threatened 
 not only by the impounding, and the use of the water at the river’s 
 source, but as it flows after reaching the river. Injury, it is averred, 
 is being, and would be, thereby inflicted on the State of Kansas as 
 an individual owner and on all the inhabitants of the State, and 
 especially on the inhabitants of that part of the State lying in the 
 Arkansas valley. The injury is asserted to be threatened, and as 
 being wrought, in respect of lands located on the banks of the river ; 
 lands lying on the lines of a subterranean flow ; and lands lying 
 some distance from the river either above or below ground, but de- 
 
44 
 
 THE STATE OF KANSAS VS. 
 
 pendent on the river for a supply of water. And it is insisted that 
 Colorado in doing this is violating the fundamental principle that 
 one must use his own so as not to destroy the legal rights of another. 
 
 The State of Kansas appeals to the rule of the common law that 
 owners of lands on the banks of a river are entitled to the continual 
 flow of the stream, and while she concedes that this rule has been 
 modified in the Western States, so that flowing water may be appro- 
 priated to mining purposes and for the reclamation of arid lands, 
 and the doctrine of prior appropriation obtains, yet she says that 
 that modification has not gone so far as to justify the destruction of 
 the rights of other States and their inhabitants altogether ; and that 
 the acts of Congress of 1866 and subsequently, while recognizing 
 the prior appropriation of water as in contravention of the common 
 law rule as to a continuous flow, have not attempted to recognize it 
 as rightful to that extent. In other words, Kansas contends that 
 Colorado cannot absolutely destroy her rights and seeks some mode 
 of accommodation as between them, while she further insists that 
 she occupies for reasons given, the position of a prior appropriator 
 herself, if put to that contention as between her and Colorado. 
 
 Sitting, as it were, as an international, as well as a domestic tri- 
 bunal, we apply Federal law, State law, and international law, as 
 the exigencies of the particular case may demand, and we are un- 
 willing, in this case, to proceed on the mere technical admissions 
 made by the demurrer. Nor do we regard it as necessary, whatever 
 imperfections a close analysis of the pending bill may disclose, to 
 compel its amendment at this stage of the litigation. We think 
 proof should be made as to whether Colorado is herself actually 
 threatening to wholly exhaust the flow of the Arkansas river in 
 Kansas; whether what is described in the bill as the “ underflow ” 
 is a subterranean stream flowing in a known and defined channel, 
 and not merely water percolating through the strata below ; whether 
 certain persons, firms, and corporations in Colorado must be made 
 parties hereto ; what lands in Kansas are actual^ situated on the 
 banks of the river, and what, either in Colorado or Kansas, are ab- 
 solutely dependent on water therefrom ; the extent of the watershed 
 or the drainage area of the Arkansas river; the possibilities of the 
 maintenance of a sustained flow through the control of flood waters ; 
 in short, the circumstances, a variation in which might induce the 
 court to either grant, modify, or deny the relief sought or any part 
 thereof. 
 
 The result is that in view of the intricate questions arising on the 
 record, we are constrained to forbear proceeding until all the facts 
 are before us on the evidence. 
 
 Demurrer overruled , without prejudice to any question . and leave to 
 answer . 
 
 Mr. Justice Gray did not hear the argument, and took no part in 
 the decision. 
 
“DIE STATE OF COLORADO 1CT At . 
 
 45 
 
 Endorsed : 10. Original. Kansas v. Colorado. Opinion on de- 
 murrer per Mr. Chief Justice Fuller. Filed April 7, 1902. Revise. 
 Correct, J. H. McK. 1902. April 8. 
 
 And afterwards, to wit, on the 3d day of November, A. D. 1902, 
 the following order appears of record, viz : 
 
 In the Supreme Court of the United States, October Term, 1902. 
 
 The State of Kansas, Complainant, 1 
 
 vs. > No. 8, Original. 
 
 The State of Colorado. I 
 
 On motion of Mr. Frederic D. McKenney, in behalf of counsel, 
 leave is hereby granted to file the answer of the defendant and a 
 stipulation of counsel in relation thereto. 
 
 November 3d, 1902. 
 
 And on the same day, to-vvit, on the 3d day of November A. D. 
 1902, a stipulation was filed in the words and figures following, viz : 
 
 In the Supreme Court of the United States. 
 
 The State of Kansas, Complainant, ) 
 
 vs. V No. 8, Original. 
 
 Thk State of Colorado, Defendant. ) 
 
 It is hereby stipulated by and between the parties in the above 
 entitled cause, that the defendant may have the time until the 1st 
 day of November 1902 in which to file answer to the plaintiff’s com- 
 plaint; in the meantime the attorney general of Colorado is to fur- 
 nish the attorney general of Kansas copies of such answer on or 
 before the 25th day of October, 1902. 
 
 October 10th, 1902. 
 
 A. A. GODARD, 
 
 Attorney General of the State of Kansas. 
 
 CHAS. C. POST, 
 
 Attorney General of the State of Colorado. 
 
 Endorsed : Supreme Court of the United States. October term, 
 1902. No. 8, Original. State of Kansas, complainant, vs. State of 
 Colorado, defendant. Stipulation as to filing answer. A. A. God- 
 ard, att’y -general of Kansas. Chas. C. Post, att’y-general of Colo- 
 rado. Office Supreme Court U. S. Received Oct. 15, 1902. 
 
 Endorsed : Supreme Court U. S., October term, 1902. Term No. 
 8, original. The State of Kansas, complainant, vs. The State of Col- 
 orado. Stipulation as to filing answer. Filed Nov. 3", 1902. 
 
 And on the same day, to wit, on the 3d day of November, A. D. 
 1902, an answer was filed in the words and figures following, viz: 
 
40 
 
 T'HE STATE ok KANSAS VS. 
 
 In the Supreme Court of the United States. 
 
 The State of Kansas, Complainant, ) 
 
 vs. > Original Proceeding No. 8. 
 
 The State of Colorado, Defendant, j 
 
 Answer of Defendant to Bill of Complaint. 
 
 Charles C. Post, attorney general of Colorado, solicitor for defend- 
 ant. 
 
 Charles S. Thomas, Luther M. Goddard, Platt Rogers, Henry A. 
 Dubbs, of counsel. 
 
 In the Supreme Court of the United States. 
 
 The State of Kansas, Complainant, } 
 
 vs, > Original Proceeding No. 10. 
 
 The State of Colorado, Defendant, i 
 
 The Answer of the State of Colorado, Defendant, to the Bill of Com- 
 plaint of the State of Kansas, Complainant. 
 
 This defendant now and at all times hereafter, saving to itself all 
 and all manner of benefit or advantage of exception or otherwise 
 that can or may be had or taken to the many errors, uncertainties 
 and imperfections in the said bill contained for answer thereto or to 
 so much thereof as this defendant is advised it is material or neces- 
 sary for it to make answer to, answering, saitli : 
 
 First. This defendant admits that the rise, course, drainage area 
 and general physical characteristics of the Arkansas river and of 
 the valley thereof are as stated in the bill of complaint, but denies 
 that the said river is in fact, or within the laws or departmental 
 rules and regulations of the United States, a navigable stream either 
 within the State of Colorado or the State of Kansas; and denies that 
 any part of the course and flow of said river is beneath the surface 
 of the bottom lands of the valley of said river or that the course and 
 flow thereof is of any greater width than the channel of said river 
 between its banks or that there is any underflow of water in the 
 valley of said river passing from the State of Colorado into the State 
 of Kansas, or that any diminution of the surface flow of said river 
 will materially reduce or affect the water beneath the surface of the 
 lands in said valley in the State of Kansas. 
 
 Second. This defendant denies that by reason of the acts com- 
 plained of the value of the lands in the valley of the Arkansas, in 
 the State of Kansas, has been diminished or the revenue of the State of 
 Kansas arising therefrom, or which should or could arise therefrom, 
 has been in any wise affected. 
 
 Third. This defendant has no knowledge of the several convey- 
 
tEtE STATE OF COLORADO ET AL. 
 
 fthties or grants of land in the valley of the Arkansas river, in the 
 State of Kansas, heretofore made by the Government of the United 
 States, but avers that as to all conveyances or grants referred to in 
 said bill of complaint, the same were made subject to all rights to 
 water from said river for irrigation purposes theretofore and there- 
 after to be acquired, and were taken with full knowledge upon the 
 part of the State of Kansas, and of each and every grantee of said 
 lands, that the waters of said river had been, were being and 
 would be appropriated in the State of Colorado for beneficial uses in 
 the irrigation of land, and that the lands in said valley in the State 
 of Kansas, west of the 97th meridian, and in the State of Colorado, 
 could only be made available for agricultural purposes by the like 
 appropriation and use, and that the Government of the United 
 States, as the primary owner of said lands, had assumed that it held 
 the same subject to the appropriation of the waters of said river for 
 irrigation purposes. 
 
 Fourth. This defendant denies that the legislature of the State of 
 Colorado has passed laws authorizing or licensing the diversion of 
 water from said Arkansas river, or has granted to any person, firm 
 or corporation the right and authority to make such diversion, but 
 on the contrary, avers that said legislature has at all times recog- 
 nized the right to make such diversion as one existing independent 
 of any action by it and as one founded on necessity and on the 
 usages and customs of the arid region of the United States, existing 
 prior to the adoption of the constitution of the State of Colorado and 
 approved and confirmed by the statutes, decisions and rulings of 
 the legislative, judicial and executive departments of the United 
 States, and said legislature has never assumed the power to either 
 grant or restrain the right to divert the waters of the Arkansas river 
 for irrigation or other purposes, or to do more with respect to such 
 diversions than to regulate and control the same by appropriate 
 legislation. 
 
 Fifth. This defendant denies that, by the diversion of water 
 from the said river in the State of Colorado, no water flows into 
 the State of Kansas during the annual growing season, or that the 
 underflow of said river in the State of Kansas is thereby diminished, 
 or that, if diminished, the bottom lands of said river have become, 
 or will become, injured, ruined or deserted. 
 
 Sixth. This defendant admits that a canal was commenced about 
 the year 1890, near Canon City, under State control, but it avers 
 that it was subsequently learned that the ordinary and usual flow 
 of water in the Arkansas river during the irrigating season had 
 theretofore been appropriated by the persons, firms and corporations 
 mentioned in said bill of complaint, and that the construction thereof 
 was thereupon abandoned, and that no water has at any time been 
 diverted from said river into or through said canal bv this defend- 
 ant or at all, and that this defendant has not, at any place along 
 said river, taken or diverted any of the water thereof that would 
 otherwise have flowed into the State of Kansas as part of the usual 
 
48 
 
 s¥ate OF itAtfsAfc V& 
 
 and ordinary flow of said river, and is not now so doing or intend- 
 ing so to do, nor to construct works whereby the same may be 
 done. 
 
 Seventh. This defendant admits that certain reservoirs have been 
 constructed with money appropriated by the legislature of the State 
 of Colorado, in which to store the flood and storm waters of certain 
 tributaries of said Arkansas river, which would otherwise overflow 
 the banks of said tributaries, but said waters so stored have been 
 discharged from said reservoirs into said tributaries during periods 
 of low water for the purpose of equalizing the flow of water 
 in said tributaries, so that the same might be used for irriga- 
 tion purposes by private appropriators below ; but this defend- 
 ant has not stored, nor does it intend to store, the ordinary and 
 usual flow of said river or its tributaries, nor to interfere, by storage 
 in reservoirs, now or hereafter to be constructed, with the usual and 
 ordinary flow of said river in the Stale of Kansas. 
 
 Eighth. This defendant denies that when the Territory of Kansas 
 was created or the State of Kansas admitted to the Union, the water 
 of said Arkansas river w r as wholly unappropriated, or that the com- 
 mon law and the riparian rights claimed in said bill of complaint 
 extended over said valley in the State of Kansas, or that the owners 
 of lands along said river were entitled to the unimpeded flow of the 
 water of said river, but, on the contrary, avers that numerous appro- 
 priations of said water had been made for irrigation purposes long 
 prior to the creation of said Territory, and many more were made 
 prior the conveyance by the Government of the United States of 
 any of the lands lying along or adjacent to said river, and that the 
 necessity and right to di /ert the water of said river for the reclama- 
 tion of arid land had, long previous to the creation of said Territory, 
 been asserted and exercised b} r persons in possession of said land, 
 and said necessity and right were thereafter recognized by the leg- 
 islature of the Territory of Kansas, and all lands along said river 
 acquired by the State of Kansas, or by individuals or corporations 
 within the Territory or State of Kansas, were taken and held with 
 knowledge of the necessity of diverting the water of said river for the 
 purpose of claiming and making productive the lauds along said 
 river west of the 97th meridian, and that appropriations had been, 
 were being, and would be made in that portion of the valley which 
 is now within the jurisdiction of the State of Colorado, and that to 
 the extent of said appropriations the flow of water of said river 
 might, by the usages and customs then prevailing, be lawfully 
 impeded. 
 
 Ninth. This defendant denies that, by the taking of water from 
 said river in the State of Colorado in the manner alleged in said 
 bill of complaint, the State of Kansas, or any of its citizens, or the 
 owners of land along said river in the State of Kansas, have been 
 injured in any degree whatever ; or that the fertility of the lands, or 
 the use thereof to the fullest extent to which the same is naturally 
 capable of use, have been diminished or impaired ; or that the crops. 
 
The state of Colorado et al. 49 
 
 trees and vegetation growing along said river have perished or will 
 perish ; or that the wells have become or will become dry; or that 
 the salubrity or healthfulness of said valley, or of the lands adjacent 
 to said river have been or will be impaired. 
 
 Tenth. This defendant denies that the right of domestic corpora- 
 tions to appropriate the water of said Arkansas river in the State 
 of Colorado for purposes of irrigation is limited to the period of 
 existence of such corporations, or that a renewal of the corporate 
 existence is necessary to continue such right, but, on the contrary, 
 avers that all appropriations of water, whether made by persons or 
 corporations, are deemed and held to be in perpetuity. 
 
 This defendant for its first separate and further answer to the bill 
 of complaint, says : 
 
 First. The several appropriations of the waters of the Arkansas 
 river complained of in said bill of complaint were made in accord- 
 ance with and in reliance upon the doctrine respecting the appro- 
 priation of the water of the natural streams for beneficial uses which, 
 by usage and custom prevailed in the arid region of the United 
 States at the time of said appropriations, and which, by the recog- 
 nition and approval of the United States, has at all times been the 
 law applicable to the public lands in said arid region. 
 
 Second. Prior to the acquisition of private title to any of the lands 
 acquired by the General Gevernment from France, Mexico and 
 Texas by purchase, cession and annexation, respectively, comprising 
 all the lands now within the jurisdiction of the United States be- 
 tween the Mississippi river and the Pacific coast, said General Gov- 
 ernment caused said lands to be explored and reported upon for 
 the purpose of ascertaining the natural resources and the physical 
 and climatic characteristics of the various portions thereof, and by 
 said explorations and information obtained from time to time, it be- 
 came known to the United States and the inhabitants thereof that 
 from about the 97th meridian to the coast range of the Pacific slope, 
 the land was an arid waste without timber or useful vegetation, ex- 
 cept in the mountains, and that although the soil was rich and fer- 
 tile, and great deposits of gold, silver and other valuable minerals 
 existed therein, the soil could not be made productive nor the min- 
 erals extracted, nor could the land be inhabited, except by the 
 diversion of water from the natural streams and the application 
 thereof to agricultural and mining uses. 
 
 Third. With the earliest settlement in said arid region for agri- 
 cultural and mining purposes, which was long prior to the opening 
 of said lands to pre-emption and purchase, by necessity, common 
 consent and uniform practice, the doctrine obtained that the waters 
 of all the natural streams flowing through said arid region were sub- 
 ject to diversion and use for agricultural and mining purposes, and 
 that the right to the water thus diverted could be obtained both as 
 against the United States as the owner of the public lands and all 
 grantees of the United States of lands lying along said streams, and 
 that the right of the several appropriators from any given stream 
 
t£e state of Kansas vs. 
 
 So 
 
 should be in the order of diversion and use, the first in time being 
 first in right, and said doctrine has at all times been and now is 
 the customary law of said arid region in respect to the natural 
 streams thereof. 
 
 Fourth. Upon the creation and admission of the several Terri- 
 tories and States of said arid region, including Kansas, both as 
 a Territory and State, they recognized, approved and confirmed, and 
 from thence hitherto have enforced said doctrine, and rights to 
 water by diversion from the streams of said arid region have been 
 maintained as against all claims of riparian rights. 
 
 Fifth. The Government of the United States, long prior to the 
 sale by it of any of the public lands in the Arkansas valley, recog- 
 nized and approved said doctrine, and applied the same to said pub- 
 lic lands, and renounced all riparian rights which it might have 
 asserted in contravention of said doctrine, and from thence hitherto 
 has held and disposed of said lands subject to and in accordance 
 with said doctrine, and has at all times encouraged and promoted 
 the diversion and use of the water of the streams in said arid re- 
 gion for agricultural and mining purposes, and by grants of public 
 money has aided in the construction of canals, ditches and reser- 
 voirs and other appliances for the diversion, storage and use of 
 water, in the reclamation and cultivation of the public lands. 
 
 Sixth. By an act of Congress, approved September 4, 1841, and 
 by subsequent acts relating thereto, the public lands, including the 
 lands in said arid region were declared subject to pre-emption and 
 purchase, and all persons desiring to avail themselves of the pro- 
 visions of said act were required to make a settlement upon the land 
 in person and to inhabit and improve the same. It was then, and 
 at all times since has been well known to the General Government 
 and particularly to Congress and the executive departmentshaving 
 in charge the administration of said acts, that the provisions thereof 
 in respect to settlement, inhabitancy and improvement could not be 
 complied with in the pre-emption and purchase of arid lands, except 
 by the diversion of the waters of the streams upon the public lands 
 and the application thereof to domestic and irrigation purposes in 
 reliance upon the continuance of the right so to do in accordance 
 with said doctrine of appropriation. 
 
 Seventh. By means of the diversion and use of the waters of said 
 natural streams, man] million acres of the public lands in said 
 arid region have been settled upon, inhabited and improved and 
 title thereto obtained from the General Government, in the belief 
 that by its action and conduct in the disposition of its public lands, 
 the United States had accepted and applied to said public lands the 
 doctrine of appropriation as hereinbefore set forth ; and there has 
 been paid to said General Government, on account of said lands so 
 improved by the diversion and use of water in accordance with said 
 doctrine, upwards of twenty million dollars, and all of the lands in 
 the valley of the Arkansas in the State of Colorado, save and ex- 
 cept certain Indian lands, were settled upon and patents therefor 
 
THE STATE OF COLORADO ET AL. 
 
 51 
 
 obtained by proof of the diversion and use of the waters of said 
 Arkansas river in the reclamation and improvement of said lands, 
 said diversions so made being those complained of and sought to be 
 enjoined in and by the bill of complaint herein. 
 
 Eighth. The Territory of Kansas by its legislature, recognized 
 and approved the said doctrine of appropriation, and in pursuance 
 thereof in 1859 authorized the St. Charles Town Company to divert 
 the waters of the South Platte river and Cherry creek, and the 
 Mountain Company to divert the waters of the Platte river, and the 
 El Paso Town Company to divert the waters of the tributaries of the 
 Arkansas river heading at Pike’s peak; and in 1860 authorized the 
 Capital Hydraulic Company to divert for irrigating purposes 
 all the waters of the South Platte river and Cherry creek. And 
 the State of Kansas, by its legislature has also recognized, ap- 
 proved and adopted said doctrine ; an act of said legislature 
 enacted in 1868, authorizing corporations to construct canal di- 
 verting water for irrigating purposes; an act of the legislature en- 
 acted in 1886 providing that the running waters of the State might 
 be appropriated for purposes of irrigation ; an act of said legisla- 
 ture enacted in 1891, providing that in all that portion of the State 
 west of the 99th meridian all natural waters, whether standing or 
 running and whether surface or subterranean should be devoted 
 first, to purposes of irrigation in aid of agriculture, subject to ordi- 
 nary domestic uses; and, second, toother industrial purposes, and 
 might be diverted from natural beds, basins or channels for such 
 purposes and uses; and another act enacted in 1895 providing for 
 the development of the land west of the 98th meridian by irrigation 
 and regulating the distribution of water in the same manner as in 
 Colorado. And in reliance upon the approval and adoption of said 
 doctrine of appropriation bv said State of Kansas, about five hun- 
 dred miles of large canals and ditches have been constructed in 
 Kansas, west of the 97th meridian at a cost ap-roximating one mil- 
 lion dollars and thereby the waters of said Arkansas river have been 
 appropriated and applied to about one hundred and fifty thousand 
 acres of land in the valley of said river, in the State of Kansas. 
 
 Ninth. By the act of Congress approved January 29th, 1861, ad- 
 mitting Kansas into the Union, it was specifically provided that the 
 State should never interfere with the primary disposal of the soil 
 within the same by the United States, or with any regulations Con- 
 gress might find necessary for securing the title in said soil to bona 
 fide purchasers thereof, and that all laws of the United States not 
 locally inapplicable should have the same force and effect within 
 said State as in other States of the Union. 
 
 Tenth. Following the admission into the Union of the State of 
 Kansas, said doctrine of appropriation was further recognized by 
 Congress as the law applicable to the public lands and the natural 
 streams thereof, including those in the State of Kansas, by the fol- 
 lowing acts : 
 
 An act approved July 26, 1866, by which it was provided that 
 
52 
 
 T1IFJ STATE OF KANSAS VS. 
 
 whenever, by priority of possession, rights to the use of water for 
 mining, manufacturing or other purposes, have accrued and are rec- 
 ognized according to local customs, laws and decisions, the owners 
 and possessors shall be maintained and protected in their rights; 
 
 An act approved July 9, 1870, in which it was provided that all 
 patents granted, or pre-emptions or homesteads allowed, should be 
 subject to any vested and acquired water rights or rights to ditches 
 and reservoirs used in connection with such water rights ; 
 
 An act approved March 3, 1877, known as “ the desert land 
 act,” which declared that all waters of all lakes, reservoirs and 
 other sources of supply upon the public land should remain and be 
 held free for the appropriation and use of the public for irrigation, 
 mining and manufacturing purposes, and in and by which it was 
 also provided that by the construction of canals and ditches and the 
 application of said waters to the irrigation of the public lands, the 
 title to said lands might thereby be obtained from the United States; 
 
 An act approved March 3, 1891, confirming the rights of way over 
 the public lands in the arid region for canals and reservoirs for 
 irrigation purposes; 
 
 An act approved August 18, 1894, providing for the conveyance 
 to the several States in the arid region of such public lands as they 
 might reclaim and irrigate; 
 
 An act approved June 17, 1902, authorizing and undertaking the 
 construction of canals, ditches and reservoirs in the arid region, in- 
 cluding therein the State of Colorado and the western portion of 
 Kansas, whereby the waters of the public lands might be diverted 
 and used for irrigation purposes, and appropriating for that pur- 
 pose the proceeds of all moneys received from the sale of public 
 lands in the States of Colorado and Kansas. 
 
 Under and by virtue of said act approved March 3, 1877, which 
 was made applicable to lands in Colorado by an act approved March 
 3, 1891, several thousand acres of land in the Arkansas valley in 
 the State of Colorado, were reclaimed and irrigated, and the diver- 
 sions of water for said purposes are in part the diversions complained 
 of in the said bill of complaint. 
 
 Eleventh. Said doctrine was further recognized by Congress by 
 the appropriation, on October 2nd, 1888, of $229,000 for the purpose 
 of investigating the extent to which the arid region of the United 
 States might be redeemed by irrigation and for the segregation of 
 the irrigable lands in such arid region, and for the selection of sites 
 for reservoirs and other hydraulic works necessary for the storage 
 and utilization of water for irrigation and also by a further appro- 
 priation made on March 2nd, 1889, of $450,000 for the like purpose, 
 all of which moneys were expended in investigating and selecting 
 reservoir sites and in running contour lines for the purpose of aid- 
 ing and assisting those desiring to appropriate the waters of the 
 natural streams and using the same for irrigating purposes. 
 
 Twelfth. The provisions of the constitution of the State of Colo- 
 rado set forth and complained of in the bill of complaint, were 
 
THE STATE OF COLORADO ET AL. 
 
 53 
 
 adopted in harmony with and in pursuance of the policy of the 
 United States in respect to the diversion and use of water in the irri- 
 gation of land, and the same do not conflict with or contravene any 
 act of Congress bearing upon said appropriation and use, but, on 
 the contrary, are intended as a constitutional guaranty that the right 
 to divert water for beneficial purposes as authorized and encouraged 
 by the acts of Congress referred to shall never be denied, and said 
 provisions were accepted and approved by the action of Congress in 
 admitting Colorado into the Union, and the several acts of the legis- 
 lature of Colorado, referred to in said bill of complaint, have been 
 enacted for the purpose of protecting and regulating appropriations 
 made in pursuance of the usages and customs prevailing in the arid 
 region and the rights of appropriation as recognized and confirmed 
 by the acts of Congress referred to. 
 
 Thirteenth. All grants and patents of land in the valley of the 
 Arkansas, in the State of Kansas, were made by the United States, 
 subject to the doctrine of appropriation heretofore set forth, and were 
 accepted by the several grantees thereof with the knowledge that in 
 the sale and disposition of the arid lands of the United States along 
 said Arkansas river west of the 97th meridian, it had been and 
 would be necessary to divert and use the waters of said river in the 
 improvement and cultivation thereof, and said grants and patents 
 of lands in the State of Kansas were made subject to the right of all 
 persons desiring the use of the same for agricultural purposes to ap- 
 propriate the waters of the Arkansas river, either in Kansas or Colo- 
 rado, to the full extent of said river. 
 
 Fourteenth. And this defendant says that all further diversions 
 of the waters of said Arkansas river, which by said bill of complaint 
 it is sought to restrain, will be made by the General Government 
 under and by virtue of said act of Congress, approved June 17, 1902. 
 
 This defendant, for a second separate and further answer to the 
 bill of complaint, says : 
 
 First. Many of the appropriations of the waters of the Arkansas 
 river, in the State of Colorado, complained of in said bill of com- 
 plaint, are made prior to the creation of the Territory of Colorado 
 and while said Arkansas valley was a part of the Territory of Kan- 
 sas, and defendant is, therefore, unable to state the times at which 
 said appropriations were made or the amount of water thus diverted 
 from said river. 
 
 Secoud. Following the creation of the Territory of Colorado and 
 prior to the year 1865, sixty-eight ditches and canals were con- 
 structed, and 615 cubic feet of water per second of time were thereby 
 diverted from said river and its tributaries, and have at all times 
 since been used in the irrigation of land in said Arkansas valley. 
 From and including the year 1865 to the year 1870, 127 additional 
 ditches and canals were constructed, and 458 cubic feet of water per 
 second of time were thereby diverted from said river, and at all 
 times since have been continuously used in the irrigation of lands 
 in said valley. From and including the year 1870 to the year 1880 
 
54 
 
 THE STATE OF KANSAS VS. 
 
 268 additional ditches and canals were constructed and 945 cubic 
 feet of water per second of time thereby diverted, and at all times 
 since used in the irrigation of land in said valley. From and in- 
 cluding the } 7 ear 1880 to the year 1890, 250 additional ditches and 
 canals were constructed, and 3,859 cubic feet of water per second of 
 time thereby diverted from said river, and at all times since continu- 
 ously used when obtainable in the irrigation of land in said valley. 
 All of said ditches and canals have been constructed by individuals 
 and corporations, and the water, when obtainable, has been taken 
 from said river and applied to the reclamation and irrigation of 
 about five hundred thousand acres of land in said valley which, be- 
 fore said diversion and use, was arid and incapable of producing 
 crops. 
 
 Third. In the construction of said canals and ditches and the re- 
 servoirs connected therewith, many million dollars have been ex- 
 pended, and in the lands irrigated by means of said ditches and 
 canals, and in the improvements thereon and the machinery used 
 in the cultivation thereof more than twenty-five million dollars have 
 been invested. Numerous towns and villages have grown up in 
 said valley in the State of Colorado, having as an aggregate popu- 
 lation more than one hundred thousand, and houses, stores, churches, 
 school houses, factories and public and private buildings for various 
 purposes have been constructed for occupation and use, and actually 
 used in connection with the continued settlement and cultivation of 
 the lands in said valley by the use of the waters of said Arkansas 
 river, the amount so invested aggregating many million dollars. 
 
 Fourth. In 1879 and 1881 the legislature of Colorado enacted cer- 
 tain statutes providing for the adjudication of rights to water by ap- 
 propriation for agricultural uses from the streams in said State, under 
 and by virtue of which irrigation districts were created along the 
 entire length of the Arkansas river in said State, and proceedings 
 were thereupon had in each of said districts in which the owners of 
 ditches and canals taking water from said Arkansas river and its 
 tributaries were parties, and in which the amount of water to which 
 each ditch or canal was entitled was ascertained and decreed. In 
 said proceedings the owners of 713 ditches and canals were parties, 
 and decrees were entered finding the various amounts of water that 
 had been appropriated from said river and its tributaries, and applied 
 to beneficial uses in the irrigation of said lands in said valley, and 
 the dates of said appropriations. In said adjudications many thou- 
 sand dollars were expended in costs, attorney fees and other neces- 
 sary expenses in the belief that by said decrees the right of each 
 appropriator, in the order of his appropriation, to the waters of said 
 river had been established as a perpetual property right. 
 
 Fifth. The State of Kansas and the inhabitants thereof, well knew 
 that, commencing in said State at about the 97th meridian, and 
 thence continuing westward to the Rocky mountains, the land was 
 arid and incapable of being settled upon or cultivated, except by the 
 diversion and use of the waters of the natural streams, and that 
 
THE STATE OF COLORADO ET AL. 
 
 55 
 
 diversions of the waters of the Arkansas river were being made at 
 the times and in the amounts and for the purpose hereinbefore set 
 forth, and that such diversions were made under a claim of right to 
 the continued use of the waters of said river as against all owners of 
 land in the valley of the Arkansas throughout its entire length, and 
 that the settlement of said valley in the State of Colorado and the 
 expenditure of the amounts hereinbefore stated, and the construction 
 of canals, ditches and reservoirs, and in lands, buildings and im- 
 provements, and in houses, stores, factories, and public and private 
 buildings, was made in reliance upon the right to divert the waters 
 of said river and to continue such diversion in perpetuity. 
 
 Sixth. Prior to the filing of the bill of complaint herein, neither 
 the State of Kansas, nor the owners of lands in the Arkansas valley 
 in said State, complained of said diversions, nor the right to make 
 or continue the same, nor in any way or manner claimed or alleged 
 any right upon the part of said State, or the owners of land in said 
 valley, to the flow of said river as it had been accustomed to flow 
 prior to the making of said appropriations ; but, on the contrary, the 
 said State approved the diversion of water from said river and 
 affirmed the right to make the same in the reclamation and irriga- 
 tion of the lands along said river, by an act of the legislature of said 
 State, enacted in 1886, authorizing and providing for the like diver- 
 sion and use of the waters of said river in the State of Kansas, and 
 by a further act, enacted in 1891, declaring that in that portion of 
 the State of Kansas west of the 99th meridian all natural waters, 
 whether running or standing, and whether surface or subterranean, 
 should be devoted, first, to the purposes of irrigation in aid of agri- 
 culture; and, second, to other industrial purposes, and that said 
 waters might be diverted from natural beds and channels for such 
 purposes and use, and the owners of land in said valley in said State 
 recognized and approved said appropriations, and the right to con- 
 tinue the same, bv themselves constructing about five hundred miles 
 of canals and ditches, and diverting the waters of said river for the 
 irrigation of about one hundred and fifty thousand acres of land, 
 and claimed the right so to do as against all owners of lands along 
 the course of said river in Kansas or elsewhere. 
 
 Seventh. The said State of Kansas and the owners of lands in the 
 valley of the Arkansas, in said State, have at all times acquiesced 
 in the appropriation of the waters of the Arkansas river in the State 
 of Colorado, and have waived, surrendered and relinquished any 
 and all riparian rights now claimed by them, and by their delay in 
 the filing of the complaint herein have caused the several appropri- 
 ators of water from said river in Colorado to make the expenditures 
 hereinbefore mentioned, and the people in said valley to settle upon, 
 improve and cultivate the lands, and to build towns and cities, and 
 for that purpose to expend the sums hereinbefore mentioned; and 
 they are now estopped, by their conduct and delay, from asserting 
 or maintaining any of the rights claimed in the said bill of com- 
 plaint. 
 
56 
 
 THE STATE OF KANSAS VS. 
 
 Eighth. The claim of the State of Kansas to the flow of the water 
 of said Arkansas river is not made in behalf of the owners of lands 
 riparian to said river, nor for the purpose of causing said river to 
 flow through said State for the use and benefit of the owners of said 
 riparian lands, but is made and maintained for the sole purpose of 
 securing the flow of the water of the said river in the State of Kansas, 
 that the same may be diverted into the several ditches and canals 
 above mentioned, and to such other ditches and canals as may be 
 constructed in conformity with the statutes of said State, as herein- 
 before set forth, to be used in the same manner as said waters are 
 now used in the State of Colorado. 
 
 This defendant, for a third further and separate answer to the bill 
 of complaint, says : 
 
 First. The Arkansas river leaves the foot hills of the Rocky moun- 
 tains at an elevation of about six thousand feet above sea level, and 
 thence flows eastward over an elevated plateau known as the “ Great 
 Plains” for several hundred miles, with a practically uniform de- 
 scent to the east, passing into the State of Kansas at an elevation of 
 3,350 feet and into the Territory of Oklahoma at an elevation of 
 1,000 feet. Through Colorado and Kansas it has a broad, level 
 bed of sand, seldom entirely covered with water, the ordinary 
 flow running in thin sheets in tortuous and constantly changing 
 channels in the river bed. From the mountains, for five hun- 
 dred miles eastward, the watershed of said river is naturally bar- 
 ren, treeless and without any vegetation, except the short sparse 
 grass common to the Great Plains. The annual precipitation 
 of moisture is about fourteen inches, most of which falls in local 
 and violent storms. In its uncultivated condition, the land rap- 
 idly sheds the rainfall, discharges it into the river and prevents 
 the saturation of the soil and the formation of springs by which said 
 river and the tributaries along its course might be fed. The tribu- 
 tary streams are usually dry, carrying and discharging water into 
 the river only in case of storms. The sun is seldom obscured, and 
 commencing near the State line between Colorado and Kansas, and 
 continuing eastward for at least two hundred miles, the winds are 
 dry and constant, in the summer season becoming so heated as to burn 
 and destroy the vegetation and to absorb such water as may be in 
 the bed of said river. The waters supplied to said river for about five 
 hundred miles of its course after leaving the mountains are irregular 
 in discharge and constantly varying in quantity, and are not suffi- 
 cient to cause a steady and permanent flow during any season of the 
 year. The main supply of the river is from the snows and storms 
 in the mountains. As the snow melts only during warm days, this 
 supply is also irregular and uncertain, and the volume of water in 
 the river, therefore, changes daily and even hourly. Long before ir- 
 rigation was practiced in Colorado, it was observed that as the waters 
 from the mountains flowed eastward, the volume constantly dimin- 
 ished, and this diminution was the more marked as the river passed 
 beyond the area of local storms caused by the mountains. During 
 
THE STATE OF COLORADO ET AL. 
 
 57 
 
 the summer season, except when flooded by violent showers, the 
 river, at a distance of from two hundred to four hundred miles from 
 the mountains, would, show no surface water other than occasional 
 pools in the sand, and none of the water coming into said river in 
 Colorado would flow to or across the lands in the central or humid 
 portion of Kansas. The ordinary flow of said river in Kansas has 
 been still further temporarily diminished by the destruction of timber 
 on the water shed of said river in the mountains and by the exten- 
 sion westward of the cultivated area of lands in Kansas and by the 
 sinking in western Kansas of upwards of one thousand wells con- 
 tiguous to said river, and the pumping and use of the waters thus 
 obtained upon the adjoining land. 
 
 Second. All of the canals, ditches and reservoirs in Colorado 
 complained of in said bill of complaint have their headgates within 
 one hundred and fifty miles of the mountains, and the waters diverted 
 into said canals and ditches are the waters which, if not so diverted, 
 would be lost by seepage and evaporation long before reaching the 
 lands in Kansas claimed to be injured by such diversion. 
 
 Third. The waters of the Arkansas river diverted in Colorado are 
 those which fall within the water shed of said river in said State, 
 and they are diverted and used only upon such lands within said 
 water shed as need the same for domestic and irrigation purposes, 
 and all the said lands upon which said waters are used are lands 
 entitled to the same as the riparian lands of said river. 
 
 This defendant, now having fully answered all the allegations in 
 the plaintiff’s bill of complaint, or so much thereof as the defendant 
 is advised should be answered, asks to be hence dismissed with cost 
 and charges in this behalf sustained. 
 
 CHAS. C. POST, 
 
 Attorney General of the State of Colorado 
 
 and Solicitor for Defendant. 
 
 CHARLES S. THOMAS, 
 
 LUTHER M. GODDARD, 
 
 PLATT ROGERS, 
 
 HENRY A. DUBBS, 
 
 Of Counsel. 
 
 [Endorsed :] Supreme Court U. S. October term, 1902. Term No. 
 8, orig’l. The State of Kansas, complainant vs. The State of Colo- 
 rado Answer of defendant to bill of complaint Filed Nov. 3, 1902 
 
 And afterwards, to wit, on the 23d day of April, A. D. 1903, an 
 appearance for defendant was filed in the words & figures follow- 
 ing, viz : 
 
58 
 
 THE STATE OF KANSAS VS. 
 
 Order for Appearance. 
 
 Supreme Court of the United States, October Term, 1902. 
 
 The State of Kansas, Complainant, ) 
 
 vs. I No. 8, Orig’l. 
 
 The State of Colorado. ) 
 
 The clerk will enter my appearance as counsel for the defendant. 
 
 NATHAN C. MILLER, 
 
 (P. 0. Address.) Denver, Colorado. 
 
 jHH^Note. — M ust be signed by a member of the bar of the Su- 
 preme Court United States. Individual and not firm names must 
 be signed. 
 
 [Endorsed :] Supreme Court U. S. October term, 1902. Term 
 No. 8, original. Appearance for deft. Filed April 23, 1903. 
 
 And afterwards, to wit, on the first day of May, A. D. 1903, an 
 appearance for complainant was filed in the words and figures fol- 
 lowing, viz : 
 
 Order for Appearance. 
 
 Supreme Court of the United States, October Term, 1902. 
 
 The State of Kansas, Complainant, ) 
 
 vs. >No. 8, Orig’l. 
 
 The State of Colorado. j 
 
 The clerk will enter my appearance as counsel for the complain- 
 ant. 
 
 (Name.) C. C. COLEMAN, 
 
 (P. O. Address.) Topeka, Kans. 
 
 g@f*NoTE. — Must be signed by a member of the bar of the Su- 
 preme Court United States. Individual and not firm names must 
 be signed. 
 
 [Endorsed:] Supreme Court U. S. October term, 1902. Term 
 No. 8, orig’l. Appearance for comp’t. Filed May 1, 1903. 
 
 And afterwards, to wit, on the 28th day of May, A. D. 1903, an 
 appearance for the complainant was filed in the words and figures 
 following, viz: 
 
THE STATE OF COLORADO KT AL. 
 
 59 
 
 Order for Appearance. 
 
 Supreme Court of the United States, October Term, 1902. 
 
 The State of Kansas, Compl’t, 1 
 
 vs. >No. 8, Orig’l. 
 
 The State of Colorado. j 
 
 The clerk will enter my appearance as counsel for the complain- 
 ant. 
 
 (Name.) N. H. LOOMIS, 
 
 (P. 0. Address.) Topeka, Ks. 
 
 j^IpNote. — M ust be signed by a member of the bar of the Su- 
 preme Court United States. Individual and not firm names must 
 be signed. 
 
 [Endorsed :] Supreme Court U. S. October term, 1902. Term 
 No. 8, orig’l. Appearance for comp’t. Filed May 28, 1903. 
 
 And afterwards, to wit, on the first day of June, A. D. 1903, a 
 motion was filed in the words and figures following, viz : 
 
 In the Supreme Court of the United States. 
 
 The State of Kansas, Complainant, ) 
 
 vs. >No. 8, Original. 
 
 The State of Colorado, Defendant, j 
 
 Petition for Leave to Amend Bill of Complaint. 
 
 Now on this first day of June, 1903, in open court, comes the said 
 complainant by C. C. Coleman, its attorney general and N. H. 
 Loomis, of counsel, and respectfully moves and asks the court tu 
 grant leave to said complainant within a time to be fixed by the 
 court to file a new and amended bill of complaint herein, and to 
 make as additional defendants therein such persons and corporations 
 as it may deem necessary, and that the court order subpoenas to issue 
 to such new defendants commanding them to appear and answer 
 herein to said bill of complaint and to fix the time for all pleadings 
 and appearances herein as to all parties to said amended bill of com- 
 plaint. 
 
 Wherefor- said complainant will ever pray &c. 
 
 THE STATE OF KANSAS, 
 
 Complainant, 
 
 By C. C. COLEMAN, 
 
 Attorney General. 
 
 N. H. LOOMIS, 
 
 Of Counsel. 
 
60 
 
 THE STATE OF KANSAS VS. 
 
 Endorsed : Supreme Court, U. S., October term, 1902. Term No. 
 8, orig’l. The State of Kansas, complainant, vs. The State of 
 Colorado. Motion for leave to amend bill of complaint. Filed June 
 1", 1903. 
 
 And on the same day, to wit, on the first day of June A. D. 1903, 
 the following order appears of record, viz : 
 
 In the Supreme Court of the United Stales, October Term, 1902. 
 
 The State of Kansas, Complainant, 1 
 
 vs. >No. 8, Original. 
 
 The State of Colorado. ) 
 
 On motion of Mr. C. C. Coleman of counsel for the complainant, 
 counsel for the defendant consenting thereto, 
 
 It is now here ordered by the court that leave be, and the same is 
 hereby, granted to said complainant to file an amended bill of com- 
 plaint herein on or before the 15th day of August next ensuing 
 making additional parties defendant, and that subpoenas thereupon 
 issue directed to said additional defendants commanding each of 
 them to plead to said amended bill within sixty days after the serv- 
 ice upon them respectively of said subpoenas, and the said State of 
 Colorado is directed to plead to said amended bill on or before the 
 12th day of October, 1903. 
 
 June 1st, 1903. 
 
 And on the same day, to wit, on the first day of June, A. D. 1903, 
 a stipulation was filed in the words and figures following, viz : 
 
 In the Supreme Court of the United States of America. 
 
 The State of Kansas, Complainant, } 
 
 vs. > Original. 
 
 The State of Colorado, Defendant. I 
 
 It is hereby stipulated by and between the State of Kansas, by 
 C. C. Coleman, its attorney general and the State of Colorado, bv 
 N. C. Miller, its attorney general, that an order may be entered in the 
 above entitled proceedings as follows: 
 
 In the Supreme Court of the United States of America. 
 
 The State of Kansas, Complainant, 1 
 
 vs. > Original. 
 
 The State of Colorado, Defendant, j 
 
 On this first day of June, A. D. 1903, comes the State of Kansas 
 by C. C. Coleman its attorney general, and the State of Colorado, by 
 
THE STATE OF COtoRAHO ET AL* 
 
 61 
 
 N. C. Miller its attorney general, and thereupon the Said State of 
 Kansas presents its petition praying leave to amend its bill of com- 
 plaint and to make divers persons and corporations parties defend- 
 ant by said amended bill and the court having considered the said 
 petition it is 
 
 Ordered, That on or before the 15th day of August next ensuing, 
 the said State of Kansas file its amended bill of complaint and mak- 
 ing as additional defendants such persons and corporations as it may 
 deem necessary and that subpoenas thereupon issue directed to said 
 additional defendants commanding each of them to plead to said 
 bill within 60 days after the service upon them respectively of said 
 subpoenas and the said State of Colorado is directed to plead to said 
 amended bill on or before the first day of the October term, A. D. 
 1903, of this court. 
 
 And it is also ordered that if the State of Colorado shall answer 
 said amended bill, the State of Kansas shall within 30 days after 
 the filing of said answer plead thereto; and that to the several 
 answers which may be filed bv the said additional defendants the 
 said State of Kansas shall plead within 60 days thereafter. 
 
 THE STATE OF KANSAS, 
 
 By C. C. COLEMAN, 
 
 Attorney General. 
 
 THE STATE OF COLORADO, 
 By N. C. MILLER, 
 
 Attorney General. 
 
 Endorsed : Supreme Court of United States. State of Kansas vs. 
 State of Colorado. Stipulation and order. 
 
 Endorsed : Supreme Court, U. S., October term, 1902. Term No. 
 8, original. The State of Kansas, complainant, vs. The State of 
 Colorado. Stipulation as to manner of pleading. Filed June 1, 
 1903. 
 
 And afterwards, to wit, on the 17th day of August, A. D. 1903, an 
 amended bill was filed in the words and figures following, viz : 
 
62 
 
 THE STATE OF KANSAS VS* 
 
 In the Supreme Court of the United States. 
 
 The State of Kansas, Complainant, ) 
 
 vs. >No. 7, Orig’l. 
 
 The State of Colorado et al., Defendants, j 
 
 Amended Bill in Equity. 
 
 C. C. Coleman, attorney general of the State of Kansas. 
 
 N. H. Loomis, F. Dumont Smith, S. S. Ashbaugh, of counsel. 
 
 In the Supreme Court of the United States. 
 
 To the honorable! the Chief Justice and the associate justices of the 
 
 Supreme Court of the United States : 
 
 Your orator, The State of Kansas, brings this its amended bill of 
 complaint against The State of Colorado, and The Bessemer Ditch 
 Company, a corporation; The Oxford Farmers’ Ditch Company, a 
 corporation ; The Otero Canal Company, a corporation ; The Lake 
 ("anal Company, a corporation ; The Riverside Ditch Company, a 
 corporation ; The Catlin Consolidated Canal Company, a corpora- 
 tion ; The Graham Ditch Company, a corporation ; The Lamar Land 
 and Canal Company, a corporation ; The Amity Canal and Reser- 
 voir Company, a corporation ; The Rocky Ford Canal, Reservoir, 
 Land, Loan and Trust Company, a corporation ; The Fort Lyon 
 Canal Company, a corporation ; The Colorado Land and Canal Com- 
 pany, a corporation ; The Great Plains Water Company, a corpora- 
 tion ; The Arkansas Valley Sugar-beet and Irrigated Land Com- 
 pany, a corporation ; The Colorado Fuel and Iron Company, a cor- 
 poration ; and The Bent-Otero Improvement Company, a corpora- 
 tion, and avers : 
 
 1. The State of Kansas is one of the United States of America, 
 admitted into the Union January 29, 1861. The State of Colorado 
 is one of the United States of America, admitted into the Union 
 August 1, 1876. Each of the other parties defendant herein is a 
 corporation organized, chartered and authorized to transact business 
 under and by virtue of the laws of the State of Colorado, and owns, 
 maintains and operates a ditch or ditches, canal or canals in the 
 State of Colorado by and by means of which the waters of the 
 Arkansas river and its tributaries are diverted and used as herein- 
 after set forth. 
 
 2. The original bill in these proceedings was exhibited and these 
 proceedings instituted by direction of the Hon. W. E. Stanley, the 
 duly elected, qualified and acting governor of the State of Kansas, 
 and this amended bill is exhibited and these further proceedings 
 prosecuted by direction of Hon. Willis J. Bailey, the present and 
 duly elected, qualified and acting governor of said State of Kansas. 
 
THE STATIC OF COLORADO ET AL. 
 
 63 
 
 3. Your orator further says: The Arkansas river rises in the 
 Rocky mountains, in the said State of Colorado, and flows from its 
 source through the counties of Lake, ChalFee, Fremont, Pueblo, 
 Otero, Bent, and Prowers, in said State, and thence from the last- 
 named county across the line into the State of Kansas. 
 
 All tributaries entering the Arkansas river in the State of Colo- 
 rado have their rise and entire flow in that State. The length of 
 the river in the said State is, approximate^, two hundred and 
 eighty miles, and the drainage area of said river and its tributaries 
 in the said State is, approximately, twenty-two thousand square 
 miles. All of the drainage area of said river is east of the summit 
 of the Rocky mountains, and a large portion of such area is in the 
 mountains, where the fall of snow in the winter season is very great. 
 Deep snows accumulate during the winter season in said mountains 
 and the valleys thereof, which snow melting during the spring and 
 summer, the waters therefrom flow into the river directly and in 
 great volume from the early spring until the month of August in 
 each year. The course of said river, after leaving the mountains of 
 Colorado, proceeds in an easterly direction for, approximately, two 
 hundred miles to the west line of the State of Kansas ; and the 
 river in its course, after leaving the mountains, is a navigable stream 
 under the laws and departmental rules and regulations of the 
 United States. 
 
 That the lands bordering upon the Arkansas river and its trib- 
 utaries in the State of Colorado are of such a character that they 
 are not saturated to an appreciable extent by the waters flowing in 
 said river or its tributaries, and that said lands are arid and barren 
 up to the very margin of said streams. 
 
 The volume of water in the bed of said river flowing from the 
 State of Colorado into the State of Kansas formerly was, and should 
 now be, and would be, very large but for the wrongful diversion of 
 the same as hereinafter set forth, said volume at its normal height 
 in said river at the mean average flow, at the State line, for about 
 ten months in the year, being upwards of two thousand cubic feet 
 per second. For a period of about two months in the autumn of 
 each year the normal flow of water in the bed of said river shrinks 
 and is much less than the amount above stated. The tributaries of 
 said river in the State of Kansas are comparatively few in number, 
 and do not and could not furnish water to cause a continuous 
 stream to flow in the bed of the said river, except near the south 
 line of the State, where the river flows into the Territory of Okla- 
 homa. 
 
 The said river flowing from the State of Colorado enters the State 
 of Kansas and proceeds through the counties of Hamilton, Kearny, 
 Finney, Gray, Ford, Edwards, Pawnee, Barton, Rice, Sedgwick, 
 Sumner, and Cowley, in the State of Kansas, and therefrom through 
 the Territory of Oklahoma, the Indian Territory, and the State of 
 Arkansas, and empties into the Mississippi river at the eastern 
 boundary of that State. From Fort Gibson, in the Indian Terri- 
 
64 
 
 THE STATIC OE KANSAS VS. 
 
 tory, to the mouth of said river it is a large, navigable stream, and 
 is used for the purposes of trade and commerce by vessels plying 
 thereon. 
 
 The length of the river in the State of Kansas is about three hun- 
 dred and ten miles. Its course is through a broad valley, and along 
 its entire length within the State of Kansas are alluvial deposits of 
 great depth, amounting, in the aggregate, to about two million five 
 hundred thousand acres. The greater part of the said acreage and 
 the greater part of the course of the river lies in the western half of 
 the State. The elevation of the bed of the river through the State 
 of Kansas is from three thousand three hundred and fifty feet above 
 the level of the sea, at the Colorado line, to one thousand feet above 
 said level at the point where it enters Oklahoma. The rainfall in 
 the drainage area of said river in the western half of the State of 
 Kansas is very light, and, by reason of the porous nature of the soil 
 throughout said drainage area, the greater portion of the water so 
 falling sinks into the earth, and but a small portion thereof finds its 
 way to said river, except in the event of severe and unusual storms. 
 The ordinary and usual rainfall in the major portion of the valley 
 of said river in the State of Kansas is utterly inadequate to the 
 growing and maturing of cultivated crops of any kind, because, first, 
 the precipitation is very scanty ; and, second , it does not fall during 
 the growing season of the year. 
 
 The said river in its entire course through the State of Kansas 
 has a natural fall of about seven and three-tenths feet per mile. 
 The valley of the river in the State of Kansas is composed of sand 
 covered with alluvial soil, and the river and the surface soil of the 
 bottom lands in the State of Kansas are all underlaid with sand and 
 gravel, through which the waters of said river have flowed from 
 time immemorial, extending in width under the entire valley for 
 its whole length through the State of Kansas. The natural course 
 and flow of said river throughout its entire length in the State of 
 Kansas is in and beneath the bed thereof and beneath the surface 
 of the bottom lands of the entire valley of said river. That portion 
 of the river which flows beneath the surface through the sand and 
 gravel is called the “ underflow.” The “ underflow” is confined to 
 the valley of the river in the State of Kansas, and is coextensive 
 with the valley in said State, and varies in volume with the amount 
 of water in discharge in the river. There is no underflow to said 
 river in the State of Colorado except in and under the bed of said 
 river. The water which flows in the river from the State of Colo- 
 rado into the State of Kansas furnishes the principal and almost 
 the entire supply of water for the underflow in the valley 
 of said river, and at its normal height the said underflow is of 
 great and lasting benefit to the said bottom lands, both as to those 
 which abut upon said river and as to those which do not; and 
 is of great benefit to the people owning and occupying such 
 lands, for that it furnishes moisture sufficient to grow ordinary 
 farming crops in the absence of rainfall and furnishes water, at a 
 
THE STATE OF COLORADO FT AL. 
 
 65 
 
 moderate depth below the surface, for domestic use and for the 
 watering of animals. The flow of water in the river-bed is also of 
 great value to the people in the vicinity by reason of the fact that 
 the evaporation from said river tends to cool and moisten the sur- 
 rounding atmosphere, thereby greatly promoting the growth of all 
 vegetation, enhancing the value of lands in that vicinity, and con- 
 ducing directly and materially to the public health and making 
 the locality habitable. Owing to the dryness of the climate, the 
 cloudlessness of the sky, the high elevation, and the prevailing 
 winds, evaporation is rapid and great, being about sixty inches per 
 annum at the east end of the river valley in Kansas, and ninety 
 inches at the west line of the State. 
 
 Outside of said valley in the western half of the State of Kansas 
 are several million acres of arid upland and plateau upon which 
 grows a sparse but valuable grass upon which cattle may feed, and 
 upon which they have, in times past, in vast numbers been fed and 
 fattened, but the cattle so fed must have watering-places, and such 
 watering-places must be in the river valley. And the availability 
 and use of the said arid lands and the prosperity of the business of 
 cattle-feeding thereon depend entirely upon the water, its con- 
 venience, depth, and supply, and if the surface flow of water in the 
 bed of said river be wholly cut off from the State of Kansas, then 
 the underflow will gradually diminish and run out, and the valley 
 of the Arkansas river will become as arid and uninhabitable as are 
 the upland and plateau along its course, since without said under- 
 flow the valley land will be unfit for cultivation and the arid lands 
 unavailable for grazing. 
 
 The bottom lands in the valley of the Arkansas river in the State 
 of Kansas are practically level and rise from three to fifteen feet 
 above the water bed of the river, and are such as are ordinarily 
 termed and will be herein referred to as “bottom lands.” Nearly 
 all of said bottom lands, including those which are adjacent to the 
 bed of said river, are fertile and productive, valuable for farming 
 purposes, and well adapted to the growing of corn, wheat, alfalfa, 
 rye, domestic and wild grasses, orchards, fruits, vegetables, and all 
 like crops, grains and grasses usually groXvn in that latitude of the 
 United States. In addition thereto, all of said lands are valuable 
 for grazing purposes and well adapted to the support of vast num- 
 bers of cattle, horses, sheep, and hogs. 
 
 Nearly all of the bottom lands of the said Arkansas valley, includ- 
 ing those upon the banks of said river, are now owned, held and oc- 
 cupied by persons engaged in agricultural pursuits, and more than 
 three-fourths of the bottom lands of said valley in the State of Kan- 
 sas were and are occupied by persons owning or leasing said lands 
 and residing thereon with their families. More than two-fifths of 
 said bottom lands so situate in said valley in the State of Kansas, 
 including more than two-fifths of those upon the banks of said river, 
 are in a state of actual cultivation, and have been for many years 
 past; and said lands now have, outside of the cities, an agricultural 
 
66 
 
 THE STATE OF KANSAS VS* 
 
 population of more than 50,000 persons. The inhabitants of said 
 valley are now, and have been since the first settlement thereof, as 
 hereinafter set forth, engaged in the raising of corn, wheat, rye, 
 alfalfa, hay, fruits, vegetables, cattle, horses, sheep and hogs and other 
 products common to the latitude and climate. 
 
 Situated upon the banks of said river in the State of Kansas are 
 numerous cities, towns, and villages, and among the cities so situ- 
 ated are Syracuse, Garden City, Cimarron, Dodge City, Kinsley, 
 Larned, Great Bend, Sterling, Hutchinson, Wichita, and Arkansas 
 City; all of which cities, except the one last named, are county- 
 seats, and have an aggregate population of over 60,000 persons, 
 whose rights are to a greater or less extent impaired by the wrongs 
 herein complained of. 
 
 The actual value of the bottom lands in the valley of the Arkan- 
 sas river, in the State of Kansas, is from five to one hundred dollars 
 per acre, and the average value of all of the said lands is not less 
 than twenty-five dollars per acre, provided said lands are permitted 
 to receive the benefits arising from the natural and normal flow of 
 water in said river, which benefits they would receive but for the 
 wrongful acts done in and by the defendants herein named. By 
 reason of the said wrongs, herein complained of, the value of said 
 lands has shrunk many millions of dollars, which has been a direct 
 loss to the citizens of the State of Kansas, and to the taxable wealth, 
 and to the revenues of the State of Kansas and to the school system 
 of the State as hereinafter set forth. 
 
 4. Your orator further says: All of the said bottom lands were 
 originally a part of the public domain of the United States, and by 
 the act admitting the State of Kansas into the Union the State be- 
 came entitled, for school purposes, to sections sixteen and thirty-six 
 of each governmental township, some of which sections are situated 
 within the said valley, and a number of which adjoin the bed of 
 said stream. 
 
 Under the act of Congress of March 3, 1863, entitled “An 
 act for a grant of lands to the State of Kansas in alternate 
 sections to aid in the construction of certain railroads and tele- 
 graphs in said State,” there was granted to the State practically nil 
 of the odd-numbered sections of land in said valley lying north of 
 a line four miles south of the north line of township twenty-six in 
 said State. Said line is about four miles north of the city of Wichita, 
 and extends to the west line of said State; and the grant included 
 all the territory of the Arkansas valley west of Wichita, being four- 
 fifths of said valley. All the requirements and provisions of said 
 act of Congress were complied with prior to the year 1874 by the 
 State of Kansas and by the Atchison, Topeka and Santa Fe Rail- 
 road Company, as to- such of said lands as were located east of the 
 west line of Ford county in said State as now located. Prior to said 
 year 1874, the fee-simple title to said lands and all rights thereunto 
 appertaining had been certified and conveyed by the United States 
 to the State of Kansas, and by it to the said railroad company. 
 
THE STATE OF COLORADO ET AL. 
 
 67 
 
 Between the .years 1874 and 1883 the remaining sections of said 
 lands, to wit, those lying west of said west line of Ford county, were 
 so certified, transferred and conveyed to said State and by it con- 
 veyed. The amount of the lands so conveyed, which were situate 
 in said valley and were a part of the bottom lands thereof, 
 was not less than nine hundred thousand acres, a large por- 
 tion of which abut upon and extend to the bed of said river. 
 The other lands in said valley, being the even-numbered sections, 
 were and have been at all times subject to entry as a part of the 
 public domain of the United States and subject to be taken and have 
 been taken and occupied by settlers thereon, under the land laws of 
 the United States. 
 
 Prior to the admission of the State of Kansas into the Union, in 
 1861, many persons were settlers and residents of said valley, occu- 
 pying and holding lands therein, more particularly along the line 
 of the Santa Fe trail, which followed the river from a point near 
 the present site of the city of Hutchinson to the west line of the 
 State. During the years 1869, 1870, and 1871, the entire Arkansas 
 valley, from the south line of the State of Kansas to the city of 
 Great Bend, was taken and occupied by actual settlers, who subse- 
 quently acquired title to their lands under the laws of the United 
 States of America and by purchase from the State and the said rail- 
 road company. The other lands situated in said valley, from Great 
 Bend westward to the west line of the State of Kansas, were taken 
 up during the time between the years 1872 and 1884, and have been 
 occupied ever since by actual settlers and by purchasers from the 
 State and from the said railroad company. All of the lands of said 
 valley have been thus occupied, held and owned by said original 
 settlers and their grantees ever since the above dates of settlement, 
 and these settlers and their successors in interest have continuously 
 held and owned, and do now hold and own, all of the riparian and 
 other rights of every kind and nature in any way appertaining or 
 belonging to said lands. 
 
 And your orator further shows, that all the territory of the State 
 of Kansas became part of the territory of the United States by the 
 treaty with the French Republic of the 30th of April, 1803, ceding 
 Louisiana. That while said territory now within the State of Kan- 
 sas so belonged to the United States, the Government and proper de- 
 partment thereof meandered the bed of the said river, and estab- 
 lished the meander or boundary lines thereof, and said river from 
 its mouth at the Mississippi river to the Colorado line became, was, 
 is and has always been treated as a navigable river, and the bed of 
 said river within said State of Kansas has never been sold or con- 
 veyed by the United States. That when Kansas was admitted into 
 the Union as one of the United States, the title and control of the 
 bed of said river within said State of Kansas passed to the State of 
 Kansas, and that the State of Kansas, ever since the 29th day of Jan- 
 uary, 1861, has been, and now is, the absolute owner thereof, and the 
 absolute and unrestricted right thereto ever since said date has been 
 
68 
 
 THE STATE OF KANSAS VS. 
 
 and now is vested in the State of Kansas, in trust forever for the 
 benefit of the whole people thereof. 
 
 5. Your orator further says: By an act of the Congress of the 
 United States of March 2, 1889, it was enacted that the Secretary of 
 the Interior be authorized to sell and convey to the State of Kansas 
 lots numbered three, five, six, and seven, of section three, township 
 twenty-seven south, of range twenty-four west, situated in Ford 
 county, Kansas, on condition that the State should within twelve 
 months thereafter payor cause to be paid the sum of one dollar and 
 twenty-five cents per acre for said lands, and should within three 
 years establish and provide for the maintenance thereon of a home 
 for the care and .maintenance of officers, soldiers, sailors and ma- 
 rines who had served in the army and navy, and their dependent 
 parents, widows, or orphans. Thereafter, and on the 13th day of 
 June, 1889, the State of Kansas made payment to the United 
 States of one dollar and twenty-five cents per acre for said lands, 
 and on said date they were by the Secretary of the Interior, in 
 pursuance of said act of Congress, transferred to the State of Kan- 
 sas, and it has ever since used said lands for the maintenance 
 of a soldiers’ home thereon, in accordance with the provision of 
 the aforesaid act of Congress. The lands so used consist of one 
 hundred and twenty-six and fifty-six one-hundredths acres of 
 the bottom lands of the Arkansas valley, adjoining and abut- 
 ting upon the bed of said river. Said land is fertile and of a 
 character well adapted to the raising of grain, fruits and vegetables 
 when supplied with moisture. The natural rainfall in the vicinity 
 is slight and insufficient for the maturing of crops, fruits, and vege- 
 tables, and the value of said lands for farming purposes depends en- 
 tirely upon the flow of water in the bed of the river and upon the 
 underflow beneath the land. The State of Kansas is now, and has, 
 during its entire ownership of said tract, used a large portion of the 
 same for the raising of grains, fruits, vegetables and grasses thereon 
 for the needs of its said institution, and, as the owner of said land, 
 the State of Kansas is entitled to the full, free and natural flow of 
 all waters which naturally would flow in said river and beneath 
 said land ; and the rights of the State thereto are prior and superior 
 to the rights or claims of any of said defendants or any other per- 
 sons whatsoever. 
 
 6. Your orator further says: The State of Kansas is the owner of 
 the fee-simple title to the northeast quarter (J), the east half of the 
 northwest quarter (J), the southwest quarter (J), and the southeast 
 quarter (J) of section nineteen (19), and the south half of the south- 
 east quarter (J) of section eighteen (18), all in township twenty-three 
 (23) south, range five (5) west of the sixth principal meridan, situated 
 in Reno county, Kansas, and has owned said lands since the year 
 1885. The State of Kansas has erected upon said lands a large in- 
 stitution built and used for the purpose of an industrial reformakuy, 
 where are confined and detained large numbers of the criminals of 
 the State. The greater portion of the said {lands so owned by the 
 
THE STATE OF COLORADO ET AL. 
 
 69 
 
 State is suitable for and is used for farming purposes in connection 
 with said institution, and for the growing of grain, grasses, fruits and 
 vegetables for the needs of said instition. Said lands consist of 
 about six hundred and forty (640) acres, and are situated within the 
 valley of the Arkansas river, and are bottom lands furnished with 
 moisture, sufficient for the growing of crops thereon, solely from the 
 underflow and saturating waters of said river, and the rainfall upon 
 said lands in ordinary seasons is naturally inadequate. 
 
 The State of Kansas acquired the title to said reformatory lands from 
 divers persons and individuals who had previously owned and occu- 
 pied them. The title to ail that portion of said lands situate in section 
 nineteen passed from the United States to the State of Kansas under 
 and in pursuance of the act of Congress approved March 3, 1863, 
 granting certain lands to the State of Kansas to aid in the construc- 
 tion of certain railroads, and said lands were located and were cer- 
 tified to the State of Kansas April 9, 1873 ; and on the 19th day of 
 May, 1873, the said section of land, with other lands, were patented by 
 the State of Kansas to the Atchison, Topeka & Santa Fe Railroad 
 Company. In and by said act of Congress and the certification and 
 location of said lands thereunder and the patent aforesaid, the full 
 fee-simple title to said lands and all rights appertaining thereto were 
 transferred from the United States of America to said railroad com- 
 pany, and said title and rights have passed by successive convey- 
 ances through various parties to the State of Kansas, and were ac- 
 quired by it on August 14, 1885, as aforesaid, and have been ever 
 since held by it. The title to that portion of said reformatory lands 
 situate in section eighteen passed from the United States to one 
 George S. Laverty, by a patent dated September 25, 1878, at which 
 time said Laverty acquired the fee simple title to said premises and 
 all rights appertaining thereto, all of which relate back to and date 
 from the time of his entry upon said lands, more than five years 
 prior thereto. Said title and rights in and to said lands have passed 
 by successive conveyances until they are now vested in the State of 
 Kansas as aforesaid ; and the State is now, and has been since Au- 
 gust 15, 1885, the owner in fee simple of said tract of land and all 
 rights thereunto appertaining. By reason of the foregoing, the 
 State of Kansas is entitled to the full natural flow of the water of 
 the Arkansas river in its accustomed place and at its normal height 
 and in its natural volume underneath all of the said reformatory 
 lands. The rights of the State thereto are prior and superior to any 
 right or claim of any of said defendants or any other persons what- 
 soever. 
 
 7. Your orator further says; By the constitution of the State of 
 Colorado, adopted at or about the time of the admission of the State 
 into the Union, and not since abrogated by the people of said State, 
 it is provided in article fifteen thereof as follows : 
 
 “Sec. 5. The water of every natural stream not heretofore appro- 
 priated within the State of Colorado is hereby declared to be the 
 property of the public, and the same is dedicated to the uses of the 
 
70 
 
 THE STATE OK KANSAS VS. 
 
 people of the State subject to appropriation as hereinafter pro- 
 vided. 
 
 “Sec. 6. The right to divert unappropriated waters of any natural 
 stream for beneficial uses shall never be denied. Priority of appro- 
 priation shall give the better right as between those using the water 
 for the same purposes; but when the waters of any natural stream 
 are not sufficient for the service of all, those using the water for do- 
 mestic purposes shall have the preference over those claiming for 
 any other purpose, and those using the water for agricultural pur- 
 poses shall have the preference over those using the same for manu- 
 facturing purposes.” 
 
 The legislature of the State of Colorado has from time to time 
 passed divers and numerous laws purporting and pretending to au- 
 thorize the diversion of water from said Arkansas river and its trib- 
 utaries, in said State, for uses and purposes other than domestic; 
 more particularly for the purpose of irrigating arid, non-riparian, 
 non-saturated and waste lands for agricultural purposes in said 
 State. In and by its said laws and through its officers and courts 
 the said State has attempted to grant to its codefendants and to 
 divers other persons, firms and corporations the right and authority 
 to divert the waters of the Arkansas river and its tributaries, in Col- 
 orado, from their natural channels, and to cause said waters to flow 
 into and through canals and ditches constructed for the purpose, 
 extending great distances awa}^ from the natural channels of said 
 streams, and to store said waters and to empty the same upon high 
 arid lands, not riparian to said streams and not saturated thereby, 
 as a result of the exercise of such pretended right, all of said waters 
 are forever lost to such streams and are thus and thereby prevented 
 from flowing into or through the State of Kansas. 
 
 Under and in pursuance of said constitutional provisions and the 
 statutes of the State of Colorado, upwards of one thousand persons, 
 firms and corporations, including those joined as defendants herein, 
 claim to have acquired rights to divert water from said river and 
 its tributaries, in the State of Colorado, for the purpose of irrigating 
 such arid non-riparian and non-saturated lands in said State ; and 
 each of said persons, firms and corporations owns one or more 
 ditches or canals to carry said waters from the natural courses of 
 said streams. Many of said canals and ditches are of great capacity, 
 and are many miles in length. Many of said persons, firms and cor- 
 porations have constructed great reservoirs within which to store, 
 and in which are stored for use, vast quantities of the water of said 
 streams before using it for the purpose of irrigation, as herein set 
 forth. 
 
 That the said owners are so numerous that your orator has been 
 unable to ascertain and set forth all of the same or make them de- 
 fendants herein, except such as are herein set out and made defend- 
 ants hereto. 
 
 That in the aggregate the appropriations so as aforesaid attempted 
 to be made and licensed, from the Arkansas river, amouut to 4200 
 
THE STATE OF COLORADO ET AL. 
 
 71 
 
 cubic feet per second, and from the affluents and tributaries thereof 
 to 4300 cubic feet per second. 
 
 That the average flow of the Arkansas river in the State of Col- 
 orado does not at any point on said river exceed 700 cubic feet per 
 second, and the average flow of the affluents and tributaries thereof 
 does not in the aggregate exceed 700 cubic feet per second. 
 
 That as a result thereof the total average flow of said Arkansas 
 river, together with the average flow of all the affluents and tribu- 
 taries thereto, is taken out, used and absorbed as hereinbefore and 
 hereinafter alleged. And no portion of the ordinary flow of the said 
 Arkansas river is permitted to pass into the State of Kansas. 
 
 Said ditch owners, together with the State of Colorado, as here- 
 after set forth, are now diverting and at all times continue to divert 
 from their natural courses the waters flowing in the bed of the 
 Arkansas river and its tributaries, in said State, and are now carry- 
 ing said waters to great distances from their natural courses and 
 discharging them for agricultural purposes upon arid, non-riparian 
 and non-saturated lands, where such waters are wholly lost to such 
 streams and to the State of Kansas and its inhabitants. That such 
 diversion is carried to such an extent that no water flows in the bed 
 of said river from the State of Colorado into the State of Kansas 
 during the annual growing season, and the underflow of said river 
 in Kansas is diminishing and continuing to diminish, and if the 
 said diversion continues to increase, the bottom lands of said valley 
 will be injured to an enormous extent, and a large portion thereof 
 will be utterly ruined and will become deserted and be a part of an 
 arid desert. 
 
 The State of Colorado, through its laws, legislatures, officers, and 
 agents, pretends to authorize and license the owners of said canals 
 and ditches to take, carry away and so use the waters of said streams ; 
 and the State of Colorado, in addition to granting the right to take 
 and use the water, also claims the right to regulate and control the 
 distribution of such water by canal and ditch owners to the owners 
 of lands so irrigated, and grants permission and license to land- 
 owners of said State to take and receive the waters flowing in said 
 canals and ditches and use the same for irrigation purposes, and for 
 the sale thereof as merchandise. In addition to the foregoing, other 
 canals and ditches for the diversion of waters from said river and 
 its tributaries are contemplated for the purpose of irrigating arid 
 non-riparian lands; and the extension of branches and laterals to 
 those canals and ditches now built are contemplated and intended 
 by the people of the State of Colorado; as is also the obtaining of 
 additional privileges not heretofore granted for the diversion of 
 water from said river, and its tributaries, and the irrigation of lands 
 not now irrigated. 
 
 The State of Colorado and the said defendant corporations claim 
 and openly assert their right and power to do as they please with 
 all the water of the Arkansas river within the borders of Colorado, 
 
72 
 
 THE STATE OF KANSAS VS. 
 
 regardless of an}’ rights which the State of Kansas or its citizens 
 may have therein. 
 
 The State of Colorado has, since the year 1890, at and near the 
 city of Canon City, in said State, constructed a great canal for the 
 purpose of diverting water of the Arkansas river from its channel 
 at said point and using the water for irrigation purposes upon arid 
 non-riparian and non-saturated lands, so that the water will not re- 
 turn to or again flow in said river ; which said canal is now owned, 
 controlled and managed by the State of Colorado. The said State 
 authorizes, directs and permits its agents and employees so to divert 
 from said river into said canal water to the amount of seven hun- 
 dred and fifty-six and rffo cubic feet per second, thereby greatly 
 diminishing the flow of water in the river, which said amount is 
 approximately the natural flow of said river at the place of said 
 diversion. Said water so diverted and taken is sold the State of 
 Colorado to persons owning lands in the vicinity of said canal, and 
 the water is used by such owners for irrigating such arid non-ripa- 
 rian and non-saturated lands. The waters so diverted from said 
 river by the State of Colorado would otherwise flow into the 
 State of Kansas and through said valley, and be vastly beneficial. 
 
 The State of Colorado intends and is threatening to build, and will 
 build or cause to be built, unless retrained therefrom, other canals 
 similar in size, character, and design, with the purpose and inten- 
 tion of forever diverting other large quantities of water from 
 said river and irrigating other arid non-riparian and non-satu- 
 rated lands, and the legislature of the State of Colorado has 
 authorized the construction of other such canals along the river in 
 said State. The State of Colorado intends to, and will, unless re- 
 strained by this court, extend said canals and build branches and 
 laterals therto, and will use the water diverted from said river to 
 irrigate arid non-riparian and non-saturated lands not now or ever 
 previously irrigated. 
 
 The said State of Colorado has, by and through legislation, made 
 large appropriations of money for the construction and erection of 
 reservoirs within its territory for the storage of water from streams 
 tributary to the Arkansas river in said State, and has provided 
 boards of control to have charge of the construction, maintenance 
 and operation of such reservoirs, and has provided that the waters 
 so stored in reservoirs may be sold and disposed of for the purpose 
 of being used in the irrigation of lands which are arid and non- 
 riparian to and not saturated by the streams from which such waters 
 are taken. And your orator further states, upon information and 
 belief, that the said State of Colorado has since the year 1891 erected 
 and constructed and is now using not less than four of such reser- 
 voirs — one in each of the counties of Custer, El Paso, Chaffee, and 
 Las Animas — each of which reservoirs takes, stores and holds vast 
 quantities of water which would otherwise flow into the State of 
 Kansas ; and, by reason of the use of said waters as aforesaid, no 
 
THE STATE OF COLORADO ET AL. 
 
 73 
 
 portion thereof is permitted to return to its natural channel or flow 
 in said river. 
 
 The said State of Colorado is now preparing to construct and 
 intends to construct, and unless restrained therefrom will construct, 
 within its territory and near the said river and its tributaries, and 
 at various points along the valley thereof, vast reservoirs within 
 which further to store and hold the natural and the flood waters of 
 said stream ; and it is the intention and expectation of said State so 
 to store and withhold and divert from the channel of said river all 
 of the water thereof. And your orator states, upon information and 
 belief, that surveys for such reservoirs have been made, and plans 
 and specifications are being prepared for the construction of such 
 reservoirs, and the State is preparing to enter upon the construction 
 thereof. If said reservoirs are so constructed and operated by the 
 State of Colorado, the natural flow of the river into the State of 
 Kansas will be taken and held, and the waters thereof will be sold 
 and used for the irrigation of arid and non-riparian and non-satu- 
 rated lands not now irrigated, and will be forever lost to said 
 river and the State of Kansas. 
 
 When the Territory of Kansas was organized, in the year 1854, 
 it extended from its present eastern boundary to the summit of the 
 Rocky mountains, and all of the present drainage area of the Ar- 
 kansas river in Colorado was then included in the Territory of 
 Kansas, and during all of the period from then to the organization 
 of the State of Kansas the common law and the riparian rights 
 herein claimed extended over the whole of the Arkansas valley and 
 to the summits of the Rocky mountains, and had for many years 
 prior thereto. By reason of the prior settlement, occupation and 
 title of the inhabitants of the State of Kansas upon and to the lands 
 situate in the valley of said river, including those upon the banks 
 of said river, the State of Kansas and the owners of land in said 
 valley did acquire, and now have the right to, the uninterrupted 
 and unimpeded flow of all of the waters of said river into and 
 across the State of Kansas. The rights so claimed by your orator 
 accrued prior to anv of the said diversions by or in the State of 
 Colorado, and prior to the accruing of any of the pretended rights 
 claimed by the State of Colorado, or by persons, firms or corpora- 
 tions now taking water from said river or its tributaries. 
 
 8. Your orator further says: The State of Colorado, the other de- 
 fendants herein named, and other persons, firms and corporations 
 engaged in taking water from said river and its tributaries as afore- 
 said, under and in pursuance of authority and license pretended to 
 be granted therefor by the State of Colorado, have by so doing 
 wrongfully, illegally and unlawfully diverted said water from the 
 accustomed channel into and across the State of Kansas, and have 
 greatly damaged and have irreparably injured the State of Kansas 
 and the inhabitants thereof. And by reason of said diversion of 
 water the fertility of all of the lands in said valley, including those 
 upon the banks of said river as well as others, has been greatly di- 
 
74 
 
 THE STATE OF KANSAS VS. 
 
 minished. During the spring and early summer, when crops are 
 growing upon said valley lands in Kansas, the diversion of water in 
 Colorado, as aforesaid, withholds from said Kansas valley lands, 
 and particularly those upon the banks of said river, and those be- 
 longing to the State of Kansas above described, the waters to which 
 said lands are entitled, with the result that the crops, trees and vege- 
 tation growing thereon languish and decline and in many places 
 wither and perish ; and wells which should furnish water for do- 
 mestic use and animals become dry. The said damages are the 
 proximate and necessary result of the diversion of said waters as 
 aforesaid ; and the amount of such damage is enormous and beyond 
 computation, and amounts to vast sums annually, and such dam- 
 ages have increased year by year for the past ten years, substantially 
 in proportion as the diversion of said waters in the State of Colorado 
 has increased. 
 
 The property of your orator situated upon the banks of the river 
 near Dodge city, and used for the purpose of a soldiers’ home, as 
 aforesaid, has been greatly damaged and especially injured by rea- 
 son of the diverson from its channel of the water which would other- 
 wise flow in the said river by and underneath the said tract of land. 
 Its fertility has been greatly diminished, its water-supply lessened, 
 and its salubrity and utility impaired, and, unless the natural and 
 normal flow of water is restored, the value of said property will be 
 entirely detroyed, and the same will be rendered unfit for use as a 
 soldiers’ home, or for any purpose whatever. And the same is true 
 of the property of your orator situate near the city of Hutchinson, 
 and used for the purpose of a State industrial reformatory. 
 
 That by reason of the diversion of said waters, as herein described, 
 during the summer season and during the dry portion of the year, 
 when there is neither rainfall in the State of Kansas nor melting 
 snows in the State of Colorado, the bed of said river in the State of 
 Kansas above the city of Wichita becomes practically and often- 
 times wholly dry. The bed of said stream, through the territory 
 above described, is without high banks, and, in its natural condi- 
 tion, was but a few inches or a few feet below the bottom lands ad- 
 jacent thereto. These adjacent bottom lands are of a loose, sandy 
 loam, and are unprotected on either side by hills or mountains, or 
 by an}' natural forests, and the bed of said stream is almost wholly 
 of sand. During said dry portion of the year said territor}^ is sub- 
 ject to high and constant winds, and said winds change and fill up 
 the bed of the stream and the natural channel thereof with drifting 
 sand, dirt, and debris, until it is practically level with the lands ad- 
 jacent thereto, and said obstructions are rapidly becoming perma- 
 nent by growing vegetation, willows, and trees. And at the times 
 of sudden and excessive rainfall in the State of Kansas, or sudden 
 and excessive melting of the snows in the State of Colorado, the flood 
 waters thereof cannot and do not flow down the natural channel of 
 said river, now filled and obstructed as aforesaid, but overflow said 
 adjacent bottom lands, washing channels therethrough, depositing 
 dirt and debris thereon, and doing great damage to stock pastured, 
 
THE STATIC OF COLORADO ET AL. 
 
 75 
 
 crops grown and improvements situate thereon, and greatly injuring 
 and decreasing the value of said lands. 
 
 9. Wherefore, your orator prays the aid of this honorable court, 
 and asks that a decree may be entered prohibiting, enjoining and 
 restraining the State of Colorado from granting, issuing, renewing, 
 or permitting to be granted or issued or renewed, any charter, li- 
 cense, permit or authority to any person, firm or corporation for the 
 diversion of any of the waters of the Arkansas river or of any of its 
 tributaries from their natural beds, courses and channels within the 
 State of Colorado, except for domestic use; or to construct, main- 
 tain and operate any canals, ditches, branches, laterals or reservoirs 
 now in use in said State. 
 
 Your orator further prays that the said State of Colorado as a 
 State, and each and all the other defandants herein, may be prohi- 
 bited, enjoined, and restrained from constructing, owning, or opera- 
 ting, either directly or indirectly, any canal or ditch whereby the 
 usual and ordinary flow of the waters of said river, or any of its 
 tributaries, shall be diverted from their natural courses and chan- 
 nels; and from constructing, owning, operating or using any reser- 
 voir for the storage of the usual and ordinary flow waters of said 
 river, or any of its tributaries, for purposes of irrigation, sale or mer- 
 chandise. 
 
 Your orator further prays this honorable court to fix and define 
 the respective rights of your orator and the defendants herein in 
 and to the waters of the Arkansas river, its affluents and tributaries, 
 and to enter such decree herein as may be necessary for the ade- 
 quate protection of the rights so fixed and defined. 
 
 Your orator further prays, that it may have such other and fur- 
 ther relief in the premises as the nature of the circumstances of this 
 case may require and as to this honorable court shall seem meet. 
 
 Forasmuch, therefore, as your orator is without remedy in the 
 premises except in a court of equity, may it please your honors to 
 grant unto your orator not only a writ of injunction conformable to 
 the prayer of this amended bill, but also a writ of subpoena of the 
 United States of America directed to each and every of said defend- 
 ants except the State of Colorado, thereby commanding them on a 
 day certain, therein to be named, and under a certain penalty, to be 
 and appear before your honorable court, then and there to answer 
 all and singular the allegations of the foregoing amended bill 
 (answer under oath being hereby especially waived), and to abide 
 and perform such order and decree in the premises as may be 
 awarded against them. 
 
 And your orator, as in duty bound, will ever prav, etc. 
 
 C. C. COLEMAN, 
 
 Attorney-General of the State of Kansas, 
 
 and Solicitor for Complainant. 
 
 N. H. LOOMIS, 
 
 F. DUMONT SMITH, 
 
 S. S. ASHBAUGH, 
 
 Of Counsel. 
 
76 
 
 THE STATE OF KANSAS VS. 
 
 [Endorsed :] Supreme Court U. S., October term, 1903. Term 
 No. 7, original. The State of Kansas, complainant, vs. The State of 
 Colorado et al. Amended bill of complaint. Filed August 17, 
 1903. 
 
 And afterwards, to wit, on the 18th day of August, A. D. 1903, a 
 subpoena was issued and delivered to the marshal for service. 
 
 And afterwards, to wit, on the 14th day of September, A. D. 1903, 
 an appearance for defendant, State of Colorado, was filed in the 
 words and figures following, viz: 
 
 Order for Appearance. 
 
 No. 7, Original. 
 
 Supreme Court of the United States, October Term, 1903. 
 
 The State of Kansas, Complainant, ) 
 
 vs. >No. 7, Orig’l. 
 
 The State of Colorado et al., Defendants. ) 
 
 The clerk will enter my appearance as counsel for the State of 
 Colorado, defendant. 
 
 (Name.) CHARLES D. HAYT, 
 
 (P. O. address.) 450 Equitable building, Denver, Colorado. 
 
 g@“NoTE. — Must be signed by a member of the bar of the Su- 
 preme Court United States. Individual and not firm names must 
 be signed. 
 
 [Endorsed :] Supreme Court U. S., October term, 1903. Term 
 No. 7, orig’l. Appearance for def’t, State of Colorado. Filed Sept. 
 14, 1903. 
 
 And afterwards, to wit, on the 6th day of October, A. D. 1903, the 
 subpoena, and proof of service of same, was filed in the words and 
 figures following, viz: 
 
THE STATE OF COLORADO ET AL 
 
 77 
 
 The United States of Americans; 
 
 The President of the United States of America to The Bessemer 
 Ditch Company, a corporation ; The Oxford Farmers’ Ditcli Corn- 
 pan} 7 , a corporation ; The Otero Canal Company, a cor- 
 [seal.] poration ; The Lake Canal Company, a corporation ; The 
 Riverside Ditch Company, a corporation; The Catlin Con- 
 solidated Canal Company, a corporation ; The Graham Ditch Com- 
 pany, a corporation ; The Lamar Land and Canal Company, a 
 corporation; The Amity Canal and Reservoir Company, a cor- 
 poration; The Rocky Ford Canal, Reservoir, Land, Loan and 
 Trust Company, a corporation; The Fort Lyon Canal Company, 
 a corporation ; The Colorado Land and Canal Company, a cor- 
 poration ; The Great Plains Water Company, a corporation ; The 
 Arkansas Valley Sugar Beet and Irrigated Land Company, a 
 corporation ; The Colorado Fuel and Iron Company, a corpora- 
 tion ; and The Bent-Otero Improvement Company, a corporation, 
 Greeting : 
 
 For certain causes offered before the Supreme Court of the United 
 States, having jurisdiction in equity, you are hereby commanded 
 that, laying all other matters aside and notwithstanding any excuse, 
 you be and appear before the said Supreme Court holding jurisdic- 
 tion in equity within sixty days after the service of this subpoena 
 upon you, at the city of Washington, in the District of Columbia, 
 being the seat of the National Government of the United States, to 
 answer unto the bill of complaint of the State of Kansas in the said 
 court exhibited against you and the State of Colorado. 
 
 Hereof you are not to fail at your peril. 
 
 Witnes- the Honorable Melville W. Fuller, Chief Justice of the 
 United States, at the city of Washington, the 18th dav of August, 
 1903. 
 
 JAMES H. McKENNEY, 
 Clerk of the Supreme Court of the United States. 
 
 Office of the Marshal. 
 
 Supreme Court of the United States, Washington, D. C., October 
 
 Term, 1903. 
 
 The State of Kansas j 
 
 vs. >No. 7, Original. 
 
 The State of Colorado. I 
 
 The within process came to my hand the 18th day of August, 1903, 
 and for the purpose of serving same I, J. M. Wright, marshal of the 
 Supreme Court of the United States, do hereby authorize and depu- 
 tize Dewey C. Bailey, U. S. marshal for the district of Colorado to 
 serve the within process on the parties named therein and make due 
 return thereof. 
 
 J. M. WRIGHT, 
 
 Marshal of the Supreme Court of the U. S. 
 
78 
 
 THE STATE OF KANSAS VS 
 
 United States of America, 
 District of Colorado, 
 
 I hereby certify that I received the within writ at Denver, State 
 of Colorado, on the 7th day of September, A. D. 1903, and that I 
 have duly executed the within writ by delivering to C. K. McHarg, 
 secretary of the Bessemer Ditch Company and H. R. Holbrock, presi- 
 dent of the Lake Canal Company, both at Pueblo on the 8th day of 
 September, A. D. 1903; T. J. Bernard, president of the Oxford 
 Farmers’ Ditch Company, at Fowler on the 8th day of September, 
 A. D. 1903; and W. A. Colt, president of the Rocky Ford, Canal, 
 Reservoir, Land, Loan and Trust Company, and W. A. Colt, presi- 
 dent of the Bent, Otero Improvement Company, and J. N. Beaty, 
 secretary of the Catlin Consolidated Canal Company, all at Manza- 
 nola on the 9th day of September, A. D. 1903; and C. C. Goodale, 
 secretary of the Graham Ditch Company, and A. E. Bent, manager 
 of the Lamar Land and Canal Company, both at Lamar on the 9th 
 day of September, A. D. 1903 ; and Frank Kreybell, secretary of the 
 Ft. Lyon Canal Company at Las Animas on the 10th day of Sep- 
 tember, A. D. 1903; and Rufus Phillips, secretary of the Riverside 
 Ditch Company at La Junta on the 10th day of September, A. D. 
 1903; and W. H. Wiley, manager of the Arkansas Valley Sugar 
 Beet and Irrigated Land Company, and D. C. Beaman, secretary of 
 the Colorado Fuel & Iron Company, both at Denver, on the 10th 
 day of September, A. D. 1903 ; and each of them, personally, a copy 
 of the within writ, and by making known to each of them the con- 
 tents thereof, by reading to each of them the process, and by show- 
 ing the seal thereof to each of them, respectively on the said days 
 and dates. 
 
 After due search and diligent inquiry I have been unable to locate 
 any of the officers, agents or stockholders of the Otero Canal Com- 
 pany, the Amity Canal & Reservoir Company, the Colorado Land 
 & Canal Company, and the Great Plains Water Company in this 
 district. 
 
 DEWEY C. BAILEY, 
 
 U. S. Marshal, 
 By EDWIN H. DAVIS, Deputy. 
 
 Office of the Marshal. 
 
 Supreme Court of the United States, Washington, D. C., October 
 
 Term, 1903. 
 
 The State of Kansas 1 
 
 vs. > No. 7, Original. 
 
 The State of Colorado. ) 
 
 Executed as certified by the endorsements hereon, and return of 
 same made this 22d day of September, 1903. 
 
 J. M. WRIGHT, 
 
 Marshal of the Supreme Court of the United States. 
 
THE STATU: OE COLORADO ET AL. 
 
 79 
 
 [Endorsed :] Supreme Court U. S., October term, 1903. Term 
 No. 7, original. The State of Kansas, complainant, vs. The State of 
 Colorado et. al. Subpoena and marshal’s return. Filed Oct. 6", 
 1903. 
 
 And afterwards, to wit, on the 14th day of October, A. D. 1903, 
 the following order appears of record, viz: 
 
 In the Supreme Court of the United States, October Term, 1903. 
 
 The State of Kansas, Complainant, 1 
 
 vs. V No. 7, Original. 
 
 The State of Colorado et al. I 
 
 On motion of Mr. Joel F. Vaile, of conusel, leave is hereby granted 
 to file the answers of the State of Colorado and the Graham Ditch 
 Company to the amended bill of complaint herein. 
 
 October 14th, 1903. 
 
 And on the same day, to wit, on the 14th day of October, A. D. 
 1903, answers were filed in the words and figures following, viz : 
 
 In the Supreme Court of the United States. 
 
 The State of Kansas, Complainant, 
 vs. 
 
 The State of Colorado et al., Defendants. 
 
 Answer of The State of Colorado, Defendant, to the Amended Bill 
 
 of Complaint. 
 
 Nathan C. Miller, attorney general of Colorado, solicitor for de- 
 fendant. 
 
 E. O. Wolcott, Joel F. Vaile, Charles D. Hayt, Platt Rogers, C. W. 
 Waterman, Clyde Dawson, F. E. Gregg, of counsel. 
 
 In the Supreme Court of the United States. 
 
 The State of Kansas, Complainant, 1 Original Proceed- 
 vs. > ing No. 7. Octo- 
 
 The State of Colorado et al., Defendants. 1 her Term, 1903. 
 
 Separate Answer of the Defendant, The State of Colorado, to the 
 Amended Bill of Complaint of The State of Kansas, Complainant. 
 
 This defendant, now and at all times hereafter saving to itself all 
 and all manner of benefit or advantage of exception or otherwise 
 that can or may be had or taken to the many errors, uncertainties 
 
 I Original Proceed- 
 j ing No. 7. 
 
80 
 
 THE STATE OF KANSAS VS. 
 
 and imperfections in the said amended bill contained, for answer 
 thereto, or to so much thereof as this defendant is advised it is ma- 
 terial or necessary for it to make answer to, separately answering, 
 saith : 
 
 I. 
 
 This defendant, The State of Colorado, alleges that on the first day 
 of August, 1876, it was admitted into the Union and then became 
 and ever since said date has been and now is a sovereign State ; 
 that within the boundaries of its own territory it possesses in full the 
 rights and prerogatives of sovereignty, save as to that portion of 
 power delegated to the Federal Government by the Constitution of 
 the United States, and that this defendant, the said State of Colo- 
 rado, is foreign to the State of Kansas for all but Federal purposes. 
 
 That being so sovereign within its own territory, this defendant 
 has the plenary and exclusive right and power to control and reg- 
 ulate the use of non-navigable waters within its boundaries, includ- 
 ing non-navigable rivers and other streams, and that it has never 
 surrendered this sovereign power over such waters, rivers, and 
 streams, nor delegated such power, nor any portion thereof, to any 
 other sovereignty, either National or State. 
 
 And this defendant alleges that the Arkansas river named in the 
 complainant’s bill is a stream having its sources within the terri- 
 tory of the State of Colorado and flowing within said State for 
 many miles until it crosses the eastern boundary thereof and 
 enters the State of Kansas; that said river is not navigable 
 within either the State of Colorado or the State of Kansas and that 
 the same is not an avenue or instrumentality of interstate com- 
 merce as between the States of Colorado and Kansas. The use 
 of the waters of said stream by diversion thereof, and appli- 
 cation of the same upon the lands in the valley of said river within 
 the territorial limits of the State of Colorado, is essential to the life 
 and well being of the inhabitants of said valle} r in Colorado and 
 the right of continued use of the said waters is as vital to said in- 
 habitants as in the land on which they dwell. This defendant 
 alleges that the jurisdiction and rights of the State of Kansas, either 
 in its sovereign capacity or as a proprietor of lands, do not extend 
 into the State of Colorado; and this defendant further respectful ly 
 alleges that under the rules and principle of international and inter- 
 state law, the sovereign rights of this defendant over the water of 
 the said Arkansas river are not servient to the sovereignty or rights 
 of the State of Kansas and that the said State of Kansas has no 
 dominant estate, right or jurisdiction as against this defendant or its 
 people, in that part of the Arkansas river flowing in the State of 
 Colorado, and that the State of Colorado cannot be subjected to the 
 burden of arresting its development, or of denying to its inhabit- 
 ants the use of an element, which nature has supplied entirely 
 within its own territory, and without which, and the free use thereof, 
 its lands would be uninhabitable. 
 
THF 'STATU OF COLORADO FT AL. 
 
 81 
 
 And this defendant respectfully represents that this, honorable 
 court is without power or jurisdiction to deprive this defendant by 
 judicial decree, or otherwise, of any of its attributes or rights of sov- 
 ereignty acquired and retained by it as one of the States of the 
 Union, or to impair the same without its consent. That this de- 
 fendant, The State of Colorado, out of respect for this honorable court, 
 and in respectful consideration of the claims of its sister State Kan- 
 sas, makes full answer to the bill of complaint of said State of Kan- 
 sas as hereinafter set forth, but in so doing the State of Colorado 
 does not waive any of its sovereign rights or consent that the same 
 or any part thereof may be destroyed or impaired. 
 
 II. 
 
 This defendant for further answer to the bill of complaint, sa} r s : 
 
 1. This defendant admits that the State of Kansas and the State 
 of Colorado, respectively, were admitted into the Union at the dates 
 set forth in the amended bill, and that the original bill in this pro- 
 ceeding and the amended bill were and are exhibited and the pro- 
 ceedings in reference thereto have been and are being prosecuted as 
 in the bill alleged, and admits that the rise, course, drainage, area 
 and general physical characteristics of the Arkansas river and of 
 the valley thereof, except as hereinafter set forth, are as stated in 
 the said amended bill of complaint. 
 
 2. This defendant denies that the said Arkansas river, after leav- 
 ing the mountains, is a navigable stream under the laws and depart- 
 mental rules and regulations of the United States. This defendant 
 admits that the lands bording on the Arkansas river and its tribu- 
 taries in the State of Colorado, as to that part thereof situated 
 within the Rocky mountains and in the foothills at the eastern base 
 thereof, are of such a character that they are not saturated to an 
 appreciable extent by the waters flowing in said river orits tributaries, 
 but denies that said lands herein mentioned are arid or barren up 
 to the margin of said streams' or at all, but, on the contrary, alleges 
 that there has in the past been, and to a certain extent now is, a 
 growth of timber and other vegetation thereon, and this defendant 
 alleges that from the foothills on the eastern base of the said Rocky 
 mountains and thence to the eastern boundary of the State of Colo- 
 rado, the said lands bordering upon the Arkansas river and its tribu- 
 taries in the State of Colorado are of like character to the lands in 
 the western one hundred and fifty miles of the State of Kansas, and 
 that the same are of like physical characteristics. 
 
 3. This defendant denies that any diminution of the flow of said 
 river from the State of Colorado into the State of Kansas is wholly 
 or mainly attributable to the diversion of the waters of said stream 
 in the State of Colorado, and denies that there has been any wrong- 
 ful diversion of said waters within the State of Colorado. This de- 
 fendant denies that the normal flow of said river at the State line 
 for ten months in the year, or for any considerable period, is up- 
 
82 
 
 THE STATE OF KANSAS VS. 
 
 wards of two thousand cubic feet per second, and, on the contrary, 
 alleges that in the absence of any irrigation in the State of Colorado, 
 or any diversion of the waters of said stream in said State, the nor- 
 mal flow, exclusive of periods of flood, would at the said State line 
 be less than five hundred cubic feet per second of time. This de- 
 fendant denies that the tributaries of said river in the State of 
 Kansas are few in number, or that the same do not or could not fur- 
 nish water sufficient to cause a continuous stream to flow in the bed 
 of said river as to that portion of said stream east of the 99th meri- 
 dian (west of Greenwich) and this defendant alleges that east of said 
 99th meridian there are many streams of water tributary to and 
 furnishing a large supply of water to said Arkansas river, and in 
 this connection this defendant alleges that the said Arkansas river, 
 within the State of Kansas, drains an area of more than twenty 
 thousand square miles, and that in the eastern half of the course of 
 said river within said State there is ample rainfall sufficient in itself 
 to create and continue a large stream of water. This defendant ad- 
 mits that the rainfall in the drainage area of said river in the west- 
 ern part of the State of Kansas is light and that a part of the water 
 so falling sinks into the earth, but this defendant denies that only a 
 small portion thereof finds its way to said river, and on information 
 and belief alleges that substantially all thereof, by drainage or by 
 seepage, ultimately supplies the flow of water in the channel of said 
 stream. This defendant denies that the ordinary and usual rainfall 
 in that part of the valley of said river lying east of the 98th meri- 
 dian is inadequate for the growing and maturing of cultivated crops, 
 but admits that in the western part of the said State of Kansas such 
 rainfall is inadequate for so growing and maturing cultivated crops, 
 and alleges that in the portions of said State so affected the inhab- 
 itants thereof have resorted ‘to and are now daily practicing the 
 method of appropriation of water from said Arkansas river, and 
 using the same for the irrigation of lands, in the same manner as in 
 the said bill of complaint is alleged to be done in the State of 
 Colorado. 
 
 4. This defendant denies that from time immemorial, or at all, 
 the waters of said river have flowed through underlying sand and 
 gravel extending in width under the entire valley of the Arkansas 
 river through the State of Kansas, or for any material portion thereof, 
 and denies that any part of the couise and flow of said river is be- 
 neath the surface of the bottom lands of the valley of said river, or 
 that the course or flow thereof is of any greater width than the chan- 
 nel of said river between its banks, or that there is any under-flow 
 of water co-extensive with the valley of said river passing from the 
 State of Colorado into the State of Kansas, or in, or through said 
 State of Kansas. This defendant admits that there are underground 
 waters in the valley of the said Arkansas river outside of and away 
 from the channel of said stream, but on information and belief al- 
 leges the same to be the ordinary water table of the country, and 
 that the same does not constitute an under-flow of the said Arkansas 
 
THE STATE OF COLORADO KT AL. 
 
 83 
 
 river, and this defendant denies that as to such underground waters 
 designated in the complaint as an “under-flow” that ihere is any 
 difference whatsoever between the State of Colorado east of the foot- 
 hills and the said State of Kansas, but alleges that there is a sim- 
 ilarity of physical characteristics in that respect in the valley of 
 the Arkansas river both east and west of the boundary line sepa- 
 rating said States. This defendant denies that such underground 
 water, whether called “ underflow ” or otherwise, furnishes sufficient 
 moisture to grow ordinary farming crops in the absence of rainfall, 
 unless the same be supplemented by a system of irrigation such as 
 is used in the State of Colorado and in the western part of Kansas. 
 This defendant, upon information and belief, denies that the evapora- 
 tion from said river, to any appreciable extent or material degree, 
 tends to cool or moisten the surrounding atmosphere, or promote the 
 growth of vegetation, or enhance the value of lands, or conduce 
 directly or materially or at all to the public health or the making 
 of the locality habitable. This defendant admits that evaporation 
 from said stream is rapid and great, and that it is greater at the 
 west line of the State of Kansas than it is at points farther east, and 
 in this connection this defendant alleges that such evaporation is 
 yet greater in the State of Colorado between the point where 
 said river leaves the foothills and the point where it crosses the 
 boundary between Kansas and Colorado, and this defendant alleges 
 that under the system of irrigation used in the State of Colorado, 
 the injury, if any, resulting to the inhabitants of the State of Kan- 
 sas through the loss of water by evaporation is less than it would be 
 if there were no such irrigation system in use within the State of 
 Colorado. 
 
 This defendant admits that in the western half of the State of 
 Kansas are many acres of arid upland and plateau bearing grass 
 upon which cattle may feed, and that the cattle so fed must have 
 watering places, and this defendant alleges that the number of 
 such watering places in western Kansas has not been diminished, 
 but, on the contrary, has been increased by the methods of irriga- 
 tion used in the State oi Colorado, and especially through the effect 
 of return waters in times when otherwise there would be small flow 
 in the channel of said river, as hereinafter more specifically set forth. 
 This defendant admits that if the surface flow of water in the bed of 
 said river should be “ wholly” cut off from the State of Kansas, that 
 the underground waters under the adjacent bottom lands called in 
 the bill of complaint “under-flow” would diminish, but, upon in- 
 formation and belief, this defendant alleges that such diminution 
 would result only because of the increased drainage resulting from 
 such process, but this defendant alleges that the system of irrigation 
 practiced in the State of Colorado has not had the effect, and never 
 can have the effect of wholly or materially cutting off from the State 
 of Kansas a surface flow of water in the bed of said river, and, on 
 the contrary, alleges that said irrigation system equalizes the flow 
 of said river in the channel thereof through the State of Kansas, 
 
84 
 
 THE STATE OE KANSAS VS. 
 
 diminishing the volume of flood water and increasing the supply in 
 periods of comparative drought. 
 
 5. This defendant admits that that part of the bottom lands of the 
 river lying east of the 98th meridian (west of Greenwich) including 
 those adjacent to the bed of said river are fertile and productive 
 and adapted to the growth of crops mentioned in the bill, and that 
 said lands are valuable for grazing, but this defendant denies that 
 in the western part of the State of Kansas said bottom lands are 
 fertile or productive or valuable for farming purposes or adapted to 
 the growing of corn, wheat, alfalfa, rye, domestic grasses, orchards, 
 fruits, vegetables, or like crops, grains or grasses, except by the aid 
 of irrigation and by the diversion and appropriation of water from 
 the said Arkansas river, which said diversion and appropriation of 
 water is, under the sanction of the laws of the State of Kansas as 
 hereinafter set forth, practiced by the inhabitants of that portion of 
 the State of Kansas west of the 98th meridian aforesaid. 
 
 6. Whether or not the actual value of the bottom lands in the 
 valley of the Arkansas river in the State of Kansas is the value set 
 up in the bill of complaint, this defendant has not, and cannot ob- 
 tain, sufficient information upon which to base a belief, but this de- 
 fendant denies that the value of said lands is in any degree depend- 
 ent upon the said lands being permitted to receive the benefits 
 arising from the natural and normal flow of water in said river, and 
 denies that the acts alleged to have been done by this defendant 
 and its inhabitants are wrongful, and this defendant denies that by 
 reason of the alleged wrongs in the said bill of complaint set forth, 
 or otherwise, the value of said lands has shrunk many millions of 
 dollars, or in any sum whatsoever, so far as such value is dependent 
 upon the use of the waters of said Arkansas river, and denies that 
 the said alleged wrongs have resulted in a loss to the citizens of the 
 State of Kansas, or to the taxable wealth, or to the revenue of said State, 
 or to the school system thereof, in any amount or extent whatso- 
 ever. 
 
 7. This defendant admits the acquisition by the State of Kansas of 
 sections numbered 16 and 86 of each Governmental township, and 
 admits the derivation of title to certain alternate sections of land to 
 aid in the construction of certain railroad and telegraph lines in 
 said State as in the bill of complaint set forth, and that the said 
 lands have been conveyed and are now held by the grantees thereof, 
 and this defendant admits the settlement of certain of the lands in 
 the State of Kansas in the Arkansas valley from the south line of the 
 State of Kansas to the city of Great Bend, and subsequently the 
 settlement of certain lands from Great Bend westward to the State 
 line of the State of Kansas, and that the settlers thereon and their 
 successors in interest have continuously held and owned all of the 
 riparian and other rights of every kind and nature appertaining to 
 or belonging to said lands, but this defendant alleges that such 
 “ riparian and other rights ” so held by said settlers and their suc- 
 cessors in interests were at all times and now are subject to the 
 
THE STATE OF COLORADO ET AL. 
 
 85 
 
 riparian rights of other proprietors of lands in the valley of the Ar- 
 kansas higher up said stream, and subject also to the right of the 
 inhabitants in the valley of said Arkansas river and those who 
 should from time to time become inhabitants therein to appropriate 
 the waters of said stream and use the same in the irrigation of lands 
 within the valley of the said Arkansas river through any portion of 
 its course, as hereinafter more specifically set forth. 
 
 8. This defendant denies that all of the territory of the State of 
 Kansas became a part of the territory of the United States by the 
 treaty with the French Republic of April 30th, 1803, ceding Louisi- 
 ana, and, on the contrary, alleges that all that portion of the said 
 State of Kansas lying west of the 100th meridian (west of Green- 
 wich) and south of the Arkansas river was never derived under said 
 treaty and that said portion of said State never belonged to the 
 French Republic, and in that behalf this defendant alleges that the 
 said portion of said territory, being that portion of Kansas adjoining 
 the State of Colorado, and on the south side of the Arkansas river, 
 was derived by the United States from the Republic of Texas, which 
 in turn succeeded in sovereignty over said territory to the united 
 Mexican States. This defendant again denies that the said Arkansas 
 river is now, or at any time has been, a navigable river in the State 
 of Kansas or that it has at any time been treated as such, or that the 
 title to the bed of said river in the State of Kansas ever passed to 
 said State, or that said State is now or ever has been the owner 
 thereof, or entitled to the control thereof, save and except that as a 
 political organization it has sovereignty over the same, or that it has 
 ever assumed to exercise any authority over said river or the bed 
 thereof, except as by an act of the legislature of the State of Kansas 
 passed in 1886, it declared that the right to the use of running water 
 flowing in a river or stream of Kansas for the purposes of irrigation 
 might be acquired by appropriation, and by a like act passed in 
 1891 it declared that in that portion of the State west of the 99th 
 meridian all natural waters standing or running should be devoted — 
 first, to purposes of irrigation in aid of agriculture, subject to ordi- 
 nary domestic uses; and secondly, to other industrial uses, and that 
 the same might be diverted from the natural beds, basins or chan- 
 nels for such purposes and uses, and by like acts subsequently passed 
 it has enlarged and extended the right to use the natural waters of 
 said State for irrigation purposes, eastward to the 98th meridian. 
 
 9. This defendant has no knowledgeof the several conveyances or 
 grants of lands in the valley of the Arkansas river in the State of 
 Kansas heretofore made by the Government of the United States, 
 but avers that all of the conveyances or grants referred to in said 
 bill of complaint were made subject to all rights to water from said 
 river for irrigation purposes theretofore, and thereafter to be, ac- 
 quired, and were taken with full knowledge on the part of said 
 State of Kansas and by each and every grantee of said lands that the 
 waters of said river had been, were being and would be appropriated 
 in the State of Colorado for beneficial uses in the irrigation of land, 
 
86 
 
 THE STATE OF KANSAS VS. 
 
 and that the lands in said valley in the State of Kansas west of the 
 98th meridian and in the State of Colorado could only be made 
 available for agricultural purposes by like appropriation and use, 
 and that the Government of the United States as the primary owner 
 of said lands had assumed that it held the same subject to the appro- 
 priation of tiie waters of said river for irrigation purposes, and that 
 all patents of lands granted after July 9th, 1870, should be subject 
 to all vested and accrued water rights over said river. 
 
 10. As to that certain tract of land described in paragraph 5 of 
 plaintiff’s bill, consisting of lots numbered 3, 5, 6 and 7 of section 
 3, township 27 south, of range 21 west, in Ford county, Kansas, 
 alleged to be used for the maintenance of a soldier’s home, this de- 
 fendant alleges upon information and belief that the said State of 
 Kansas as a proprietor of said lands has not made and does not now 
 make any beneficial use of the waters flowing in the channel of the 
 said Arkansas river for the improvement of said lands or the main- 
 tenance of said soldiers’ home, and this defendant denies that the 
 value of said lands for farming purposes depends upon the flow of 
 water in the bed of the river or upon the so-called under-flow be- 
 neath the said land, and under the circumstances and conditions of 
 the use of said water this defendant denies that the said State of 
 Kansas is entitled to the full, free and natural flow of all waters 
 which naturally would flow in said river to or beneath said land, 
 and denies that the rights of the State of Kansas thereto are prior 
 or superior to the rights or claims of this defendant or of the inhab- 
 itants of the State of Colorado, so far as pertains to the waters of the 
 said Arkansas river. 
 
 11. As to those certain lands described in paragraph 6 of the com- 
 plainant’s bill as being in sections 18 and 19, township 23 south, of 
 range 5 west of the sixth principal meridian in Reno county, Kansas, 
 and designated as reformatory lands, this defendant alleges upon 
 information and belief that the said State of Kansas as the propri- 
 etor of said lands has never made any beneficial use of the waters of 
 the Arkansas river flowing by or near said lands, and this defend- 
 ant denies that, under the circumstances and conditions affecting 
 the said Arkansas river and the waters thereof, the said State of 
 Kansas is entitled to the full and natural flow of the water of the 
 Arkansas river in its accustomed place or at its normal height or in 
 its natural volume underneath or by the said reformatory lands, 
 and denies that the rights of the said State of Kansas are prior to 
 the rights of this defendant or of the inhabitants of the said State of 
 Colorado in the waters of said Arkansas river. 
 
 12. This defendant denies that the legislature of the State of 
 Colorado has passed laws authorizing or licensing the diversion of 
 water from said Arkansas river, or has granted to any person, firm 
 or corporation the right or authority to make such diversion, but, 
 on the contrary, avers that said legislature has at all times recog- 
 nized the right to make such diversion as one existing independent 
 of any action by it and as one founded on necessity and on the 
 
THE STATE OF COLORADO ET AL. 
 
 87 
 
 usages and customs of the arid region of the United States existing 
 prior to the adoption of the constitution of the State of Colorado, 
 and approved and confirmed by the statutes, decisions and rulings 
 of the legislative, judicial and executive departments of the United 
 States, and said legislature has never assumed the power to either 
 grant or restrain the right to divert the waters of the Arkansas 
 river for irrigation or other purposes or to do more with respect to 
 such diversions than to regulate and to control the same by ap- 
 propriate legislation. 
 
 And this defendant denies that as a result of the exercise of the 
 rights alleged in the amended bill to be claimed by the State of 
 Colorado all of the waters of the said Arkansas river are forever lost 
 to said stream and are thereby prevented from flowing into and 
 through the State of Kansas, and, on the contrary, alleges that as a 
 result of the irrigation systems in vogue in the State of Colorado 
 and by the storage and return of waters through such irrigation 
 systems, all the surplus of such waters not actually consumed in the 
 supply of vegetation is returned to the said Arkansas river and 
 flows down into and through the State of Kansas, and the flow of 
 the said Arkansas river in the State of Kansas is thereby equalized, 
 the dangers from flood diminished and the supply of water in times 
 of comparative drought increased. 
 
 And this defendant further alleges that the allegation in the 
 amended bill as to the appropriations of water from the Arkansas 
 river there stated to be 4,200 cubic feet per second from the said 
 river, and from the affluents and tributaries thereof 4,300 cubic feet 
 per second, does not represent the actual diversion of said waters, or 
 the diminution of the volume of water flowing in the channel of said 
 river ; that waters returned to the channel of the stream from ditches 
 farthest up the stream are again taken out by ditches lower down 
 on the stream, and that to a large extent the same water is repeatedly 
 used in successive ditches, and this defendant denies that as a result 
 of such appropriations, or otherwise, the total average flow of the 
 said Arkansas river or the total average flow of its affluents and 
 tributaries is taken out, used or absorbed as in the bill of complaint 
 alleged, and denies that any considerable portion of the ordinary 
 flow of said Arkansas river is prevented from passing into the State 
 of Kansas, and, on the contrary, alleges that the major part of the 
 aggregate amount of water derived from the channel of the said 
 Arkansas river in the State of Colorado, again by drainage, seepage 
 and return waters, enters the said stream and the channel thereof 
 and continues to flow into and through the State of Kansas. 
 
 13. This defendant admits that ditch owners are diverting from 
 the natural channel the waters flowing in the bed of the Arkansas 
 river and it tributaries in the State of Colorado, but denies that they 
 are carrying said waters great distances from their natural courses 
 or discharging them upon non-riparian lands in the sense in which 
 the word “ riparian ” is used in the assertion of the complainant’s 
 claims, and this defendant alleges that all of the waters diverted 
 
88 
 
 THE STATE OF KANSAS VS. 
 
 from the channel of the Arkansas river in the State of Colorado are 
 used, and used solely, within the valley of the Arkansas river, and 
 and while the same are discharged for agricultural purposes upon 
 arid lands, such lands are valley lands in the drainage of the said 
 Arkansas river, and this defendant alleges that the waters so diverted, 
 after being used upon the lands so lying in the valley of the 
 Arkansas, are returned to said channel, diminished only to such ex- 
 tent as is necessary and inevitable from the use of the same for agri- 
 cultural purposes, and this defendant denies that such waters are 
 wholly lost to such streams, or to the State of Kansas, or to its in- 
 habitants, or that such diversion is carried to such an extent that 
 no water flows in the bed of said river from the State of Colorado to 
 the State of Kansas during the annual growing season or that the 
 so-called under-flow of water in Kansas is thereby diminished, and, 
 on the contrary, this defendant alleges as heretofore stated that the 
 return waters from such systems of irrigation again enter the channel 
 of the said river, and that the same do flow into the State of Kansas 
 and through the said State, and this defendant denies that by the 
 diversion of water from the said river in the State of Colorado the 
 bottom lands of said river have become or will become injured, 
 ruined or deserted. 
 
 14. This defendant denies that the State of Colorado or the corpo- 
 rations joined with it as defendants in this cause claim or openly 
 assert their right or power to do as they please with all of the waters 
 of the Arkansas river within the borders of Colorado regardless of 
 any rights which the State of Kansas or its citizens may have therein, 
 but this defendant, and, as this defendant is advised, the corpora- 
 tions associated with it as defendants herein, do claim and assert 
 that they have the right and power to apply the water of the Arkan- 
 sas river within the borders of Colorado to beneficial and necessary 
 uses for the development of the country and the support of the 
 inhabitants thereof upon those lands situated within the valley and 
 drainage of the Arkansas river, returning the said waters after such 
 use and to the extent of any surplus remaining from such use into 
 the channel of the Arkansas river. 
 
 15. This defendant admits that a canal was commenced about the n 
 year 1890 near Canon City, Colorado, understate control, but alleges 
 that the construction thereof was thereafter abandoned, and that no 
 water has at any time been diverted from said river into or through 
 said canal by this defendant, or in its behalf, and that this defend- 
 ant has not at any place along said river taken or diverted any of 
 the water thereof that would otherwise have flowed into the State 
 of Kansas as a part of the usual and ordinary flow of said river, and 
 
 is not now so doing or intending so to do, or to construct works 
 whereby the same may be done. 
 
 16. This defendant admits that certain reservoirs have been con- 
 structed with money appropriated by the legislature of the State of 
 Colorado in which to store the flood and storm waters of certain 
 ributarics of said Arkansas river which would otherwise overflow 
 
THE STATE OF COLORADO ET AL. 
 
 89 
 
 the banks of said tributaries, and said waters so stored have been 
 discharged from said reservoirs into said tributaries during periods 
 of low water for the purpose of equalizing the flow of water in said 
 tributaries so that the same might be used for irrigation purposes 
 by private appropriators below, but this defendant has not stored, 
 nor does it intend to store, the ordinary and usual flow of said river 
 or its tributaries, nor to interfere by storage reservoirs already or 
 hereafter to be constructed with the usual and ordinary flow of said 
 river in the State of Kansas. 
 
 17. This defendant denies that when the Territory of Kansas was 
 created or the State of Kansas admitted to the Union, the water of 
 said, Arkansas river was wholly unappropriated, or that the common 
 law as to riparian rights, as claimed in said amended bill of com- 
 plaint, extended over said valley in the Territory of Kansas, or that 
 the owners of lands along said river were entitled to the unimpeded 
 flow of the water of said river, and, on the contrary, avers that nu- 
 merous appropriations of said water had been made for irrigation 
 purposes long prior to the creation of said Territory, and many 
 more were made prior to the conveyance by the Government of the 
 United States of any of the lands lying along or adjacent to said 
 river, and that the necessity and right to divert the water of said 
 river for the reclamation of arid land had long previous to the crea- 
 tion of said Territory been asserted and exercised by the persons in 
 possession of said lands, and said necessity and right were thereafter 
 recognized by the legislature of the Territory of Kansas, and all lands 
 along said river acquired by the State of Kansas or by individuals 
 or corporations within the Territory or State of Kansas were taken 
 and held with full knowledge of the necessity of diverting the water 
 of said river for the purpose of reclaiming and making productive 
 the lands along said river and of the usages and customs there pre- 
 vailing authorizing the same, and that appropriations had been, 
 were being and would be made in that portion of the valley which 
 is now within the jurisdiction of the State of Colorado, and that to 
 the extent of said appropriations the flow of water of said river might 
 by said usages and customs be lawfully impeded for the purpose of 
 applying the same to beneficial uses within the valley of said Ar- 
 kansas river. 
 
 18. This defendant denies that by the taking of water from said 
 river in the State of Colorado in the manner alleged in said bill of 
 complaint the State of Kansas, or any of its citizens, or the owners 
 of land along said river in the State of Kansas, have been injured 
 in any degree whatever, or that the fertility of the lands or the use 
 thereof to the fullest extent to which the same is naturally capable 
 of use, have been diminished or impaired, or that the crops, trees or 
 vegetation growing along said river have perished or will perish, or 
 that the wells have become or will become dry, or that the salubrity 
 or healthfulness of said valley or any of the lands adjacent to said 
 river have been or will be impaired. 
 
 And this defendant denies that by reason of the diversion of said 
 
90 
 
 THE STATE OF KANSAS VS. 
 
 waters as in the complaint alleged during the summer season or 
 during the dry portion of the year, the bed of said river in the State 
 of Kansas above the city of Wichita becomes practically or often- 
 times wholly dry, and this defendant alleges that if in said portion 
 of the said State of Kansas the bed of said stream and the natural 
 channel thereof is becoming filled with drifting sand, dirt or debris, 
 and said obstructions are rapidly becoming permanent by growing 
 vegetation, and if at the time of sudden and excessive rainfall in the 
 State of Kansas and of the sudden and excessive melting of snows 
 in the State of Colorado the flood waters thereof can not flow down 
 the natural channel of said river, so filled as aforesaid, but travel the 
 adjacent bottom lands, washing channels therethrough and deposit- 
 ing dirt and debris thereon and doing great damage to stock pas- 
 tures, crops grown or improvements situated thereon, and injuring 
 or decreasing the value of said lands, such effects are not attribu- 
 table in any degree whatsoever to the irrigation system within the 
 State of Colorado, but the same are attributable to and fully explained 
 b} r other causes not connected with the diversion and appropriation 
 and use of water for irrigation purposes in the State of Colorado, and 
 this defendant alleges that the evils so alleged to exist are dimin- 
 ished rather than intensified by the existence of said irrigation sys- 
 tems within the State of Colorado. 
 
 III. 
 
 This defendant for further answer to the bill of complaint, says: 
 
 1. The several appropriations of the waters of the Arkansas river 
 complained of in said bill of complaint were made in accordance 
 with and in reliance upon the doctrine respecting the appropriation 
 of the water of the natural streams for irrigation and other bene- 
 ficial uses which, by usage and custom prevailed in the arid region 
 of the United States at the time of said appropriations, and which, 
 by the recognition and approval of the United States, has at all times 
 been the law applicable to the public lands in said arid region. 
 
 2. Prior to the acquisition of private title to any of the lands ac- 
 quired by the General Government from France, Mexico and Texas 
 by purchase, cession and annexation, respectively, comprising all 
 the lands now within the jurisdiction of the United States between 
 the Mississippi river and the Pacific coast, said General Government 
 caused said lands to be explored and reported upon for the purpose 
 of ascertaining the natural resources and the physical and climatic 
 characteristics of the various portions thereof, and by said explora- 
 tions and information obtained from time to time, it became known 
 to the United States and the inhabitants thereof that from about 
 the 98th meridian to the coast range of the Pacific slope, the land 
 was an arid waste without timber or useful vegetation, except in the 
 mountains, and that although the soil was rich and fertile, and 
 great deposits of gold, silver and other valuable minerals existed 
 therein, the soil could not be made productive nor the minerals ex- 
 
THE STATE OF COLORADO ET AL. 
 
 91 
 
 traded, nor could the land be inhabited, except by the diversion of 
 water from the natural streams and the application thereof to agri- 
 cultural and mining uses, and that in that portion of said domain 
 which lay south of the Arkansas river, and which had formerly 
 been a part of Mexico, the laws, customs and usages there prevail- 
 ing authorized and sanctioned the diversion and use of water for 
 agricultural and other useful purposes in contravention of any right 
 of the riparian owner to have such water continually flow in its 
 natural channel. 
 
 3. With the earliest settlement in said arid region for agricultural 
 and mining purposes, which was long prior to the opening of said 
 lands to pre-emption and purchase, by necessity, common consent 
 and uniform practice, the doctrine obtained that the waters of all 
 the natural streams flowing through said arid region were subject 
 to diversion and use for agricultural and mining purposes, and that 
 the right to the water thus diverted could be obtained both as 
 against the United States as the owner of the public lands and all 
 grantees of the United States of lands lying along said streams, 
 and that the right of the several appropriators from any given 
 stream should be in the order of diversion and use, the first in time 
 being the first in right, and said doctrine has at all times been and 
 now is the customary and statute law of said arid region in respect 
 to the natural streams thereof. 
 
 With knowledge and in recognition of such right and custom of 
 the inhabitants of such arid region to divert waters, and to apply 
 the same to beneficial and necessary uses, the United States, in its 
 treaty with Spain of February 22nd, 1819, and afterwards in its 
 treaty of January 12th, 1828, with the united Mexican States, ex- 
 pressly stipulated and provided, that the use of the waters of the 
 Arkansas river, and of certain other boundary streams, should be 
 common to the respective inhabitants of both nations, parties to such 
 treaties respectively. 
 
 4. Upon the creation and admission of the several Territories and 
 States of said arid region, including Kansas, both as a Territory 
 and State, they recognized, approved and confirmed, and from thence 
 hitherto have enforced said doctrine, and rights to water by diver- 
 sion from the streams of said arid region have been maintained as 
 against all claims of riparian rights in conflict therewith. 
 
 5. The Government of the United States, long prior to the sale by 
 it of any of the public lands in the Arkansas valley, recognized and 
 approved said doctrine, and applied the same to said public lands, 
 and renounced and surrendered all riparian rights which it might 
 have asserted in contraventiou of said doctrine, aiid from thence 
 hitherto has held and disposed of said lands subject to and in ac- 
 cordance with said doctrine, and has at all times encouraged and 
 promoted the diversion and use of the water of the streams in said 
 arid region for agricultural and mining purposes, and by grants of 
 public money has aided in the construction of canals, ditches and 
 
92 
 
 THE STATE OF KANSAS VS. 
 
 reservoirs and other appliances for the diversion, storage and use of 
 water, in the reclamation and cultivation of the public lands. 
 
 6. By an act of Congress, approved September 4, 1841, and by 
 subsequent acts relating thereto, the public lands, including the 
 lands in said arid region were declared subject to pre-emption and 
 homestead purchase, and all persons desiring to avail themseves of 
 the provisions of said acts were required to make a settlement upon 
 the land in person and to inhabit and improve the same. It was 
 then, and at all times since has been well known to the General Gov- 
 ernment, and particularly to Congress and the executive depart- 
 ments having in charge the administration of said acts, that the 
 provisions thereof in respect to settlement, inhabitancy and im- 
 provement could not be complied with in the pre-emption and pur- 
 chase of arid lands, except by the diversion of the waters of the 
 streams upon the public lands and the application thereof to do- 
 mestic and irrigation purposes in reliance upon the continuance of 
 the right so to do in accordance with said doctrine of appropriation. 
 
 7. By means of the diversion and use of the waters of said natural 
 streams, many million acres of the public lands in said arid region 
 have been settled upon, inhabited and improved and title thereto 
 obtained from the General Government, in the belief, that by its ac- 
 tion and conduct in the disposition of its public lands, the United 
 States had accepted and applied to said public lands the doctrine of 
 appropriation as hereinbefore set forth ; and there has been paid to 
 said General Government, on account of said lands so improved by 
 the diversion and use of water in accordance with said doctrine, up- 
 wards of twenty million dollars, and all of the lands in the valley 
 of the Arkansas in the State of Colorado, save and except certain 
 Indian lands, were settled upon and patents therefor obtained by 
 proof of the diversion and use of the waters of said Arkansas river 
 in the reclamation and improvement of said lands, said diversions 
 so made being those complained of and sought to be enjoined in and 
 by the bill of complaint herein. 
 
 8. The Territory of Kansas by its' legislature, recognized and ap- 
 proved the said doctrine of appropriation, and in pursuance thereof 
 in 1859 authorized the St. Charles Town Company to divert the 
 waters of the South Platte river and Cherry creek, and the Mountain 
 Company to divert the waters of the Piatte river, and the El Paso 
 Town Company to divert the waters of the tributaries of the Ar- 
 kansas river heading at Pike’s Peak ; and in 1860 authorized the 
 Capital Hydraulic Company to divert for irrigation purposes all the 
 waters of the South Platte river and Cherry creek. And the State 
 of Kansas, by its legislature, has also recognized, approved and 
 adopted said doctrine; an act of said legislature enacted in 1868 
 authorizing corporations to construct canals diverting water for irri- 
 gation purposes ; an act of the legislature enacted in 1886 providing 
 that the running waters of the State might be appropriated for pur- 
 poses of irrigation ; an act of said legislature enacted in 1891, pro- 
 viding that in all that portion of the State west of the 99th meridian 
 
THE STATE OF COLORADO ET AL. 
 
 93 
 
 all natural waters, whether standing or running and whether surface 
 or subterranean, should be devoted first, to purposes of irrigation in 
 aid of agriculture, subject to ordinary domestic uses; and, second, 
 to other industrial purposes, and might be diverted from natural 
 beds, basins or channels for such purposes and uses; and another 
 act enacted in 1895 providing for the development of the land west 
 of the 98th meridian by irrigation and regulating the distribution 
 of water in the same manner as in Colorado. Said State by said 
 several acts renouncing and surrendering all rights it may have had 
 in said river of the lands adjacent thereto as riparian owner in con- 
 travention of the right to divert the waters thereof for irrigation in 
 Kansas or Colorado. 
 
 And in reliance upon the approval and adoption of said doctrine 
 of appropriation by said State of Kansas, about five hundred miles 
 of large canals and ditches have.been constructed in Kansas, west 
 of the 9th meridian at a cost approximating two million dollars and 
 thereby the waters of said Arkansas river have been appropriated 
 and applied to about one hundred and fifty thousand acres of land 
 in the valley of said river, in the State of Kansas. 
 
 9. By the act of Congress approved January 29th, 1861, admitting 
 Kansas into the Union, it was specifically provided that the State 
 should never interfere with the primary disposal of the soil within 
 the same by the United States, or with any regulations Congress 
 might find necessary for securing the title in said soil to bona fide 
 purchasers thereof, and that all laws of the United States not locally 
 inapplicable should have the same force and effect within said State 
 as in other States of the Union. 
 
 10. Following the admission into the Union of the State of 
 Kansas, said doctrine of appropriation was further recognized by 
 Congress as the law applicable to the public lands and the natural 
 streams thereof, including those in the State of Kansas, by the fol- 
 lowing acts : 
 
 An act approved July 26, 1866, by which it was provided that 
 whenever, by priority of possession, rights to the use of water for 
 mining, manufacturing or other purposes, have accrued and are 
 recognized according to local customs, laws and decisions, the 
 owmers and possessors shall be maintained and protected in their 
 rights ; 
 
 An act approved July 9, 1870, in which it was provided that all 
 patents granted, or pre-emptions or homesteads allowed, should be 
 subject to any vested and acquired water right or rights to ditches 
 and reservoirs used in connection with such water rights; 
 
 An act approved March 3, 1877, known as “ The Desert Land 
 act,” which declared that all waters of all lakes, reservoirs and other 
 sources of supply upon the public land should remain and be held 
 free for the appropriation and use of the public for irrigation, mining 
 and manufacturing purposes, and in and by which it was also pro- 
 vided that by the construction of canals and ditches and the appli- 
 
94 
 
 THE STATE OE KANSAS VS. 
 
 cation of said waters to the irrigation of the public lands, the title 
 to said lands might thereby be obtained from the United States ; 
 
 An act approved March 3, 1891, confirming the rights of way over 
 the public lands in the arid region for canals and reservoirs for irri- 
 gation purposes; 
 
 An act approved August 18, 1894, providing for the conveyance 
 to the several States in the arid region of such public lands as they 
 might reclaim and irrigate; 
 
 An act approved June 17, 1902, authorizing and undertaking the 
 construction of canals, ditches and reservoirs in the arid region, in- 
 cluding therein the State of Colorado and the western portion of 
 Kansas, whereby the waters of the public lands might be diverted 
 and used for irrigation purposes, and appropriating for that purpose 
 the proceeds of all moneys received from the sale of public lands in 
 the State of Colorado and Kansas. 
 
 Under and by virtue of said act approved March 3, 1877, which 
 was made applicable to lands in Colorado by an act approved March 
 3, 1891, several thousand acres of land in the Arkansas valley in the 
 State of Colorado, were reclaimed and irrigated, and the diversions 
 of water for said purposes are in part the diversions complained of 
 in the said bill of complaint. 
 
 11. Said doctrine was further recognized by Congress by the ap- 
 propriation, on October 2nd, 1888, of $229,000 for the purpose of 
 investigating the extent to which the arid region of the United 
 States might be redeemed by irrigation and for the segregation of 
 the irrigable lands in such arid region, and for the selection of sites 
 for reservoirs and other hydraulic works necessary for the storage 
 and utilization of water for irrigation and also by a further appro- 
 priation made on March 2nd, 1889, of $450,000 for the like purpose, 
 all of which moneys were expended in investigating and selecting 
 reservoir sites and in running contour lines for the purpose of aiding 
 and assisting those desiring to appropriate the waters of the natural 
 streams and using the same for irrigating purposes. 
 
 12. The provisions of the constitution of the State of Colorado set 
 forth and complained of in the bill of complaint, were adopted in 
 harmony with and in pursuance of the policy of the United States 
 in respect to the diversion and use of water in the irrigation of land, 
 and the same do not conflict witli or contravene any act of Congress 
 bearing upon said appropriation and use, but, on the contrary, are 
 intended as a constitutional guaranty that the right to divert water 
 for beneficial purposes as authorized and encouraged by the acts of 
 Congress referred to shall never be denied, and said provisions were 
 accepted and approved by the action of Congress in admitting Colo- 
 rado into the Union, and the several acts of the legislature of Colorado, 
 referred to in said bill of complaint, have been enacted for the pur- 
 pose of protecting and regulating appropriations made in pursuance 
 of the usages and customs prevailing in the arid region and the 
 rights of appropriation as recognized and confirmed by the acts of 
 Congress referred to. 
 
THE STATIC OP COLORADO ET AL. 
 
 95 
 
 13. All grants and patents of land in the valley of the Arkansas, 
 in the State of Kansas, were made by the United States, subject to 
 the doctrine of appropriation heretofore set forth, and were accepted 
 by the several grantees thereof with the knowledge that in the sale 
 and disposition of the arid lands of the United States along said 
 Arkansas river west of the 97th meridian, it had been and would be 
 necessary to divert and use the waters of said river in the improve- 
 ment and cultivation thereof, and said grants and patents of land 
 in the State of Kansas were made subject to the right of all persons 
 desiring the use of the same for agricultural purposes to appropri- 
 ate the waters of the Arkansas river, either in Kansas or Colorado, 
 to the full extent of said river, and all patents granted and all pre- 
 emptions and homesteads allowed of lands in the valley of the 
 Arkansas in the State of Kansas subsequent to July 9th, 1870, in- 
 cluding in particular the lands described in the bill of complaint 
 situated in Ford county, conveyed to said State of Kansas bv the 
 United States on the 13th day of June, 1889, and the lands in Reno 
 county described in said bill of complaint conveyed to the said State 
 of Kansas at divers times subsequent to said 9th day of July, 1870, 
 were, by the act of Congress of July 9th, 1870, made subject to all 
 water rights in said river and rights of ditches and reservoirs in 
 connection therewith acquired in accordance with the local customs, 
 laws and decisions of Colorado. 
 
 IV. 
 
 This defendant, for further answer to the bill of complaint, sa}^s : 
 
 1. Many of the appropriations of the waters of the Arkansas 
 river, in the State of Colorado, complained of in said bill of com- 
 plaint, were made prior to the creation of the Territory of Colorado 
 and while said Arkansas valley was a part of the Territory of Kan- 
 sas, and defendant is, therefore, unable to state the times at which 
 said appropriations were made or the amount of water thus diverted 
 from said river. 
 
 2. Following the creation of the Territory of Colorado and prior 
 to the year 1865, sixt}'-eight ditches and canals were constructed, 
 and 615 cubic feet of water per second of time were thereby diverted 
 from said river and its tributaries, and have at all times since been 
 used in the irrigation of land in said Arkansas valley. From and 
 including the year 1865 to the year 1870,127 additional ditches and 
 canals were constructed, and 458 cubic feet of water per second of 
 time were thereby diverted from said river, and at all times since 
 have been continuously used in the irrigation of lands in said valley. 
 From and including the year 1870 to the year 1880, 268 additional 
 ditches and canals were constructed and 945 cubic feet of water per 
 second of time thereby diverted, and at all times since used in the 
 irrigation of land in said valley. From and including the year 
 1880 to the year 1890, 250 additional ditches and canals were con- 
 structed, and 3,859 cubic feet of water per second of time thereby 
 
96 
 
 THE STATE OF KANSAS VS. 
 
 diverted from said river, and at all times since continuously used 
 when obtainable in the irrigation of land in said valley. All of said 
 ditches and canals have been constructed by individuals and cor- 
 porations, and the water, when obtainable, has been taken from said 
 river and applied to the reclamation and irrigation of about five 
 hundred thousand acres of land in said valley which, before said 
 diversion and use, was arid and incapable of producing crops, all 
 of said lands being in the watershed of and riparian to said river, 
 and none of the waters of said river being diverted and carried to 
 lands beyond the watershed of said river. 
 
 3. In the construction of said canals and ditches and the reser- 
 voirs connected therewith, many million dollars have been expended, 
 and in the lands irrigated by means of said ditches and canals, and 
 in the improvements thereon and the machinery used in the culti- 
 vation thereof more than twenty-five million dollars have been in- 
 vested. Numerous towns and villages have grown up in said valley 
 in the State of Colorado, having as an aggregate population more 
 than one hundred thousand, and houses, stores, churches, school 
 houses, factories and public and private buildings for various pur- 
 poses have been constructed for occupation and use, and actually 
 used in connection with the continued settlement and cultivation of 
 the lands in said valley by the use of the waters of said Arkansas 
 river, the amount so invested aggregating many million dollars. 
 
 4. In 1879 and 1881 the legislature of Colorado enacted certain 
 statutes providing for the adjudication of rights to water by appro- 
 priation for agricultural uses from the streams in said State, under 
 and by virtue of which irrigation districts were created along the 
 entire length of the Arkansas river in said State, and proceedings 
 were thereupon had in each of said districts in which the owners 
 of ditches and canals taking water from said Arkansas river and its 
 tributaries were parties, and in which the amount of water to which 
 each ditch or canal was entitled was ascertained and decreed. In 
 said proceedings the owners of 713 ditches and canals were parties, 
 and decrees were entered finding the various amounts of water that 
 had been appropriated from said river and its tributaries, and ap- 
 plied to beneficial uses in the irrigation of said lands in said valley, 
 and the dates of said appropriations. In said adjudications many 
 thousand dollars were expended in costs, attorney fees and other 
 necessary expenses in the belief that by said decrees the right of 
 each appropriator, in the order of his appropriation, to the waters 
 of said river had been established as a perpetual property right. 
 
 5. The State of Kansas and the inhabitants thereof, well knew 
 that, commencing in said State at about the 98th meredian, and 
 thence continuing westward to the Rocky mountains, the land was 
 arid and incapable of being settled upon or cultivated, except by 
 the diversion and use of the waters of the natural streams, and that 
 diversions of the waters of the Arkansas river were being made at 
 the times and in the amounts and for the purpose hereinbefore set 
 forth, and that such diversions were made under a claim of right 
 
THE STATE OF COLORADO ET AL 
 
 9 T 
 
 to the continued use of the waters of said river as against all owners 
 of land in the valley of the Arkansas throughout its entire length, 
 and that the settlement of said valley in the State of Colorado and 
 the expenditure of the amounts hereinbefore stated, and the con- 
 struction of canals, ditches and reservoirs, and in lands, buildings 
 and improvements, and in houses, stores, factories, and public and 
 private buildings, was made in reliance apon the right to divert the 
 waters of said river and to continue such diversion in perpetuity. 
 
 6. Prior to the filing of the bill of complaint herein, neither the 
 State of Kansas, nor the owners of lands in the Arkansas valley in 
 said State, complained of said diversions, nor the right to make or 
 continue the same, nor in any way or manner claimed or alleged 
 any right upon the part of said State, or the owners of land in said 
 valley, to the flow of said river as it had been accustomed to flow 
 prior to the making of said appropriations; but, on the contrarjq 
 the said State approved the diversion of water from said river and 
 affirmed the right to make the same in the reclamation and irriga- 
 tion of the lands along said river, by an act of the legislature of said 
 State, enacted in 1886, authorizing and providing for the like diver- 
 sion and use of the waters of said river in the State of Kansas, and 
 by a further act, enacted in 1891, declaring that in that portion of 
 the State of Kansas west of the 99th meridian all natural waters, 
 whether running or standing, and whether surface or subterranean, 
 should be devoted, first, to the purposes of irrigation in aid of agri- 
 culture; and, second, to other industrial purposes, and that said 
 waters might be diverted from natural beds and channels for such 
 purposes and use, and the owners of land in said valley in said 
 State recognized and approved said appropriations, and the right to 
 continue the same, by themselves constructing about five hundred 
 miles of canals and ditches, and diverting the waters of said river 
 for the irrigation of about one hundred and fifty thousand acres of 
 'land, and claimed the right so to do as against all owners of lands 
 along the course of said river in Kansas or elsewhere. 
 
 7. The said State of Kansas and the owners of land in the valley 
 of the Arkansas, in said State, have at all times acquiesced in the 
 appropriation of the waters of the Arkansas river in the State of 
 Colorado, and have waived, surrendered and relinquished any and 
 all riparian rights now claimed by them, and by their delay in the 
 filing of the complaint herein have caused the several appropriators 
 of water from said river in Colorado to make the expenditures here- 
 inbefore mentioned, and the people in said valley to settle upon, 
 improve and cultivate the lands, and to build towns and cities, 
 and for that purpose to expend the sums hereinbefore mentioned ; 
 and they are now estopped, by their conduct and delay, from assert- 
 ing or maintaining any of the rights claimed in the said bill of com- 
 plaint, and each and every owner of land in said valley in the State 
 of Kansas who might claim rights adverse to the appropriations of 
 water from said river in Colorado, are by the statutes of said State 
 of Kansas barred from asserting such rights as against ditches and 
 
 7—7 
 
98 
 
 THE STATE OF KANSAS VS. 
 
 canals constructed and appropriations made in the State of Colorado 
 fifteen years or more prior to the filing of the bill herein. 
 
 8. Upon information and belief, this defendant avers that the owners 
 of land adjoining said Arkansas river in the State of Kansas west of 
 the 98th meridian have refused to assert or maintain any right to 
 the flow of said river as against the right to divert and appty the 
 same to agricultural and other beneficial uses in the States of Colo- 
 rado and Kansas, and have refused to authorize or encourage this 
 or any other proceeding by the State of Kansas based upon their 
 alleged rights as riparian owners and designed to destroy or impair 
 the right to use the waters of said river for irrigation and other 
 beneficial purposes as now practiced in the State of Colorado and in 
 the State of Kansas west of the 98th meridian. 
 
 9. This defendant, in making the allegations set forth in this its 
 further and separate answer, disclaims any right to represent or act 
 for any of the persons or corporations diverting water from the 
 Arkansas river, but makes such allegations for the purpose of bring- 
 ing to the knowledge of the court the fact that in ascertaining and 
 adjudging the rights of the several persons and corporations divert- 
 ing water in Colorado, it will be necessary to make parties to this 
 proceeding the owners of lands in Kansas in whose behalf, in part, 
 it is claimed this proceeding was instituted. 
 
 V. 
 
 This defendant, for further separate answer to the bill of com- 
 plaint, says : 
 
 1. The Arkansas river leaves the foot hills of the Rocky mount- 
 ains at an elevation of about six thousand feet above sea level, and 
 thence flows eastward over an elevated plateau known as the “ Great 
 plains” for several hundred miles, with a practically uniform de- 
 scent to the east, passing into the State of Kansas at an elevation of 
 3,350 feet into the Territory of Oklahoma at an elevation of 1,000 
 feet. Through Colorado and Kansas it has a broad, level bed of 
 sand, seldom entirely covered with water, the ordinary flow running 
 in thin sheets in tortuous and constantly changing channels in the 
 river bed. From the mountains, for four hundred miles eastward, 
 the water-shed of said river is naturally barren, treeless and without 
 any vegetation, except the short sparse grass common to the Great 
 plains. The annual precipitation of moisture is about fourteen 
 inches, most of which falls in local and violent storms. In its uncul- 
 tivated condition, the land rapidly sheds the rainfall, discharges it 
 into the river and prevents the saturation of the soil and the forma- 
 tion of springs by which said river and the tributaries along its 
 course might be fed. The tributary streams are usually dry, carry- 
 ing and discharging water into the river only in case of storms. 
 The sun is seldom obscured, and commencing near the State line 
 between Colorado and Kansas, and continuing eastward for at least 
 two hundred miles, the winds are dry and constant, in the summer 
 
THE STATE OE COLORADO ET AL. 
 
 99 : 
 
 season becoming so heated as to burn and destroy the vegetation 
 and to absorb such water as may be in the bed of said river. The 
 waters supplied to said river for about four hundred miles of its 
 course after leaving the mountains are irregular in discharge and 
 constantly varying in quantity, and are not sufficient to cause a 
 steady and permanent flow during any season of the year. The 
 main supply of the ordinary flow of that part of the river above de- 
 scribed is from the snows and storms in the mountains. As the 
 snow melts only during warm days, this supply is also irregular and 
 uncertain, and the volume of water in the river, therefore, changes 
 daily and even hourly. Long before irrigation was practiced in 
 Colorado, it was observed that as the waters from the mountains 
 flowed eastward, the volume constantly diminished, and this dimi- 
 nution was the more marked as the river passed beyond the area of 
 local storms caused by the mountains. During the summer season, 
 except when flooded by violent showers, the river, at a distance of 
 from two hundred tofour hundred miles from the mountains, would 
 show no surface water other than occasional pools in the sand, and 
 none of the water coming into said river in Colorado would flow to 
 or across the lands in the central or humid portion of Kansas. The 
 ordinary flow of said river in Kansas has been still further dimin- 
 ished by the destruction of timber on the watershed of said river in 
 the mountains and by the extension westward of the cultivated area 
 of lands in Kansas and by the sinking in western Kansas of up- 
 wards of one thousand wells contiguous to said river, and the pump- 
 ing and use of the waters thus obtained upon the adjoning land. 
 
 2. All of the canals, ditches and reservoirs in Colorado complained 
 of in said bill of complaint have their headgates within one hun- 
 dred and fifty miles of the mountains, and the waters diverted into 
 said canals and ditches are the waters, which, if not so diverted, 
 would be lost by seepage and evaporation long before reaching the 
 lands in Kansas claimed to be injured by such diversion. 
 
 3. The waters of the Arkansas river diverted in Colorado are those 
 which fall within the watershed of said river in said State, and they 
 are diverted and used only upon such lands within said watershed 
 as need the same for domestic and irrigation purposes, and all the 
 said lands upon which said waters are used are lands entitled to the 
 same as the riparian lands of said river. 
 
 4. Bv the practice of irrigation in the valley of the Arkansas in 
 Colorado, the flow of said river in the State of Kansas, outside the 
 flood periods, is increased, instead of diminished. A great part of 
 the land lying between the foothills of the mountains and the State 
 line, and extending several miles back from the river on each side, 
 which, in its natural condition is devoid of moisture, as alleged in 
 the bill of complaint, becomes saturated, irrigation producing a con- 
 dition the same as that produced by abundant rainfall. Water veins 
 and channels are created in the land, springs break out and the water 
 seeking a lower level, continually exudes into the nearest dry chan- 
 nels coursing the country, making them perennial streams discharg- 
 
100 
 
 THE STATK OF KANSAS VS. 
 
 ing water into the river. The storm and flood waters of the river 
 are stored in large quantities and during the irrigating season are 
 added to the water diverted directly from the river and applied to 
 the land, thus serving to convert the flood waters of the river into an 
 additional source of supply for the river during its lowest natural 
 stages. As the irrigated area has moved eastward, the return and 
 seepage waters from the lands irrigated have materially increased 
 the flow of the river and water now flows continuously in said river 
 at many points where, at low stages of the river, it was not accus- 
 tomed to flow prior to the development of irrigation systems in Colo- 
 rado. 
 
 This defendant, now having fully answered all the allegations in 
 the plaintiff’s amended bill of complaint, or so much thereof as the 
 defendant is advised should be answered, asks to be hence dismissed 
 with cost and charges in this behalf sustained. 
 
 N. C. MILLER, 
 
 Attorney General of Colorado and 
 
 Solicitor for Defendant. 
 
 EDWD. 0. WOLCOTT, 
 
 JOEL F. VAILE, 
 
 CHARLES D. HAYT, 
 
 PLATT ROGERS, 
 
 C. W. WATERMAN, 
 
 F. E. GREGG, 
 
 CLYDE C. DAWSON, 
 
 Of Counsel. 
 
 [Endorsed :] Supreme Court U. S., October term, 1903. Term 
 No. 7, original. The State of Kansas, complainant, vs. The State of 
 Colorado et al. Answer of the State of Colorado to the amended 
 bill of complaint. Filed Oct. 14, 1903. 
 
THE STATE OF COLORADO ET AL. 
 
 101 
 
 In the Supreme Court of the United States. 
 
 The State of Kansas, Complainant, 
 vs. 
 
 The State of Colorado et al., Defendants. 
 
 Separate Answer of The Graham Ditch Company, Defendant. 
 
 Charles C. Goodale, solicitor for the Graham Ditch Company. 
 
 In the Supreme Court of the United States 
 
 To the honorable the Chief Justice and the associate justices of the 
 Supreme Court of the United States : 
 
 The answer of The Graham Ditch Company, a corporation organ- 
 ized and existing under the laws of the State of Colorado, and 
 whose post-office address and principal place of business is La- 
 mar, State of Colorado, one of the defendants to the amended 
 bill of complaint of the State of Kansas, complainant. 
 
 This defendant, now and at all times hereafter saving and re- 
 serving unto itself all benefit and advantage of exception which can 
 or may be had or taken to the many errors, uncertainties and other 
 imperfections in the said bill contained, for answer thereunto, or to 
 so much and such parts thereof as this defendant is advised it is 
 material or necessary for it to make answer unto, answering sepa- 
 rately says : 
 
 1. This defendant admits that the State of Kansas and the State 
 of Colorado, respectively, were admitted into the Union at the dates 
 set forth in the amended bill, and that the original bill in this pro- 
 ceeding and the amended bill were and are exhibited and the pro- 
 ceedings in reference thereto have been and are being prosecuted 
 as in the bill alleged, and admits that the rise, course, drainage, 
 area and general physical characteristics of the Arkansas river and 
 of the valley thereof, except as hereinafter set forth, are as stated 
 in the said amended bill of complaint. 
 
 2. This defendant denies that the said Arkansas river, after leav- 
 ing the mountains, is a navigable stream under the laws and de- 
 partmental rules and regulations of the United States. This de- 
 fendant admits that the lands bordering on the Arkansas river and 
 its tributaries in the State of Colorado, as to that part thereof sit- 
 uated within the Rocky mountains and in the foothills at the east- 
 ern base thereof, are of such a character that they are not saturated 
 to an appreciable extent by the waters flowing in said river or its 
 tributaries, but denies that said lands herein mentioned are arid or 
 barren up to the margin of said streams, or at all, but, on the con- 
 trary, alleges that there has in the past been, and to a certain ex- 
 tent now is, a growth of timber and other vegetation thereon, and 
 
 I Original Proceed- 
 ( ing, No. 7. 
 
102 
 
 THE STATE OP KANSAS VS. 
 
 tb is defendant alleges that from the foothills on the eastern base of 
 the said Rocky mountains and thence to the eastern boundary of the 
 State of Colorado, the said lands bordering upon the Arkansas river 
 and its tributaries in the State of Colorado are of like character to 
 the lands in the western one hundred and fifty miles of the State of 
 Kansas, and that the same are of like physical characteristics. 
 
 3. This defendant denies that any diminution of the flow of said 
 river from the State of Colorado into the State of Kansas is wholly 
 or mainly attributable to the diversion of the waters of said stream 
 in the State of Colorado, and denies that there has been any wrong- 
 ful diversion of said waters within the State of Colorado. This de- 
 fendant denies that the normal flow of said river at the State line 
 for ten months in the year, or for any considerable period, is up- 
 wards of two thousand cubic feet per second, and, on the contrary, 
 alleges that in the absence of any irrigation in the State of Colorado, 
 or any diversion of the waters of said stream in said State, the nor- 
 mal flow, exclusive of periods of flood, would not at the said State 
 line exceed five hundred cubic feet per second of time. This defend- 
 ant denies that the tributaries of said river in the State of Kansas are 
 few in number, or that the same do not or could not furnish water 
 sufficient to cause a continuous stream to flow in the bed of said river 
 as to that portion of said stream east of the 99th meridian (west of 
 Greenwich) and this defendant alleges that east of said 99th meridian 
 there are many streams of water tributary to and furnishing a large 
 supply of water to said Arkansas river, and in this connection this 
 defendant alleges that the said Arkansas river, within the State of 
 Kansas, drains an area of more than twenty thousand square miles, 
 and that in the eastern half of the course of said river within said 
 State there is ample rainfall sufficient in itself to create and continue 
 a large stream of water. This defendant admits that the rainfall in 
 the drainage area of said river in the western part of the State of Kan- 
 sas is light and b}' reason of the porous nature of the soil through a 
 considerable portion of the western part of said State, a part of the 
 water so falling sinks into the earth, but this defendant denies that 
 only a small portion thereof finds its way to said river, and on infor- 
 mation and belief alleges that substantially all thereof, by drainage 
 or by seepage, ultimately supplies the flow of water in the channel 
 of said stream. This defendant denies that the ordinary and usual 
 rainfall in that part of the valley of said river lying east of the 98th 
 meridian is inadequate for the growing and maturing of cultivated 
 crops, hut admits that in the western part of the said State of Kansas 
 such rainfall is inadequate for so growing and maturing cultivated 
 crops, and alleges that in the portions of said State so affected the 
 inhabitants thereof have resorted to and are now daily practicing the 
 method of appropriation of water from said Arkansas river, and using 
 the same for the irrigation of lands, in the same manner as in the 
 said bill of complaint is alleged to be done in the State of Colorado. 
 
 4. This defendant denies that from time immemorial, or at all, the 
 waters of said river have flowed through underlying sand and gravel 
 
THE STATK OF COLORADO ET AL. 
 
 103 
 
 extending in width under the entire valley of the Arkansas river 
 through the State of Kansas, or for any material portion thereof, and 
 denies that any part of the course and flow of said river is beneath 
 the surface of the bottom lands of the valley of said river, or that the 
 course or flow thereof is of any greater width than the channel of 
 said river between its banks, or that there is any under-flow of water 
 co-extensive with the valley of said river passing from the State of 
 Colorado into the State of Kansas, or in, or through said State of 
 Kansas. This defendant admits that there are underground waters 
 in the valley of the said Arkansas river outside of and away from 
 the channel of said stream, but on information and belief alleges the 
 same to be the ordinary water table of the country, and that the same 
 does not constitute an under-flow of the said Arkansas river, and this 
 defendant denies that as to such underground waters designated in 
 the complaint as an “ under-flow ” that there is any difference what- 
 soever between the State of Colorado east of the foothills and the 
 said State of Kansas, but alleges that there is a similarity of physical 
 characteristics in that respect in the valley of the Arkansas river 
 both east and west of the boundary line separating said States. This 
 defendant denies that such under-ground water, whether called 
 “ under-flow ” or otherwise, furnishes sufficient moisture to grow 
 ordinary farming crops in the absence of rainfall, unless the same 
 be supplemented by a system of irrigation such as is used in the 
 State of Colorado and in the western part of Kansas. This defend- 
 ant, upon information and belief, denies that the evaporation from 
 said river, to any appreciable extent or material degree, tends to cool 
 or moisten the surrounding atmosphere, or promote the growth of 
 vegetation, or enhance the value of lands, or conduce directly or 
 materially or at all to the public health or the making of the locality 
 habitable. This defendant admits that evaporation from said stream 
 is rapid and great, and that it is greater at the west line of the State 
 of Kansas than it is at points farther east, and in this connection 
 this defendant alleges that such evaporation is yet greater in the 
 State of Colorado between the point where said river leaves the foot- 
 hills and the point where it crosses the boundary between Kansas 
 and Colorado, and this defendant alleges that under the system of 
 irrigation used in the State of Colorado the injury, if any, resulting 
 to the inhabitants of the State of Kansas through the loss of water 
 by evaporation is less than it would be if there were no such irriga- 
 tion system in use within the State of Colorado. 
 
 This defendant admits that in the western half of the State of 
 Kansas are many acres of arid upland and plateau bearing grass 
 upon which cattle may feed, and that the cattle so fed must have 
 watering places, and this defendant alleges that the number of such 
 watering places in western Kansas has not been diminished, but, on 
 the contrary, has been increased by the methods of irrigation used 
 in the State of Colorado, and especially through the effect of return 
 waters in times when otherwise there would be small flow in the 
 channel of said river, as hereinafter more specifically set forth. 
 
104 
 
 THE STATE OF KANSAS VS. 
 
 This defendant admits that if the surface flow of water in the bed of 
 said river should be “ wholly ” cut off from the State of Kansas, that 
 the underground waters under the adjacent bottom lands called in 
 the bill of complaint “ under-flow ” would diminish, but, upon in- 
 formation and belief, this defendant alleges that such diminution 
 would result only because of the increased drainage resulting from 
 such process, but this defendant alleges that the system of irrigation 
 practiced in the State of Colorado has not had the effect, and never 
 can have the effect of wholly or materially cutting off from the State 
 of Kansas a surface flow of water in the bed of said river, and, on 
 the contrary, alleges that said irrigation system equalizes the flow of 
 said river in the channel thereof through the State of Kansas, 
 diminishing the volume of flood water and increasing the supply in 
 periods of comparative drought. 
 
 5. This defendant admits that that part of the bottom lands of the 
 river lying east of the 98th meridian (west of Greenwich) including 
 those adjacent to the bed of said river are fertile and productive and 
 adapted to the growth of crops mentioned in the bill, and that said 
 lands are valuable for grazing, but this defendant denies that in the 
 western part of the State of Kansas said bottom lands are fertile or 
 productive or valuable for farming purposes or adapted to the grow- 
 ing of corn, wheat, alfalfa, rye, domestic grasses, orchards, fruits, 
 vegetables, or like crops, grains or grasses, except by the aid of irriga- 
 tion and by the diversion and appropriation of water from the said 
 Arkansas river, which said diversion and appropriation of water is, 
 under the sanction of the laws of the State of Kansas as hereinafter 
 set forth, practiced by the inhabitants of that portion of the State of 
 Kansas west of the 98th meridian aforesaid. 
 
 6. Whether or not the actual value of the bottom lands in the 
 valley of the Arkansas river in the State of Kansas is the value set 
 up in the bill of complaint, this defendant has not, and cannot ob- 
 tain, sufficient information upon which to base a belief, but this de- 
 fendant denies that the value of said lands is in any degree depend- 
 ent upon the said lands being permitted to receive the benefits aris- 
 ing from the natural and normal flow of water in said river, and de- 
 nies that the acts alleged to have been done by this defendant are 
 wrongful, and this defendant denies that by reason of the alleged 
 wrongs in the said bill of complaint set forth, or otherwise, the value 
 of said lands has shrunk many millions of dollars, or in any sum 
 whatsoever, so far as such value is dependent upon the use of the 
 waters of said Arkansas river, and denies that the said alleged 
 wrongs have resulted in a loss to the citizens of the State of Kansas, 
 or to the taxable wealth, or to the revenue of said State, or to the 
 school system thereof, in any amount or extent whatsoever. 
 
 7. This defendant admits the acquisition by the State of Kansas 
 of sections numbered 16 and 36 of each governmental 4 township, and 
 admits the derivation of title to certain alternate sections of land to 
 aid in the construction of certain railroad and telegraph lines in said 
 State as in the bill of complaint set forth, and that the said lauds 
 
THE STATE OF COLORADO KT AL. 
 
 105 
 
 have been conveyed and are now held by the grantees thereof, and 
 this defendant admits the settlement of certain of the lands in the said 
 State of Kansas in the Arkansas valley from the south line of the 
 State of Kansas to the city of Great Bend, and subsequently the set- 
 tlement of certain lands from Great Bend westward to the State line 
 of the State of Kansas, and that the settlers thereon and their suc- 
 cessors in interest have continuously held and owned all of the ripa- 
 rian and other rights of every kind and nature appertaining to or 
 belonging to said lands, but this defendant alleges that such “ ripa- 
 rian and other rights” so field by said settlers and their successors 
 in interest were at all times and now are subject to the riparian 
 rights of other proprietors of lands in the valley of the Arkansas 
 higher up said stream, and subject also to the right of the inhabit- 
 ants in the valley of said Arkansas river and those who shouldfrom 
 time to time become inhabitants therein to appropriate the waters 
 of said stream and use the same in the irrigation of lands within the 
 valley of the Arkansas river through any portion of its course, as 
 hereinafter more specifically set forth. 
 
 8. This defendant denies that all of the territory of the State of 
 Kansas became a part of the territory of the United States by the 
 treaty with the French Republic of April 30th, 1803, ceding Louisi- 
 ana, and, on the contrary, alleges that all that portion of the said 
 State of Kansas lying west of the 100th meridian (west of Green- 
 wich) and south of the Arkansas river was never derived under said 
 treaty and that said portion of said State never belonged to the 
 French Republic, and in that behalf this defendant alleges that the 
 said portion of said territory, being that portion of Kansas adjoining 
 the State of Colorado, and on the south side of the Arkansas river, 
 was derived by the United States from the Republic of Texas, which 
 in turn succeeded in sovereignty over said territory to the united 
 Mexican States. This defendant again denies that the said Arkan- 
 sas river is now, or at any time has been, a navigable river in the 
 State of Kansas or that it has at any time been treated as such, or 
 that the title to the bed of said river in the State of Kansas ever 
 passed to said State, or that said State is now or ever has been the 
 owner thereof, or entitled to the control thereof, or has ever attempted 
 to control the same, save and except that as a political organization 
 it has sovereignty over the same, or that it has ever assumed to ex- 
 ercise any authority over said river or the bed thereof, except as by 
 an act of the legislature of the State of Kansas passed in 1886, it de- 
 clared that the right to the use of running water flowing in a river 
 or stream of Kansas for the purpose of irrigation might be acquired 
 by appropriation, and by a like act passed in 1891 it declared that 
 in that portion of the State west of the 99th meridian all natural 
 waters standing or running should be devoted — first, to purposes of 
 irrigation in aid of agriculture, subject to ordinary domestic uses; 
 and secondly, to other industrial uses, and that the same might be 
 diverted from the natural beds, basins or channels for such purposes 
 and uses, and by like acts subsequently passed it has enlarged and 
 
106 
 
 THF STATIC OF KANSAS VS. 
 
 extended the right to use the natural waters of said State for irriga- 
 tion purposes, eastward to the 98th meridian. 
 
 9. This defendant has no knowledge of the several conveyances 
 or grants of lands in the valley of the Arkansas river in the State 
 of Kansas heretofore made by the Government of the United States, 
 hut avers that all of the conveyances or grants referred to in said 
 bill of complaint were made subject to all rights to water from 
 said river for irrigation purposes theretofore, and thereafter to be 
 acquired, and were taken witli full knowledge on the part of said 
 State of Kansas and by eacli and every grantee of said lands that 
 the waters of said river had been, were being and would be appro- 
 priated in the State of Colorado for beneficial uses in the irrigation 
 of land, and that the lands in said valley in the State of Kansas west 
 of the 98th meridian and in theState of Colorado could only be made 
 available for agricultural purposes by like appropriation and use, 
 and that the Government of the United States as the primary owner 
 of said lands had assumed that- it held the same subject to the ap- 
 propriation of the waters of said river for irrigation purposes, and 
 that all patents of lands granted after July 9th, 1870, should be sub- 
 ject to all vested and accrued water rights over said river. 
 
 10. As to that certain tract of land described in paragraph 5 of 
 plaintiff’s bill, consisting of lots numbered 3, 5, 6 and 7 of section 3, 
 township 27 south, of range 24 west, in Ford county, Kansas, alleged 
 to be used for the maintenance of a soldiers’ home, this defendant 
 alleges upon information and belief that the said State of Kansas as 
 a proprietor of said lands has not made and does not now make any 
 beneficial use of the waters flowing in the channel of the said Arkan- 
 sas river for the improvement of said lands or the maintenance of 
 said soldiers’ home, and this defendant denies that the value of said 
 lands for farming purposes depends upon the flow of water in the 
 bed of the river or upon the so-called under-flow beneath the said 
 land, and under the circumstances and conditions of the use of said 
 water this defendant denies that the said State of Kansas is entitled 
 to the full, free and natural flow of all waters which naturally would 
 flow in said river to or beneath said land, and denies that the rights 
 of the State of Kansas thereto are prior or superior to the rights or 
 claims of this defendant or of the inhabitants of the State of Colorado, 
 so far as pertains to the waters of the said Arkansas river. 
 
 11. As to those certain lands described in paragraph 6 of the com- 
 plainant’s bill as being in sections 18 and 19, township 23 south, of 
 range 5 west of the sixth principal meridian in Reno county, Kansas, 
 and designated as reformatory lands, this defendant alleges upon 
 information and belief that the said State of Kansas as the propri- 
 etor of said lands has never made any beneficial use of the waters 
 of the Arkansas river flowing by or near said lands, and this defend- 
 ant denies that, under the circumstances and conditions atfecting 
 the said Arkansas river and the waters thereof, the said State of 
 Kansas is entitled to the full and natural flow of the water of 
 the Arkansas river in its accustomed place or at its normal 
 
THE STATE OF COLORADO ET AL 
 
 107 
 
 height or in its natural volume underneath or by the said reforma- 
 tory lands, and denies that the rights of the said State of Kansas are 
 prior or superior to the rights of this defendant or of the inhabitants 
 of the said State of Colorado in the waters of said Arkansas river. 
 
 12. This defendant denies that the legislature of the State of Colo- 
 rado has passed laws authorizing or licensing the diversion of water 
 from said Arkansas river, or has granted to any person, firm or cor- 
 poration the right or authority to make such diversion, but, on the 
 contrary, avers that said legislature has at all times recognized the 
 right to make such diversion as one existing independent of any 
 action by it and as one founded on necessity and on the usages and 
 customs of the arid region of the United States existing prior to the 
 adoption of the constitution of the State of Colorado, and approved 
 and confirmed by the statutes, decisions and rulings of the legisla- 
 tive, judicial and executive departments of the United States, and 
 said legislature has never assumed the power to either grant or 
 restrain the right to divert the waters of the Arkansas river for 
 irrigation or other purposes or to do more with respect to such di- 
 versions than to regulate and to control the same by appropriate 
 legislation. 
 
 And this defendant denies that as a result of the exercise of the 
 rights alleged in the amended bill to be claimed by the State of 
 Colorado all of the waters of the said Arkansas river are forever lost 
 to said stream and are thereby prevented from flowing into and 
 through the State of Kansas, and, on the contrary, alleges that as a 
 result of the irrigation systems in vogue in the State of Colorado and 
 by the storage and return of waters through such irrigation systems, 
 all the surplus of such waters not actually consumed in the supply 
 of vegetation is returned to the said Arkansas river and flows down 
 into and through the State of Kansas, and the flow of the said 
 Arkansas river in the State of Kansas is thereby equalized, the 
 dangers from flood diminished and the supply of water in times of 
 comparative drought increased. 
 
 And this defendant further alleges that the allegation as to the 
 appropriations of water from the Arkansas river stated to be 4,200 
 cubic feet per second from the said river, and from the affluents and 
 tributaries thereof 4,300 cubic feet per second, does not represent the 
 actual diversion of said waters, or the diminution of the volume of 
 water flowing in the channel of said river; that waters returned to 
 the channel of the stream from ditches farthest up the stream are 
 again taken out by ditches lower down on the stream, and that to a 
 large extent the same water is repeatedly used in successive ditches, 
 and this defendant denies that as a result of such appropriations, or 
 otherwise, the total average flow of the said Arkansas river or the 
 total average flow of its affluents and tributaries is taken out, used 
 or absorbed as in the bill of complaint alleged, and denies that any 
 considerable portion of the ordinary flow of said Arkansas river is 
 prevented from passing into the State of Kansas, and, on the com 
 trary, alleges that the major part of the aggregate amount of water 
 
108 
 
 THE STATE OF KANSAS VS. 
 
 derived from the channel of the said Arkansas river in the State of 
 Colorado, by drainage, seepage and return waters, again enters the 
 said stream and the channel thereof and continues to flow into and 
 through the State of Kansas. 
 
 13. This defendant admits that ditch owners are diverting from 
 the natural channel the waters flowing in the bed of the Arkansas 
 river and its tributaries in the State of Colorado, but denies that they 
 are carrying said waters great distances from their natural courses 
 or discharging them upon non-riparian lands in the sense in which 
 the word “ riparian ” is used in the assertion of the complainant’s 
 claims, and this defendant alleges that all of the waters diverted 
 from the channel of the Arkansas river in the State of Colorado 
 are used, and used solely, within the valley of the Arkansas river, 
 and while the same are discharged for agricultural purposes upon 
 arid lands, such lands are valley lands in the drainage of the said 
 Arkansas river, and this defendant alleges that the waters so diverted, 
 after being used upon the lands so lying in the valley of the 
 Arkansas, are returned to said channel, diminished only to such ex- 
 tent as is necessary and inevitable from the use of the same for agri- 
 cultural purposes, and this defendant denies that such waters are 
 wholly lost to such streams, or to the State of Kansas, or to its inhab- 
 itants, or that such diversion is carried to such an extent that no 
 water flows in the bed of said river from the State of Colorado to the 
 State of Kansas during the annual growing season or that the so- 
 called under-flow of water in Kansas is thereby diminished, and, on 
 the contrary, this defendant alleges as heretofore stated that the re- 
 turn waters from such systems of irrigation again enter the channel 
 of the said river, and that the same do flow into the State of Kansas 
 and through the said State, and this defendant denies that by the 
 diversion of water from the said river in the State of Colorado the 
 bottom lands of said river have become or will become injured, 
 ruined or deserted. 
 
 14. This defendant denies that the State of Colorado or the corpo- 
 rations joined with it as defendants in this cause claim or openly 
 assert their right or power to do as they please with all of the waters 
 of the Arkansas river within the borders of Colorado regardless of 
 any rights which the State of Kansas or its citizens may have therein, 
 but this defendant, and, as this defendant is advised, the corporations 
 associated with it as defendants herein, do claim and assert that they 
 have the right and power to apply the water of the Arkansas river 
 within the borders of Colorado to beneficial and necessary uses for 
 the development of the country and the support of the inhabitants 
 thereof upon those lands situated within the valle} 7- and drainageof 
 the Arkansas river, returning the said waters after such use and to 
 the extent of any surplus remaining from such use into the channel 
 of the Arkansas river. 
 
 15. This defendant denies that when the Territory of Kansas was 
 created or the State of Kansas admitted to the Union, the water of 
 said Arkansas river was wholly unappropriated, or that the common 
 
THE STATE OF COLORADO lCT AE. 
 
 109 
 
 law as to riparian rights, as claimed in said amended bill of com- 
 plaint, extended over said valley in the Territory of Kansas, or that 
 the owners of lands along said river were entitled to the unimpeded 
 flow of the water of said river, and, on the contrary, avers that 
 numerous appropriations of said water had been made for irrigation 
 purposes long prior to the creation of said Territory, and many more 
 were made prior to the conveyance by the Government of the 
 United (States of any of the lands lying along or adjacent to said 
 river, and that the necessity and right to divert the water of said 
 river for the reclamation of arid land had long previous to the crea- 
 tion of said Territory been asserted and exercised by the persons in 
 possession of said lands, and said necessity and right were thereafter 
 recognized by the legislature of the Territory of Kansas, and all 
 lands along said river acquired by the State of Kansas or by indi- 
 viduals or corporations within the Territory or State of Kansas were 
 taken and held with full knowledge of the necessity of diverting the 
 water of said river for the purpose of reclaiming and making 
 productive the lands along said river and of the usages and customs 
 there prevailing authorizing the same, and that appropriations had 
 been, were being and would be made in that portion of the valley 
 which is now within the jurisdiction of the State of Colorado, and 
 that to the extent of said appropriations the flow of water of said 
 river might by said usages and customs be lawfully impeded for the 
 purpose of applying the same to beneficial uses within the valley of 
 said Arkansas river. 
 
 16. This defendant denies that by its taking of water from said 
 river in the State of Colorado in the manner alleged in said bill of 
 complaint the State of Kansas, or any of its citizens, or the owners 
 of land along said river in the State of Kansas, have been injured 
 in any degree whatever, or that the fertility of the lands or the use 
 thereof to the fullest extent to which the same is naturally capable 
 of use, have been diminished or impaired, or that the crops, trees or 
 vegetation growing along said river have perished or will perish, or 
 that the wells have become or will become dry, or that the salubrity 
 or healthfulness of said valley or any of the lands adjacent to said 
 river have been or will be impaired. 
 
 And this defendant denies that by reason of the diversion of said 
 waters as in the complaint alleged during the summer season or 
 during the dry portion of the year, the bed of said river in the State 
 of Kansas above the city of Wichita becomes practically or often- 
 times wholly dry, and this defendant alleges that if in said portion 
 of the said State of Kansas the bed of said stream and the natural 
 channel thereof is becoming filled with drifting sand, dirt or debris, 
 and said obstructions are rapidly becoming permanent by growing 
 vegetation, and if at the time of sudden and excessive rainfall in 
 the State of Kansas and of sudden and excessive melting of snows 
 in the State of Colorado the flow of the waters thereof can not flow 
 down the natural channel of said river, so filled as aforesaid, but 
 travel the adjacent bottom lands, washing channels therethrough 
 
110 
 
 THE STATE OF KANSAS VS. 
 
 and depositing dirt and debris thereon and doing great damage to 
 stock pastures, crops grown or improvements situated thereon, and 
 injuring or decreasing the value of said lands, such effects are not 
 attributable in any degree whatsoever to the irrigation system within 
 the State of Colorado, but the same are attributable to and fully ex- 
 plained by other causes not connected with the diversion and appro- 
 priation and use of water for irrigation purposes in the State of 
 Colorado, and this defendant alleges that the evils so alleged to exist 
 are diminished rather than intensified by the existence of said irri- 
 gation systems within the State of Colorado. 
 
 I L 
 
 This defendant for further answer to the bill of complaint, says : 
 
 1. The appropriation of this defendant hereinafter referred to of 
 the waters of the Arkansas river complained of in said bill of com- 
 plaint were made in accordance with and in reliance upon the doc- 
 trine respecting the appropriation of the water of the natural streams 
 for irrigation and other beneficial uses which, by usage and custom 
 prevailed in the arid region of the United States at the time of said 
 appropriations, and which, by the recognition and approval of the 
 United States, has at all times been the law applicable to the public 
 lands in said arid region. 
 
 2. Prior to the acquisition of private title to any of the lands 
 acquired by the General Government from France, Mexico and 
 Texas by purchase, cession and annexation, respectively, comprising 
 all the lands now within the jurisdiction of the United States be- 
 tween the Mississippi river and the Pacific coast, said General Gov- 
 ernment caused said lands to be explored and reported upon for the 
 purpose of ascertaining the natural resources and the physical and 
 climatic characteristics of the various portions thereof, and by said 
 explorations and information obtained from time to time, it became 
 known to the United States and the inhabitants thereof that from 
 about the 97th meridian to the coast range of the Pacific slope, the 
 land was an arid waste without timber or useful vegetation, except 
 in the mountains, and that although the soil was rich and fertile, 
 and great deposits of gold, silver and other valuable minerals existed 
 therein, the soil could not be made productive nor the minerals ex- 
 tracted, nor could the land be inhabited, except by the diversion of 
 water from the natural streams and the application thereof to agri- 
 cultural and mining uses, and that in that portion of said domain 
 which lay south of the Arkansas river, and which had formerly been 
 a part of Mexico, the laws, customs and usages there prevailing au- 
 thorized and sanctioned the diversion and use of water for agricul- 
 tural and other useful purposes in contravention of any right of the 
 riparian owner to have such water continually flow in its natural 
 channel. 
 
 3. With the earliest settlement in said arid region for agricultural 
 and mining purposes, which was long prior to the opening of said 
 
THE STATE OE COLORADO ET AL. 
 
 Ill 
 
 lands to pre-emption and purchase, by necessity, common consent 
 and uniform practice, the doctrine obtained that the waters of all the 
 natural streams flowing through said arid region were subject to 
 diversion and use for agricultural and mining purposes, and that 
 the right to the water thus diverted could be obtained both as 
 against the United States as the owner of the public lands and all 
 grantees of the United States of lands lying along said streams, and 
 that the right of the several appropriators from any given stream 
 should be in the order of diversion and use, the first in time being 
 first in right, and said doctrine has at all times been and now is the 
 customary and statute law of said arid region in respect to the 
 natural streams thereof. 
 
 With knowledge and in recognition of such right and custom of 
 the inhabitants of such arid region to divert waters, and to apply 
 the same to beneficial and necessary uses the United States, in its 
 treaty with Spain of Februar}^ 22nd, 1819, and afterwards in its 
 treaty of January 12th, 1828, with the United Mexican States, ex- 
 pressly stipulated and provided, that the use of the waters of the 
 Arkansas river, and of certain other boundary streams, should be 
 common to the respective inhabitants of both nations, parties to such 
 treaties respectively. 
 
 4. Upon the creation and admission of the several Territories and 
 States of said arid region, including Kansas, both as a Territory and 
 State, they recognized, approved and confirmed, and from thence 
 hitherto have enforced said doctrine, and rights to water by diver- 
 sion from the streams of said arid region have been maintained as 
 against all claims of riparian rights in conflict therewith. 
 
 5. The Government of the United States, long prior to the sale by 
 it of any of the public lands in the Arkansas valley, recognized 
 and approved said doctrine, and applied thej same to said 
 public lands, and renounced and surrendered all riparian rights 
 which it might have asserted in contravention of said doctrine, 
 and from thence hitherto has held and disposed of said lands 
 subject to and in accordance with said doctrine, and has at all 
 times encouraged and promoted the diversion and use of the 
 water of the streams in said arid region for agricultural and mining 
 purposes, and by grants of public money has aided in the construc- 
 tion of canals, ditches and reservoirs and other appliances for the 
 diversion, storage and use of water, in the reclamation and cultiva- 
 tion of the public lands. 
 
 6. By an act of Congress, approved September 4, 1841 , and by sub- 
 sequent acts relating thereto, the public lands, including the lands 
 in said arid region were declared subject to pre-emption and home- 
 stead purchase, and all persons desiring to avail themselves of the 
 provisions of said acts were required to make a settlement upon the 
 land in person and to inhabit and improve the same. It was then, 
 and at all times since has been well known to the General Govern- 
 ment, and particularly to Congress and the executive departments 
 having in charge the administration of said acts, that the provisions 
 
112 
 
 THE STATE OF KANSAS VS. 
 
 thereof in respect to settlement, inhabitancy and improvement could 
 not be complied with in the pre-emption and purchase of arid lands, 
 except by the diversion of the waters of the streams upon the public 
 lands and the application thereof to domestic and irrigation pur- 
 poses in reliance upon the continuance of the right so to do in ac- 
 cordance with said doctrine of appropriation. 
 
 7. By means of the diversion and use' of the waters of said natural 
 streams, many million acres of the public lands in said arid region 
 have been settled upon, inhabited and improved and title thereto 
 obtained from the General Government, in the belief that by its 
 action and conduct in the disposition of its public lands, the United 
 States had accepted and applied to said public lands the doctrine of 
 appropriation as hereinbefore set forth ; and there has been paid 
 to said General Government, on account of said lands so im- 
 proved by the diversion and use of water in accordance with said 
 doctrine, upwards of twenty million dollars, and all of the lands in 
 the valley of the Arkansas in the State of Colorado, save and except 
 certain Indian lands, were settled upon and patents therefor ob- 
 tained by proof of the diversion and use of the waters of said Arkan- 
 sas river in the reclamation and improvement of said lands, said 
 diversions so made being those complained of and sought to be en- 
 joined in and by the bill of complaint herein. 
 
 8. The Territory of Kansas by its legislature, recognized and ap- 
 proved the said doctrine of appropriation, and in pursuance thereof 
 in 1859 authorized the St. Charles Town Company to divert the 
 waters of the South Platte river and Cherry creek, and the Mountain 
 Company to divert the waters of the Platte river, and the El Paso 
 Town Company to divert the waters of the tributaries of the Arkan- 
 sas river heading at Pike’s Peak ; and in 1860 authorized the Capital 
 Hydraulic Company to divert for irrigation purposes all the waters 
 of the South Platte river and Cherry creek. And the State of Kan- 
 sas, by its legislature, has also recognized, approved and adopted 
 said doctrine ; an act of said legislature enacted in 1868, authoriz- 
 ing corporations to construct canals diverting water for irrigation 
 purposes; an act of the legislature enacted in 1886 providing that 
 the running waters of the State might be appropriated for purposes 
 of irrigation ; an act of said legislature enacted in 1891, providing 
 that in all that portion of the State west of the 99th meridian all 
 natural waters, whether standing or running and whether surface 
 or subterranean, should be devoted first, to purposes of irrigation in 
 aid of agriculture, subject to ordinary domestic uses; and, second, 
 to other industral purposes, and might be diverted from natural 
 beds, basins or channels for such purposes and uses ; and another 
 act enacted in 1895 providing for the development of the land west 
 of the 98th meridian by irrigation and regulating the distribution 
 of water in the same manner as in Colorado. Said State by said 
 several acts renouncing and surrendering all rights it may have had 
 in said river or the lands adjacent thereto as riparian owner in con- 
 
THE STATE OF COLORADO ET AL. 113 
 
 travention of the right to divert the waters thereof for irrigation in 
 Kansas or Colorado. 
 
 And in reliance upon the approval and adoption of said doctrine 
 of appropriation by said State of Kansas, about five hundred miles 
 of large canals and ditches have been constructed in Kansas, west 
 of the 97th meridian at a cost approximating two million dollars 
 and thereby the waters of said Arkansas river have been appro- 
 priated and applied to about one hundred and fifty thousand acres 
 of land in the valley of said river, in the State of Kansas. 
 
 9. By the act of Congress approved January 29th, 1861, admitting 
 Kansas into the Union, it was specifically provided that the State 
 should never interfere with the primary disposal of the soil within 
 the same by the United States, or with any regulations Congress 
 might find necessary for securing the title in said soil to bona fide 
 purchasers thereof, and that all laws of the United States not locally 
 inapplicable should have the same force and effect within said State 
 as in other States of the Union. 
 
 10. Following the admission into the Union of the State of Kansas, 
 said doctrine of appropriation was further recognized by Congress 
 as the law applicable to the public lands and the natural streams 
 thereof, including those in the State of Kansas by the following 
 acts : 
 
 An act approved July 26, 1866, by which it was provided that 
 whenever, by priority of possession, rights to the use of water for 
 mining, manufacturing or other purposes, have accrued and are 
 recognized according to local customs, laws and decisions, the owners 
 and possessors shall be maintained and protected in their rights; 
 
 An act approved July 9, 1870, in which it was provided that all 
 patents granted, or pre-emptions or homesteads allowed, should be 
 subject to any vested and acquired water rights or rights to ditches 
 and reservoirs used in connection with such water rights; 
 
 An act approved March 3, 1877, known as “ the desert land 
 act,” which declared that all waters of all lakes, rivers and other 
 sources of supply upon the public land should remain and be held 
 free for the appropriation and use of the public for irrigation, mining 
 and manufacturing purposes, and in and by which it was also pro- 
 vided that by the construction of canals and ditches and the appli- 
 cation of said waters to the irrigation of the public lands, the title 
 to said lands might thereby be obtained from the United States ; 
 
 An act approved March 3, 1891, confirming (he rights of way over 
 the public lands in the arid region for canals and reservoirs for irri- 
 gation purposes; 
 
 An act approved August 18, 1894, providing for the conveyance 
 to the several States in the arid region of such public lands as they 
 might reclaim and irrigate ; 
 
 An act approved June 17, 1902, authorizing and undertaking the 
 construction of canals, ditches and reservoirs in the arid region, in- 
 cluding therein the State of Colorado and the western portion of 
 Kansas, whereby the waters of the public lands might be diverted 
 
114 
 
 THE STATE OE KANSAS VS. 
 
 and used for irrigation purposes, and appropriating for that purpose 
 the proceeds of all moneys received from the sale of public lands in 
 the States of Colorado and Kansas. 
 
 Under and by virtue of said act approved March 3, 1877, which 
 was made applicable to lands in Colorado by an act approved March 
 3, 1891, several thousand acres of land in the Arkansas valley in the 
 State of Colorado, were reclaimed and irrigated, and the diversions 
 of water for said purposes are in part the diversions complained of 
 in the said bill of complaint. 
 
 11. Said doctrine was further recognized by Congress by the ap- 
 propriation, on October 2nd, 1888, of $229,000 for the purpose of in- 
 vestigating the extent to which the arid region of the United States 
 might be redeemed by irrigation and for the segregation of the irri- 
 gable lands in such arid region, and for the selection of sites for 
 reservoirs and other hydraulic works necessary for the storage and 
 utilization of water for irrigation and also by a further appropria- 
 tion made on March 2nd, 1889, of $450,000 for the like purpose, all 
 of which moneys were expended in investigating and selecting reser- 
 voir sites and in running contour lines for the purpose of aiding and 
 assisting those desiring to appropriate the waters of the natural 
 streams and using the same for irrigating purposes. 
 
 12. The provisions of the constitution of the State of Colorado set 
 forth and complained of in the bill of complaint, were adopted in 
 harmony with and in pursuance of the policy of the United States 
 in respect to the diversion and use of water in the irrigation of land, 
 and the same do not conflict with or contravene any act of Congress 
 bearing upon said appropriation and use, but, on the contrary, are 
 intended as a constitutional guaranty that the right to divert water 
 for beneficial purposes as authorized and encouraged by the acts of 
 Congress referred to shall never be denied, and said provisions were 
 accepted and approved by the action of Congress in admitting Col- 
 orado into the Union, and the several acts of the legislature of 
 Colorado, referred to in said bill of complaint, have been enacted 
 for the purpose of protecting and regulating appropriations made in 
 pursuance of the usages and customs prevailing in the arid region 
 and the rights of appropriation as recognized and confirmed by the 
 acts of Congress referred to. 
 
 13. All grants and patents of land in the valley of the Arkansas, 
 in the State of Kansas, were made by the United States, subject to 
 the doctrine of appropriation heretofore set forth, and were accepted 
 by the several grantees thereof with the knowledge that in the sale 
 and disposition of the arid lands of the United States along said 
 Arkansas river west of the 97th meridian, it had been and would be 
 necessary to divert and use the waters of said river in the improve- 
 ment and cultivation thereof, and said grants and patents of lands 
 in the State of Kansas were made subject to the right of all persons 
 desiring the use of the same for agricultural purposes to appropriate 
 the waters of the Arkansas river, either in Kansas or Colorado, to 
 the full extent of said river, and ail patents granted and all pre- 
 
THE ST AT K OE COLORADO ET AL. 
 
 115 
 
 emptions and homesteads allowed of lands in the valley of the 
 Arkansas in the State of Kansas subsequent to July 9th, 1870, includ- 
 ing in particular the lands described in the bill of complaint situ- 
 ated in Ford county, conveyed to said State of Kansas by the 
 United States on the 13th day of June, 1889, and the lands in Reno 
 county described in said bill of complaint conveyed to the said State 
 of Kansas at divers times subsequent to said 9th day of July, 1870, 
 were, by the act of Congress of July 9th, 1870, made subject to all 
 water rights in said river and rights of ditches and reservoirs in 
 connection therewith acquired in accordance with the local customs, 
 laws and decisions of Colorado. 
 
 III. 
 
 This defendant, for further answer to the bill of complaint, says: 
 
 1. Many of the appropriations of the waters of the Arkansas river, 
 in the State of Colorado, complained of in said bill of complaint, were 
 made prior to the creation of the Territory of Colorado, and while 
 said Arkansas valley was a part of the territory of Kansas, and 
 defendant is, therefore, unable to state the times at which said ap- 
 propriations were made or the amount of water thus diverted from 
 said river. 
 
 2. Following the creation of the Territory of Colorado and prior 
 to the year 1865, sixty-eight ditches and canals were constructed, 
 and 615 cubic feet of water per second of time were thereby diverted 
 from said river and its tributaries, and have at all times since been 
 used in the irrigation of land in said Arkansas valley. From and 
 including the year 1865 to the year 1870, 127 additional ditches and 
 canals were constructed, and 458 cubic feet of water per second of 
 time were thereby diverted from said river, and at ail times since 
 have been continuously used in the irrigation of lands in said val- 
 ley. From and including the year 1870 to the year 1880,268 addi- 
 tional ditches and canals were constructed and 945 cubic feet of 
 water per second of time thereby diverted, and at all times since 
 used in the irrigation of land in said valley. From and including 
 the year 1880 to the year 1890, 250 additional ditches and canals 
 were constructed, and 3,859 cubic feet of water per second of time 
 thereby diverted from said river, and at all times since continuously 
 used when obtainable in the irrigation of land in said valley. All 
 of said ditches and canals have been constructed by individuals and 
 corporations, and the water, when obtainable, has been taken from 
 said river and applied to the reclamation and irrigation of about 
 five hundred thousand acres of land in said valley which, before 
 said diversion and use, was arid and incapable of producing crops, 
 all of said lands being in the watershed of and riparian to said 
 river, and none of the waters of said river being diverted and car- 
 ried to lands beyond the watershed of said river. 
 
 3. In the construction of said canals and ditches and the reser- 
 voirs connected therewith, many million dollars have been expended, 
 and in the lands irrigated by means of said ditches and canals, and 
 
116 
 
 THE STATE OF KANSAS VS. 
 
 in the improvements thereon and the machinery used in the culti- 
 vation thereof more than twenty-five million dollars have been in- 
 vested. Numerous towns and villages have grown up in said valley 
 in the State of Colorado, having an aggregate population of more 
 than one hundred thousand, and houses, stores, churches, school 
 houses, factories and public and private buildings for various pur- 
 poses have been constructed for occupation and use, and actually 
 used in connection with the continued settlement and cultivation of 
 the lands in said valley by the use of the waters of said Arkansas 
 river, the amount so invested aggregating many million dollars. 
 
 4. In 1879 and 1881 the legislature of Colorado enacted certain 
 statutes providing for the adjudication of rights to water by appro- 
 priation for agricultural uses from the streams in said State, under 
 and by virtue of which irrigation districts were created along the 
 entire length of the Arkansas river in said State, and proceedings 
 were thereupon had in each of said districts in which the owners of 
 ditches and canals taking water from said Arkansas river and its 
 tributaries were parties, and in which the amount of water to which 
 each ditch or canal was entitled was ascertained and decreed. In 
 said proceedings the owners of 713 ditches and canals were parties, 
 and decrees were entered finding the various amounts of water that 
 had been appropriated from said river and its tributaries, and ap- 
 plied to beneficial uses in the irrigation of said lands in said valley, 
 and the dates of said appropriations. In said adjudications many 
 thousand dollars were expended in costs, attorney fees and other 
 necessary expenses in the belief that by said decrees the right of 
 each appropriator, in the order of his appropriation, to the waters of 
 said river had been established as a perpetual property right. 
 
 5. The State of Kansas and the inhabitants thereof, well knew 
 that, commencing in said State at about the 97th meridian, and 
 thence continuing westward to the Rocky mountains, the land was 
 arid and incapable of being settled upon or cultivated, except by the 
 diversion and use of the waters of the natural streams, and that di- 
 versions of the waters of the Arkansas river were being made at the 
 times and in the amounts and for the purpose hereinbefore set forth, 
 and that such diversions were made under a claim of right to the 
 continued use of the waters of said river as against all owners of 
 land in the valley of the Arkansas throughout its entire length, and 
 that the settlement of said valley in the State of Colorado and the 
 expenditure of the amounts hereinbefore stated, and the construc- 
 tion of canals, ditches and reservoirs, and in lands, buildings and im- 
 provements, and in bouses, stores, factories, and public and private 
 buildings, was made in reliance upon the right to divert the waters 
 of said river and to continue such diversion in perpetuity. 
 
 6. Prior to the filing of the bill of complaint herein, neither the 
 State of Kansas, nor the owners of lands in the Arkansas valley in 
 said State, complained of said diversions, nor the right to make or 
 continue the same, nor in any way or manner claimed or alleged 
 any right upon the part of said State, or the owners ,of land in said 
 
THE STATE OF COLORADO ET AL. 
 
 117 
 
 valley, to the flow of said river as it had been accustomed to flow 
 prior to the making of said appropriations; but, on the contrary, 
 the said State approved the diversion of water from said river and 
 affirmed the right to make the same in the reclamation and irriga- 
 tion of the lands alongsaid river, by an act of the legislature of said 
 State, enacted in 1886, authorizing and providing for the like diver- 
 sion and use of the waters of said river in the State of Kansas, and 
 bv a further act, enacted in 1891, declaring that in that portion of 
 the State of Kansas west of the 99th meridian all natural waters, 
 whether running or standing, and whether surface or subterranean, 
 should be devoted, first, to the purposes of irrigation in aid of agri- 
 culture; and, second, to other industrial purposes, and that said 
 waters might be diverted from natural beds and channels for such 
 purposes and use, and the owners of land in said valley in said State 
 recognized and approved said appropriations, and the right to con- 
 tinue the same, by themselves constructing about five hundred miles 
 of canals and ditches, and diverting the waters of said river for the 
 irrigation of about one hundred and fifty thousand acres of land, and 
 claimed the right so to do as against all owners of lands along the 
 course of said river in Kansas or elsewhere. 
 
 7. The said State of Kansas and the owners of land in the valley of 
 the Arkansas, in said State, have at all times acquiesced in the appro- 
 priation of the waters of the Arkansas river in the State of Colorado, 
 and have waived, surrendered and relinquished any and all riparian 
 rights now claimed by them, and by their delay in the filing of the 
 complaint herein have caused the several appropriators of water 
 from said river in Colorado to make the expenditures hereinbefore 
 mentioned, and the people in said valley to settle upon, ’improve and 
 cultivate the lands, and to build towns and cities, and for that pur- 
 pose to expend the sums hereinbefore mentioned ; and they are now 
 estopped, by their conduct and delay, from asserting or maintaining 
 any of the rights claimed in the said bill of complaint. 
 
 8. Upon information and belief, this defendant avers that the 
 owners of land adjoining said Arkansas river in the State of Kansas 
 west of the 98th meridian have refused to assert or maintain any 
 right to the flow of said river as against the right to divert and 
 apply same to agricultural and other beneficial uses in the States of 
 Colorado and Kansas, and have refused to authorize or encourage 
 this or any other proceeding by the State of Kansas based upon 
 their alleged rights as riparian owners and designed to destroy or 
 impair the right to use the waters of said river for irrigation and 
 other beneficial purposes as now practiced in the State of Colorado 
 and in the State of Kansas west of the 98th meridian. 
 
 9. This defendant, in making the allegations set forth in this fur- 
 ther and separate answer, disclaims any right to represent or act for 
 any other persons or corporations diverting water from the Arkansas 
 river, but makes such allegations for the purpose of bringing to the 
 knowledge of the court the fact that in ascertaining and adjudging 
 the rights of the several persons and corporations diverting water in 
 
118 
 
 THE STATE OF KANSAS VS. 
 
 Colorado, it will be necessary to make parties to this proceeding the 
 owners of lands in Kansas in whose behalf, in part, it is claimed 
 this proceeding was instituted. 
 
 IV. 
 
 This defendant, for further answer to the bill of complaint, says : 
 
 1. The Arkansas river leaves the foot hills of the Rocky moun- 
 tains at an elevation of about six thousand feet above sea level, and 
 thence flows eastward over an elevated plateau known as the “ Great 
 Plains” for several hundred miles, with a practically uniform 
 descent to the east, passing into the State of Kaasas at an 
 elevation of 3,350 feet and into the Territory of Oklahoma 
 at an elevation of 1,000 feet. Through Colorado and Kansas it has 
 a broad, level bed of sand, seldom entirely covered with water, the 
 ordinary flow running in thin sheets in tortuous and constantly 
 changing channels in the river bed. From the mountains, for four 
 hundred miles eastward, the watershed of said river is naturally bar- 
 ren, treeless and without any vegetation, except the short sparse grass 
 common to the Great Plains. The annual precipitation of moisture 
 is about fourteen inches, most of which falls in local and violent 
 storms. In its uncultivated condition, the land rapidly sheds the 
 rainfall, discharges it into the river and prevents the saturation of 
 the soil and the formation of springs by which said river and the 
 tributaries along its course might be fed. The tributary streams are 
 usually dry, carrying and discharging water into the river only in case 
 of storms. The sun is seldom obscured, and commencing near the 
 State line between Colorado and Kansas, and continuing eastward 
 for at least two hundred miles, the winds are dry and constant, in 
 the summer season becoming so heated as to burn and destroy the 
 vegetation and to absorb such water as may be in the bed of said river. 
 The waters supplied to said river for about four hundred miles of 
 its course after leaving the mountains are irregular in discharge and 
 constantly varying in quantity, and are not sufficient to cause a 
 steady and permanent flow during any season of the year. The 
 main supply of the river is from the snows and storms in the 
 mountains. As the snow melts only during warm days, this 
 supply is also irregular and uncertain, and the volume of water 
 in the river, therefore, changes daily and even hourly. Long 
 before irrigation was practiced in Colorado, it was observed that as 
 the waters from the mountains flowed eastward, the volume con- 
 stantly diminished, and this diminution was the more marked as 
 the river passed beyond the area of local storms caused by the mount- 
 ains. During the summer season, except when flooded by violent 
 showers, the river, at a distance of from two hundred to four hun- 
 dred miles from the mountains, would show no surface water other 
 than occasional pools in the sand, and none of the water coming 
 into said river in Colorado would flow to or across the lands in the 
 central or humid portion of Kansas. The ordinary flow of said 
 river in Kansas has been still further diminished by the destruc- 
 
THE STATIC OF COLORADO ET AL. 
 
 119 
 
 tion of timber on the watershed of said river in the montains and by 
 the extension westward of the cultivated area of lands in Kansas 
 and Colorado which arrests the flow of water during rains into said 
 river and increases the absorbing power of said land, and by the 
 sinking in western Kansas of upwards of one thousand wells con- 
 tiguous to said river, and the pumping and use of the waters thus 
 obtained upon the adjoining land. 
 
 2. All of the canals, ditches and reservoirs in Colorado complained 
 of in said bill of complaint have their headgates within one hundred 
 and fifty miles of the mountains, and the waters diverted into said 
 canals and ditches are the waters, which, if not so diverted, would 
 be lost by seepage and evaporation long before reaching the lands 
 in Kansas claimed to be injured by such diversion. 
 
 3. The waters of the Arkansas river diverted in Colorado are those 
 which fall within the watershed of said river in said State, and they 
 are diverted and used only upon such lands within said watershed 
 as need the same for domestic and irrigation purposes, and all the 
 said lands upon which said waters. are used are lands entitled to the 
 same as the riparian lands of said river. 
 
 4. Bv the practice of irrigation in the valley of the Arkansas in 
 Colorado, the flow of said river in the State of Kansas, outside the 
 flood periods, is increased, instead of diminished. A great part of 
 the land lying between the foothills of the mountains and the State 
 line, and extending several miles back from the river on each side, 
 which, in its natural condition is devoid of moisture, as alleged in 
 the bill of complaint, becomes saturated, irrigation producing a con- 
 dition the same as that produced by abundant rainfall. Water veins 
 and channels are created in the land, springs break out and the water 
 seeking a lower level, continually exudes into the nearest dry chan- 
 nels coursing the country, making them perennial streams discharg- 
 ing water into the river. The storm and flood waters of the river 
 are stored in large quantities and during the irrigating season are 
 added to the water diverted directly from the river and applied to 
 the land, thus serving to convert the flood waters of the river into 
 an additional source of supply for the river during its lowest natural 
 stages. As the irrigated area has moved eastward, the return and 
 seepage waters from the lands irrigated have materially increased 
 the flow of the river and water now flows continuously in said river 
 at many points where, at low stages of the river, it was not accus- 
 tomed to flow prior to the development of irrigation systems in Colo- 
 rado, and at many points water is flowing in said river in greater 
 abundance than it was accustomed to flow prior to the introduction 
 of irrigation. 
 
 V. 
 
 This defendant, for further answer to the bill of complaint, says: 
 
 1. That it is a corporation organized under the laws of the State 
 of Colorado, on or about the 12th day of September, A. D. 1889, by 
 Martin Graham, James Graham and Walter Meagher, citizens of the 
 
120 
 
 THIS STATE OF KANSAS VS. 
 
 State of Colorado, for the purpose of constructing and operating an 
 irrigating ditch to convey water for domestic use and irrigation pur- 
 poses, upon certain riparian lands owned by the said Martin Graham 
 and James Graham and on certain riparian lands leased by said 
 James Graham and Martin Graham, owned by the State of Colorado. 
 Said lands are situated in the county of Prowers, and State of Colo- 
 rado. 
 
 2. That this defendant constructed a certain irrigating ditch, com- 
 mencing work thereon on the 2nd day of October, A. D. 1889, which 
 was completed in the month of November, A. D. 1889, and is known 
 as the “ Graham ditch,” at a cost of ten thousand ($10,000.00) dol- 
 lars. Said ditch begins on the south bank of the Arkansas river in 
 the southeast quarter of section 25 (25), township twenty-two (22), 
 south of range forty-five (45), west of the sixth (6th) P. M., running 
 thence in a southeasterly direction to a point near the northeast 
 corner of the southeast quarter, of section thirty-two (32), township 
 twenty-two (22), south of range forty-four (44), west of the sixth (6th) 
 P. M., thence south to the south line of said township, thence east 
 along said south township line to the southeast corner of said town- 
 ship, thence north about one hundred and fifty (150) rods along the 
 east line of said township to the said Arkansas river ; said irrigating 
 ditch being about seven (7) miles in length and having a carrying 
 capacity of sixty-one (61) cubic feet per second of time. 
 
 3. Said ditch was built to supply water for irrigation and domestic 
 purposes to the following described lands, to wit: 
 
 Southwest quarter southwest quarter section twenty-seven (27), 
 south half southwest quarter, section twenty-eight (28), south half 
 section twenty-nine (29), southeast quarter and south half south west 
 quarter section thirty (30), north half of northwest quarter and north 
 half northeast quarter section thirty-one (31), north half northwest 
 quarter, north half northeast quarter and southeast quarter north- 
 east quarter section thirty -two (32), all of section thirty-three (33), 
 all of section thirt}^-four (34), all of section thirty-five (35) and south 
 half section thirty-six (36), all in township twenty-two (22), south of 
 range forty-four, west of the sixth (6th) P. M., comprising thirty-two 
 hundred eighty (3280) acres of land. That water has been used for 
 irrigation and domestic purposes on thirty-two hundred forty (3240) 
 acres of said land since the year A. D. 1889, requiring the full carry- 
 ing capacity of said ditch of sixty-one (61) cubic feet per second of 
 time to supply the same. That under the provisions of the laws of 
 the State of Colorado, on or about the 1st day of July, A. D. 1895, 
 in the district court of the third judicial district of the State of 
 Colorado, in a cause entitled: “In the matter of the adjudication of 
 priorities to the use of water for irrigation and domestic purposes in 
 water district No. 57 of the State of Colorado,” a decree was rendered 
 adjudicating to this defendant a priority to the use of water for irri- 
 gation and domestic purposes, of sixty-one (61) cubic feet of water 
 per second of time of date prior to August 25th, A. D. 1891. 
 
 4. That prior to and since the year A. D. 1889 the said James 
 
THE STATE OP COLORADO ET AL. 
 
 121 
 
 Graham by mesne conveyances acquired title in fee to two thousand 
 six hundred and eighty (2,680) acres of the said described riparian 
 lands, and all rights thereto appertaining, beingall of said lands ex- 
 cept the said south half southwest quarter and southwest quarter 
 southeast quarter section twenty-nine (29), south half southwest 
 quarter, west half southeast quarter and southeast quarter of south- 
 east quarter section thirty (30), north half northwest quarter, north 
 half northeast quarter, section thirty-one (3 L ), north half northwest 
 quarter and northwest quarter northeast quarter section thirty-two 
 (32), all in township twenty-two (22), south of range forty-four (44) 
 west of sixth (6th) P. M., comprising six hundred (600) acres. That 
 the six hundred (600) acres are owned by the State of Colorado, but 
 that the same were leased by the said James Graham from the State 
 of Colorado and had been leased by him even since the construction 
 of said ditch and fora long time prior thereto up to the time of his 
 death hereinafter referred to. 
 
 That the said James Graham became and was the sole owner in 
 fee simple and lessee of the State lands described herein, as afore- 
 said, and of the said “Graham ditch, ” and became the sole owner 
 and was the sole owner of the capital stock of this defendant at the 
 time of his death which occurred on or about the 26th day of March, 
 A. D. 1899. That said riparian lands, and all rights thereto apper- 
 taining, the “ Graham ditch ” and capital stock of this defendant is 
 now owned and said State lands are now leased by the estate of the 
 said James Graham deceased, which is still unsettled and is being 
 administered upon as provided by the laws of the State of Colorado. 
 
 5. That said lands are bottom lands adjacent to the bed of said 
 Arkansas river, a small portion of them occupying a part of the bed 
 of the river ; that they are fertile and productive, valuable for farm- 
 ing purposes and well adapted to the growing of corn, wheat, alfalfa, 
 rye, domestic and wild grasses, orchards, fruits, vegetables and all 
 like crops grown and usually grown in this latitude of the United 
 States and that several hundred acres of alfalfa are now growing 
 upon said lands by reason of irrigation from the said “Graham 
 ditch.” That the two thousand six hundred and eighty (2,680) acres 
 of land owned in fee by the estate of James Graham as aforesaid, 
 reclaimed from its arid state by means of irrigation from the said 
 Graham ditch, constructed and operated as aforesaid by this defend- 
 ant, is reasonably worth the sum of forty ($40.00) dollars per acre, 
 or the total sum of one hundred seven thousand two hundred 
 ($107,200.00) dollars. That the improvements thereon are reason- 
 ably worth the sum of ten thousand ($10,000.00) dollars, making a 
 total valuation of one hundred seventeen thousand two hundred 
 ($117,200.00) dollars. That if this defendant is deprived of its right 
 of priority to the use of water ot sixty -one (61) cubic feet per second of 
 the time adjudged to it, as aforesaid, that said lands will become 
 unfit, for cultivation and only valuable for grazing and will return 
 to their former arid state, and that the estate of James Graham, de- 
 ceased, owner of said lands and of the capital stock of this defend- 
 
122 
 
 THE STATE OF KANSAS VS. 
 
 ant, and of the “Graham ditch ” as aforesaid, will be damaged in 
 the sum of at least one hundred thousand ($100,000.00) dollars. 
 
 By reason of the foregoing this defendant has a prior and superio- 
 right to sixty-one (61) cubic feet of water per second of time for irrir 
 gation and domestic purposes upon said described lands by reason 
 of said appropriation and decree of said district court and that the 
 rights of this defendant to said sixty-one (61) cubic feet of water are 
 prior and superior to any rights or claim of plaintiff or those whom 
 it claims to represent. 
 
 VI. 
 
 This defendant, for further answer to the bill of complaint, says: 
 
 1. That while defendant avers and alleges that it is entitled to a 
 priority to the use of sixty-one (61) cubic feet of water per second of 
 time by reason of appropriation and of the decree of the district 
 court, as aforesaid, as against plaintiff and all others, as an additional 
 and further defense it alleges that it is entitled and has the right 
 to the use of said sixty-one (61) cubic feet of water per second of time 
 as a prior riparian right as against plaintiff and those whom it rep- 
 resents, for the reason that the natural rainfall in the vicinity of said 
 tract of land is slight and insufficient for the growing and maturing 
 of crops, fruits and vegetables and that the value of the above de- 
 scribed lands for farming purposes depend entirely upon their being 
 irrigated. That said lands occupy a part of and are adjacent to the 
 bed of the said Arkansas river and have a frontage upon the Arkansas 
 river upon the south side of seven (7) miles, and are riparian lands. 
 That it is absolute!}' necessary and said lands reasonably require the 
 use of said sixty -one (61) cubic feet of water per second of time to 
 properly irrigate them so that crops, fruits and vegetables can be 
 raised thereon. That said sixty-one (61) cubic feet of water per 
 second of time used upon said lands for irrigation and domestic 
 purposes does not exhaust the entire flow of the stream of water in 
 the Arkansas river, and what is not necessarily consumed for irri- 
 gation and domestic purposes upon said described lands is returned 
 by defendant to the said Arkansas river before it leaves the lands 
 owned by the estate of the said James Graham, deceased. 
 
 2. That neither plaintiff nor any of the owners of riparian lands 
 within the State of Kansas upon the said Arkansas river ever made 
 any protest or objection to this defendant’s building and operating 
 said irrigating ditch, or to its appropriating and using said sixty- 
 one (61) cubic feet of water per second of time upon said described 
 riparian lands for irrigation and domestic purposes, although plain- 
 tiff and said owners of riparian lands well knew that this defendant 
 was expending large sums of money in building and operating said 
 irrigating ditch, in reclaiming said described arid lands and was 
 using said sixty-one (61) cubic feet of water for irrigation and do- 
 mestic purposes as aforesaid. That by reason of said laches plaintiff 
 and said owners of riparian lands are estopped from asserting any 
 claim or right against this defendant’s using said sixtv-one (61) cubic 
 
THE STATE OF COLORADO ET AL. 
 
 123 
 
 feet of water per second of time for irrigation and domestic purposes 
 upon said described lands. 
 
 3. That this defendant’s said described riparian lands are situated 
 on the Arkansas river, higher up and above the lands owned by 
 plaintiff and the other owners of riparian lands upon the Arkansas 
 river in the State of Kansas, to which plaintiff refers in its bill of 
 complaint. 
 
 By reason of the foregoing, this defendant has a prior and superior 
 riparian right to the use of said sixty-one (61) cubic feet of water per 
 second of time for irrigation and domestic purposes upon said de- 
 scribed lands, prior and superior to any right or claim of plaintiff, 
 or any other persons whatsover. 
 
 Wherefore, this defendant now having fully answered all the alle- 
 gations in the plaintiff’s bill of complaint, or so much thereof as the 
 defendant is ad vised should be answered, asks to be herein dismissed 
 with costs and charges in this behalf sustained. 
 
 CHARLES C. GOODALE, 
 
 Solicitor for the Defendant, The Graham Ditch Company. 
 
 [Endorsed :] Supreme Court U. S., October term, 1903. Term No. 
 7, original. The State of Kansas, complainant, vs. The State of Colo- 
 rado et al. Answer of the Graham Ditch Company to the amended 
 bill of complaint. Filed Oct. 14, 1903. 
 
 And afterwards, to wit, on the 2d day of November, A. D. 1903, 
 and appearance for certain defendants was filed in the words and 
 figures following, viz : 
 
 Order for Appearance. 
 
 Supreme Court of the United States, October Term, 1901. 
 
 State of Kansas, Complainant, ) 
 
 vs. 
 
 State of Colorado, The Rocky Ford Canal, 
 Reservoir, Loan & Trust Co., The Catlin Con- 
 solidated Canal Co., The Oxford Farmers’ Ditch 
 Co., The Lake Canal Co., et al. 
 
 > No. 7, Orig’l. 
 
 The clerk will enter my appearance as counsel for the Rocky Ford 
 Canal, Reservoir, Land, Loan and Trust Co., The Catlin Consolidated 
 Canal Co., The Oxford Farmers’ Ditch Co. and The Lake Canal 
 Company. 
 
 (Name.) FRED A. SABIN, 
 
 (P. 0. Address.) La Junta, Colo. 
 
 j|@“Note. — M ust be signed by a member of the bar of the Su- 
 preme Court United States. Individual and not firm names must 
 be signed. 
 
 [Endorsed :] Supreme Court U. S., October term, 1903. Term No. 
 7, orig’l. Appearance for certain def’ts. Filed Nov. 2, 1903. 
 
124 
 
 THE STATE OF KANSAS VS. 
 
 And afterwards, to wit, on the 2d day of November, A. D. 1903, 
 the following orders appear of record, viz : 
 
 In the Supreme Court of the United States, October Term, 1903. 
 
 State of Kansas, Complainant, | 
 
 vs. >No. 7, Original. 
 
 State of Colorado et al. ) 
 
 On motion of Mr. Platt Rogers, of counsel, leave is hereby granted 
 to file the answer of the Arkansas Valley Sugar Beet and Irrigated 
 Land Company to the amended bill of complaint herein. 
 
 November 2, 1903. 
 
 In the Supreme Court of the United States, October Term, 1903. 
 
 The State of Kansas, Complainant, J 
 
 vs. V No. 7, Original. 
 
 The State of Colorado et al. | 
 
 On motion of Mr. A. B. Browne, in behalf of counsel, leave is 
 hereby granted to file the answer of the Fort Lyon Canal Company 
 to the amended bill of complaint herein. 
 
 November 2, 1903. 
 
 In the Supreme Court of the United States, October Term, 1903. 
 
 The State of Kansas, Complainant, 1 
 
 vs. >No. 7, Original. 
 
 The State of Colorado et al. | 
 
 On motion of Mr. Fred A. Sabin, of counsel, leave is hereby 
 granted to file the answer of the Rocky Ford Canal Reservoir, Land, 
 Loan & Trust Company, the Catlin Consolidated Canal Company, the 
 Oxford Farmers’ Ditch Company and the Laguna Canal Company 
 to the amended bill of complaint herein. 
 
 November 2, 1903. 
 
 And on the same day, to wit, on the 2d day of November, A. D. 
 1903, answers were filed in the words and figures following, viz : 
 
THE STATE OF COLORADO ET AL. 
 
 125 
 
 In the Supreme Court of the United States. 
 
 The State of Kansas, Complainant, 
 vs. 
 
 The State of Colorado, The Arkansas 
 Valley Sugar Beet and Irrigated Land | 
 Company, et al., Defendants. J 
 
 Original Proceeding 
 No. 7. 
 
 Separate Answer of The Arkansas Valley Sugar Beet and Irrigated 
 Land Company, One of the Defendants, to the Amended Bill of 
 Complaint of the State of Kansas. 
 
 Platt Rogers, John F. Shafroth, Frank E. Gregg, Thomas H. De* 
 vine, Henry A. Dubbs, solicitors of the Arkansas Valley Sugar Beet 
 and Irrigated Land Company. 
 
 In the Supreme Court of the United States. 
 
 The State of Kansas, Complainant, ^ 
 
 vs. | Original Proceeding 
 
 The State of Colorado, The Arkansas y No. 7, October 
 
 Valley Sugar Beet and Irrigated Land j Term, 1903. 
 
 Company, et al., Defendants. J 
 
 Separate Answer of The Arkansas Valley Sugar Beet and Irrigated 
 
 Land Company, One of the DefEndants, to the Amended Bill of 
 
 Complaint of The State of Kansas, Complainant. 
 
 I. 
 
 This defendant, now and at all times hereafter saving to itself all 
 and all manner of benefit or advantage of exception or otherwise 
 that can or may be had or taken to the many errors, uncertainties 
 and imperfections in the said bill contained, for answer thereto, or 
 to so much thereof as this defendant is advised it is material or nec- 
 essary for it to make answer to, answering, saith : 
 
 1. This defendant admits that the rise, course, drainage area and 
 general physical characteristics of the Arkansas river and of the valley 
 thereof, except as hereinafter set forth, are as stated in said amended 
 bill of complaint. 
 
 2. This defendant denies that the said Arkansas river, in fact, or 
 within the laws or departmental rules and regulations of the United 
 States, a navigable stream either within the State of Colorado or the 
 State of Kansas. 
 
 3. This defendant denies that any diminution of the flow of said 
 river from the State of Colorado into the State of Kansas is wholly 
 or mainly attributable to the diversion of the waters of said river in 
 the State of Colorado ; and denies that the normal flow of said river 
 
126 
 
 THE STATE OE KANSAS VS. 
 
 at the State line, in the absence of irrigation, for ten months, or for 
 any considerable period daring the year, is upward of two thousand 
 cubic feet per second, or any amount in excess of five hundred cubic 
 feet per second. 
 
 4. This defendant admits that the ordinary and usual rainfall in 
 the valley of said river west of the 98th meridian is inadequate for 
 the growing and maturing of cultivated crops; and alleges that in 
 that portion of the State of Kansas, the inhabitants thereof have re- 
 sorted to and are now practicing the method of appropriating the 
 water from said river and using the same for the irrigation of lands 
 that for more than forty years has been practiced in the State of 
 Colorado. 
 
 5. This defendant denies that from time immemorial, or at all, the 
 waters of said river have flowed through underlying sand and gravel 
 extending in width under the entire valley of the Arkansas river or 
 anv material portion thereof ; and denies that any part of the course 
 and flow of said river is beneath the surface of the bottom lands of 
 the valley, or that the course or flow thereof is of any greater width 
 than the channel of said river between its banks, or that there is any 
 underflow of water co-extensive with the valley of said river passing 
 from the State of Colorado into the State of Kansas or in or through 
 said State of Kansas; and this defendant denies that the alleged 
 underground waters of said river furnish sufficient moisture to grow 
 ordinary farming crops in the absence of rainfall, unless supple- 
 mented by water applied by a system of irrigation such as is in use 
 in Colorado and in the western part of Kansas. 
 
 6. This defendant denies that the flow of the river or the under- 
 ground waters to any appreciable extent tends to cool or moisten the 
 surrounding atmosphere, promote the growth of vegetation, enhance 
 the value of lands or conduce directly or materially to the public 
 health or the habitability of the valley; and alleges that such re- 
 sults throughout the arid and semi-arid portions of Kansas can 
 only be produced by the diversion of water from the river and the 
 application of the same bv a system of irrigation to the adjoining 
 lands, and the cultivation thereof. 
 
 7. This defendant denies that the value of the lands in the valle} 7 
 of the Arkansas in said State of Kansas is in ai^ degree dependent 
 upon the natural and normal flow of water in said river; and 
 denies that the acts alleged to have been done by this defendant are 
 wrongful; and denies that by reason of said alleged wrongs, or 
 otherwise, the value of lands in the valley of the Arkansas river in 
 the State of Kansas has been diminished in any sum whatever, or 
 that the revenue of the State of Kansas arising therefrom has been 
 or will be in any wise injuriously affected. 
 
 8. This defendant admits the acquisition by the State of Kansas 
 of the lands mentioned in said bill of complaint and the conveyance 
 of certain portions thereof to the grantees mentioned therein ; and 
 alleges that all of said lands so acquired by said State of Kansas 
 and held by its grantees, as well as all lands acquired by settlers by 
 
THE STATB Of COLORADO EL AL. 
 
 127 
 
 homestead, pre-emption or purchase, were at all times, and now are, 
 subject to the riparian rights of other proprietors of lands in the 
 valley of the Arkansas higher up said stream and to the right of 
 other proprietors of land in said valley to appropriate the waters of 
 said river and use the same in the irrigation thereof both in Colo- 
 rado and western Kansas. 
 
 9. This defendant denies that the Arkansas river is now, or at any 
 time has been, a navigable river in the State of Kansas or treated 
 as such, or that the title to the bed of said river in the State of Kan- 
 sas ever passed to said State, or that said State now is or ever has 
 been the owner thereof or entitled to the control thereof, or has ever 
 attempted to control the same save and except as by an act of the 
 legislature of the State of Kansas, passed in 1886, it declared that 
 the right to the use of running water flowing in a river or stream of 
 Kansas, for the purposes of irrigation, might be acquired by appro- 
 priation ; and by a like act, passed in 1891, declared that in that por- 
 tion of the State west of the 99th meridian, all natural waters, stand- 
 ing or running, should be devoted first to purposes of irrigation in 
 aid of agriculture, subject to ordinary domestic uses; and secondly, 
 toother industrial uses, and that the same might be diverted from 
 the natural beds, basins or channels for such purposes and uses; 
 and as, by a like act subsequently passed, it enlarged and extended 
 the right to use the natural waters of said State for irrigation pur- 
 poses eastward to the 98th meridian. 
 
 10. This defendant, has no knowledge of the several conveyances 
 or grants of land in the valley of said river in the State of Kansas 
 heretofore made by the Government of the United States, except as 
 hereinafter set forth, and avers that all of the conveyances or grants 
 referred to in said bill of complaint, including in particular the 
 lands alleged to be owned by said State of Kansas, were made sub- 
 ject to all rights to water from said river for irrigation purposes 
 theretofore and thereafter to be acquired, and were taken with full 
 knowledge on the part of said State of Kansas, and by each and 
 every grantee of said lands, that the waters of said river had been, 
 were being and would be appropriated in the State of Colorado for 
 beneficial uses in the irrigation of land, and that the lands in said 
 valle} T in the State of Kansas west of the 98th meridian and in the 
 State of Colorado could only be made available for agricultural 
 purposes by like appropriation and use, and that the Government 
 of the United States, as the primary owner of said lands, had as- 
 sumed that it held the same subject to the appropriation of the 
 waters of said river for irrigation purposes, and that all patents of 
 land granted after July 9th, 1870, should be subject to all vested 
 and acquired water rights in or over said river. 
 
 11. This defendant denies that the lands alleged in said bill of 
 complaint to belong to the State of Kansas and situated in the 
 counties of Ford and Reno depend for their value for farming pur- 
 poses upon the flow of water in the bed of said river or upon the 
 underflow beneath said land, or that they are entitled to the full, 
 
128 
 
 THE STATE OF KANSAS VS. 
 
 free and natural flow of said waters which would naturally flow in 
 said river to or beneath said land ; and denies that the rights of 
 the State of Kansas as the owner thereof are prior or superior to 
 the rights of this defendant or of the lands irrigated by its several 
 ditches and canals as hereinafter more particularly set forth. 
 
 12. This defendant denies that the diversion of the waters of the 
 Arkansas river by this defendant and the use thereof in the irriga- 
 tion of the lands lying under its several ditches and canals in any 
 degree whatever diminishes the ordinary and usual flow of water 
 in said State of Kansas, and on the contrary alleges that as a result 
 of irrigation in the valley of the Arkansas in the State of Colorado, 
 the lands irrigated act as reservoirs for the storage of the ordinary 
 and usual flow of said river and of the flood and storm waters 
 thereof, returning the waters not used by plant life or lost by evap- 
 oration to the bed of the river by the natural and ordinary process 
 common to lands having abundant rainfall, and the average flow of 
 water into said State of Kansas, outside of flood and storm periods, 
 is thereb}' increased instead of diminished. 
 
 13. This defendant denies that it is carrying any of the waters of 
 said river through its ditches or canals to lands not riparian to said 
 river in the sense given to the word “ riparian” in the bill of com- 
 plaint, and alleges that all the lands under its said ditches and 
 canals are within the water shed of said river. 
 
 14. This defendant denies that when the Territory of Kansas was 
 created or the State of Kansas admitted to the .Union, the water of 
 said Arkansas river was wholly unappropriated, or that the common 
 law and the riparian rights claimed in said bill of complaint ex- 
 tended over said valley in the State of Kansas, or that the owners of 
 lands along said river were entitled to the unimpeded flow of the 
 water of said river; but on the contrary avers that numerous appro- 
 priations of said water had been made for irrigation purposes long 
 prior to the creation of said Territory and many more were made 
 prior to the conveyance by the Government of the United States of 
 any of the lands lying along or adjacent to said river, and that the 
 necessity and right to divert the water of said river for the reclama- 
 tion of arid land had, long previous to the creation of said Territory, 
 been asserted and exercised by persons in possession of said lands, 
 and said necessity and right were thereafter recognized by the legis- 
 lature of the Territory of Kansas, and all lands along said river ac- 
 quired by the State of Kansas, or by individuals or corporations 
 within the Territory or State of Kansas, were taken and held with 
 full knowledge of the climatic conditions which made necessary the 
 diversion of the waters of said river west of the 98th meridian, and 
 that appropriations had been, were being and would be made west 
 of the 98th meridian within the States of Kansas and Colorado, and 
 that to the extent of said appro):) nations the flow of water of said river 
 might, by the laws, usages and customs then prevailing, be lawfully 
 impeded. 
 
 15. This defendant denies that by its taking of water from said 
 
THE STATE OF COLORADO ET AL. 
 
 129 
 
 river in the State of Colorado through its canals and ditches, and the 
 use thereof in the irrigation of lands lying thereunder, the State of 
 Kansas, or any of its citizens, or the owners of land along said river 
 in the State of Kansas, have been injured in any degree whatever, or 
 that the fertility of the lands or the use thereof to the fullest extent 
 to which the same are naturally capable of use, have been dimin- 
 ished or impaired, or that the crops, trees and vegetation growing 
 along said river have perished or will perish, or that the wells have 
 become or will become dry, or that the salubrity or healthfulness of 
 said valley, or of the lands adjacent to said river, have been or will 
 be impaired. 
 
 II. 
 
 This defendant, for further answer and defense to said amended 
 bill of complaint, says: 
 
 1. In the year 1882, the Arkansas Valley Land and Cattle Com- 
 pany, a corporation, became the owner in fee simple of a tract of land 
 containing about eleven thousand, four hundred and fifty-five acres, 
 lying along and including the north bank of the Arkansas river and 
 in part including the bed thereof, commencing at the line between 
 the States of Colorado and Kansas and ending at Big Sandy Creek, 
 a distance following said river of about twenty-six miles, and extend- 
 ing north from said river from one-half mile to three miles, said tract 
 of land extending continuously through townships 41, 42, 43, 44 and 
 45 west of the sixth principal meridian. 
 
 2. Said tract of land, in its natural condition, was barren and un- 
 productive, the ordinary rainfall being insufficient to make crops or 
 to render the land available for agricultural purposes. 
 
 3. Between the 29th of September, 1884, and the 1st of May, 1885, 
 said The Arkansas Valley Land and Cattle Company constructed a 
 canal then called and ever since known as the Buffalo canal, of a 
 carrying capacity of about 100 cubic feet of water per second, begin- 
 ning at a point on the north bank of the Arkansas river in the north- 
 west quarter of the northwest quarter (N. W. N. W.) of section thirty- 
 one (31), township twenty-two (22), south range forty-three (43) west, 
 and running thence east and south of east to the State line, a dis- 
 tance of about eighteen miles; said canal being so constructed as to 
 cover the tract of land above described and to furnish water from 
 the Arkansas river for use upon the same in the watering of cattle, 
 the irrigation of the soil, the raising of crops and other domestic 
 uses; and from the time of the construction of said canal until the 
 bringing of this action the waters of said Arkansas river have been 
 diverted through said canal and used upon said tract of land for 
 the purposes above mentioned. 
 
 4. At the point of termination of said Buffalo canal near the State 
 line, which is about one and one-half miles north of the north bank 
 of the Arkansas river, certain citizens and residents of the State of 
 Kansas, after the completion of said Buffalo canal, continued said 
 canal into the State of Kansas a distance of six miles for the pur- 
 
 9—7 
 
130 
 
 THE STATE OF KANSAS VS. 
 
 pose of conveying such portion of the waters carried in said canal 
 as were not used in the State of Colorado to the following described 
 riparian and nonriparian lands in the State of Kansas, to-wit : the 
 south half of the south half of the north half (S. \ S. J N. J) and the 
 north half of the south half (N. J S. \) of section twenty-two (22), the 
 north half of the south half (N. J S. |) of section twenty-three ^23), 
 the south half (S. J) of section twenty-four (24) and that part of the 
 northeast quarter (N. E. J) of section twenty-five (25) lying north of 
 the Arkansas river, all in township twentythree (23), south range 
 forty-three (43) west ; the south half of the north half (S. J N. |) and 
 the south half (S. |) of section twenty (20), the southwest quarter 
 (S. W. J) of section twenty-one (21), the north half (N. J) and a por- 
 tion of the southwest quarter (S. W. J) of section twenty-eight (28) 
 lying north of said Arkansas river; all of section twenty-nine (29), 
 the north half (N. J) and the northeast quarter of the southeast 
 quarter (N. E. \ S. E. J) of section thirty (30), all in township twenty- 
 three (23), south range forty-two (42) west ; and from thence at all 
 times hitherto the waters of said canal have been used in the irriga- 
 tion and cultivation of said lands, said ditch so constructed and 
 used being called and known as the Frontier or Pioneer ditch ; said 
 lands so irrigated thereby being, at the time of this action and still, 
 owned by Harry Crittenden, T. B. Martin, Frank Crittenden, Wil- 
 liam Snavely, John Tomilson, Charles Woolman, Fred Pomeroy, 
 John Schranstrom, William Rich, David Hess and John Donahue, 
 all citizens and residents of the State of Kansas and, as hereafter 
 shown, necessary parties plaintiff in this proceeding. 
 
 6. The defendant further says that after the first settlements were 
 made in eastern Kansas for farming purposes, it was a prevalent 
 belief for many years that the area of rainfall sufficient for the culti- 
 vation of crops moved westward with the cultivation of the land, 
 and about the year 1882 it was generally claimed that the area of 
 rainfall sufficient for the growth of crops had moved so far westward 
 as to cover western Kansas and to extend thirty or forty miles into 
 the State of Colorado. Acting under this belief, the country on both 
 sides of the Arkansas river in Kansas, extending far back on the 
 “ Great Plains ” and also extending into Colorado as far as the pres- 
 ent town of Lamar, was taken up bv settlers, acquiring title either 
 from the Government of the United States by homestead or pre- 
 emption, or from the owners of the lands granted to the State of 
 Kansas and by said State conveyed to the Atchison, Topeka & Santa 
 Fe Railroad Company. Residences and farm buildings were erected, 
 school districts were established and school houses built and a com- 
 paratively large population was established on the lands extending 
 from the 100th to the 103rd meridian, and particularly in the neigh- 
 borhood of the line between the States of Colorado and Kansas. Fol- 
 lowing the year ltf82 and continuing for several years there was a 
 constant failure of crops due to insufficient rainfall, and a large part 
 of the population referred to gradually moved out of the country. 
 The people of the State of Kansas about 1886, realized that the lands 
 
THE STATE OF COLORADO KT AL. 
 
 131 
 
 so settled upon were so destitute of moisture and the rainfall was so 
 slight as to render them incapable of being cultivated, ami that only 
 by the diversion and application of the waters of the Arkansas river 
 could agriculture be pursued in western Kansas and eastern Colo- 
 rado. Thereupon the legislature of the State of Kansas, for the pur- 
 pose of allowing and authorizing the diversion and use of the waters 
 of said river for the purpose of reclaiming said lands, so far as situ- 
 ated in said State of Kansas, at its session in 1886 passed an act con- 
 cerning irrigation, in which it was declared that “ the right to the 
 use of running water flowing in a river or stream in this State, for 
 the purposes of irrigation, may be acquired by appropriation.” 
 
 7. In reliance upon said act of the legislature of the State of 
 Kansas and upon the laws, customs and usages prevailing in the 
 State of Colorado respecting the diversion and use of water for agri- 
 cultural purposes, there was constructed a certain ditch or canal 
 then called and since known as the Amity canal, commencing on 
 the north bank of the Arkansas river in the northwest quarter of the 
 southwest quarter (N. W. S. W.) of section thirty-six (36), near the 
 line between the north half and the south half of said section in 
 township twenty-two (22) south, range forty-eight (48) west, and 
 thence continuing in a general easterly direction through townships 
 forty-seven (47), forty-six (46), forty-five (45), forty-four (44), forty- 
 three (43), forty-two (42), and forty-one (41) west, and ending, in the 
 year 1895, at a point in the county of Hamilton in the State of Kansas 
 about thirty miles east of the State line, — a total length of about one 
 hundred and ten miles. Said canal was of a carrying capacity of 
 302.9 cubic feet per second of time and was constructed for the pur- 
 pose of furnishing water for irrigation and domestic uses on the lands 
 lying under said canal in the States of Colorado and Kansas. The 
 owners of said canal acquired and owned in fee simple nearly all the 
 land lying under said canal and capable of being irrigated there- 
 from, both in Colorado and Kansas. 
 
 8. About the time of the construction of said Amity canal in the 
 year 1887, numerous other ditches or canals were constructed in the 
 counties of Hamilton, Kearney, Finney, Gray, Ford, Edwards, 
 Pawnee and Barton in the State of Kansas, for the diversion of the 
 surface and underflow of waters of said Arkansas river and the ap- 
 plication of said waters to riparian and non-riparian lands in the 
 valley of the Arkansas in the irrigation and cultivation thereof, and 
 in particular to lands contiguous to the towns of Syracuse, Garden 
 City, Cimarron, Dodge City, Kinsley, Larned and Great Bend, 
 owned by the persons, citizens and residents of Kansas whose alleged 
 rights are claimed by the bill of complaint herein to have been im- 
 paired by the diversion of the waters of said river in Colorado by 
 this defendant and others. 
 
 Among other canals so constructed was the canal known as the 
 Dodge City canal, covering the land in the county of Ford alleged 
 in the bill of complaint to have been conveyed in 1889 to the State 
 of Kansas by the Government of the United States to be used as a 
 
132 
 
 THE STATE OF KANSAS VS. 
 
 soldiers’ home, said canal also covering land lying north of and 
 abutting upon said river for a distance of about thirty miles. Said 
 land of the State of Kansas in Ford county was also covered by 
 another ditch or canal constructed by the Kansas Water Works and 
 Irrigating Company, a corporation organized and existing under 
 the laws of the State of Kansas then called and since known as the 
 Eureka canal, commencing near the town of Ingalls in the southeast 
 corner of township 25 south, range 29, and extending thence a dis- 
 tance of about ninety miles, covering all the riparian and a large 
 part of the non-riparian lands along said river in township 26 south, 
 and ranges 21, 22, 23, 24, 25, 26, 27 and 28 west, and township 27 
 south, ranges 21, 22, 23 and 24 west, said lands being owned by 
 citizens and residents of Kansas whose names are to this defendant 
 unknown. 
 
 There was also constructed by the South Dodge Canal Company, 
 a corporation organized and existing under the laws of the State of 
 Kansas, a certain other ditch or canal on the south side of said river 
 known as and called the South Dodge canal, covering the riparian 
 lands of said river opposite the lands belonging to said State of 
 Kansas; said canal commencing at or near the center of township 
 26 south, range 26 west, and extending thence eastward about fifteen 
 miles and covering riparian and non-riparian lands, in townships 26 
 and 27 south, ranges 24, 25 and 26 west, said lands being owned by 
 citizens and residents of Kansas whose names are to this defendant 
 unknown. 
 
 This defendant further says that following the construction of said 
 Amity canal, the following ditches and canals were constructed di- 
 verting the surface or underflow waters of said river, in the State of 
 Kansas, to wit : 
 
 In the County of Hamilton. 
 
 A certain canal known as the Alamo canal, commencing on the 
 north bank of said river near the center of said count}’' and thence 
 continuing to the east line of said county ; said canal covering the 
 lands north of and abutting upon said river in township 24 south, 
 ranges 39,40 and 41 west, said canal now being owned by the Alamo 
 Irrigating Canal Company, a corporation organized and existing 
 under and by virtue of the laws of the State of Kansas, and said 
 lands covered thereby being owned in part by John E. Frost, J. V. 
 Pratt, W. F. Reed, James Gates, W. J. Martindale, D. A. Monroe, 
 L. C. Price and others, all residents and citizens of Kansas, who 
 have, as defendant is informed, at all times when water was ob- 
 tainable through said canal, used the same in the irrigation of said 
 lands. 
 
 Also a certain canal known as the Occidental canal, commencing 
 on the north bank of said river 5J miles west of the town of Syra- 
 cuse and thence continuing for 3J miles eastward and carrying water 
 for irrigation to lands in sections 9, 10 and 11 in township 24 south, 
 range 41 west, being the lands lying on the north bank of and abut- 
 
THE STATE OF COLORADO KT AL. 
 
 133 
 
 ting on said river, said lands now being owned by B. J. Woodley, 
 L. Inge and L. T. Worden, all citizens and residents of Kansas. 
 
 Also a certain canal known as the Alameda canal, commencing 
 on the north bank of said river 3J miles west of the town of Syra- 
 cuse and thence continuing eastward a distance of 4J miles and car- 
 rying water for the irrigation of lands in sections 16, 17 and 18 in 
 township 24 south, range 40 west, and section 12, township 24 south, 
 range 41 west, said lands now being owned by C. F. Roe, E. J. Bar- 
 ber, Ben A. Wood, M. J. Clark, A. L. Huffman, Henry Packer and 
 W. J. Parnell, all citizens and residents of Kansas. 
 
 Also a certain ditch or canal known as the Ford ditch, commenc- 
 ing on the south side of said river about 3 miles east of Syracuse 
 and covering riparian and non-riparian lands south of said river, 
 the amount and ownership of which is to this defendant unknown. 
 
 Also a certain ditch known as the Prosperity ditch, beginning on 
 the south side of said river 6 miles east of Syracuse and thence con- 
 tinuing eastward 3J miles and covering riparian and noil-riparian 
 lands lying south of said river, the amount and ownership of which 
 is to this defendant unknown. 
 
 In the County of Kearney. 
 
 A certain canal called and known as the Amazon canal, com- 
 mencing on the north side of said river about five miles west of the 
 town of Hartland and thence continuing in a northeasterly direc- 
 tion a distance of about 54 miles and carrying water for the irriga- 
 tion of riparian and non-riparian land lying along and north of said 
 Arkansas river in township 25 south, range 37 west, and township 
 24 south, range 36 west, and townships 23 and 24 south, range 
 35 west, and township 23 south, range 34 west, said lands belong- 
 ing to citizens and residents of Kansas whose names are to this de- 
 fendant unknown. 
 
 Also a certain ditch known as and called the Great Eastern ditch, 
 commencing on the north side of said river about J mile west of the 
 town of Hartland and continuing thence eastward a short distance 
 and carrying water for the irrigation of riparian and non-riparian 
 lands north of said river, the amount and ownership of which is to 
 this defendant unknown. 
 
 Also a certain ditch belonging to one A. L. Derlinger, a citizen and 
 resident of Kansas, commencing on the south side of said river 
 about 5 miles west of Hartland and continuing thence about 4J 
 miles, covering the lands of said Derlinger on the south side of said 
 river, the amount of said land being to this defendant unknown. 
 
 Also a certain ditch known as the Lakin or South Side ditch, be- 
 ginning on the south side of said river 2 miles west of the town of 
 Hartland and thence continuing a distance of 25 miles and carrying 
 water for the irrigation of lands lying in township 25 south, ranges 
 35, 36 and 37 west, belonging to citizens and residents of Kansas 
 whose names are to this defendant unknown. 
 
134 
 
 TH K STATE OF KANSAS VS. 
 
 In the County of Finney. 
 
 A certain ditch or canal known as the Kansas City or Farmers’ 
 ditch, owned by the Finney County Farmers’ Irrigating Company, 
 a corporation organized and existing under the laws of the State of 
 Kansas, commencing on the north side of said river 10 miles east of 
 the town of La kin and thence continuing in a northeasterly direction 
 for about thirty miles and carrying water to riparian and non- 
 riparian lands in townships 23 and 24 south, ranges 32, 33 and 34 
 west, the amount and ownership of said land being to this defendant 
 unknown. 
 
 Also a certain ditch or canal known as the Garden City ditch, 
 commencing on the north side of said river 4 miles west of Garden 
 City and thence continuing eastward and carrying water to lands 
 lying in and about Garden City in township 24 south, ranges 31, 32 
 and 33 west, the amount and ownership of said land being to this 
 defendant unknown. 
 
 In the County of Gray. 
 
 A certain ditch or canal known as the Soule ditch, beginning on 
 the north side of said river 2 miles west of the town of Ingalls and 
 thence continuing eastward about 20 miles and carrying water to 
 riparian and non-riparian lands in township 27 south, ranges 27 and 
 28 west, the amount and ownership of said lands being to this de- 
 fendant unknown. 
 
 Also a certain ditch known as the Hanger ditch, commencing on 
 the south side of said river about 3 miles west of the town of Ingalls 
 and thence continuing eastward and irrigating lands, the amount 
 and ownership of which is to this defendant unknown. 
 
 Also a certain ditch or canal known as the Economy ditch, com- 
 mencing on the south side of said river below the town of Ingalls 
 and thence continuing eastwardly a distance of about 5f miles and 
 carrying water to about 100 acres of riparian land, the ownership of 
 which is to this defendant unknown. 
 
 This defendant further alleges that certain other ditches and 
 canals were constructed in the counties of Edwards and Pawnee, 
 diverting water for the irrigation of riparian and non-riparian land, 
 the names of which and the lands irrigated thereby this defendant 
 has been unable to ascertain. 
 
 9. All of the ditches and canals above mentioned, as this defend- 
 ant is informed and believes, have diverted and carried water for 
 the irrigation of the lands lying thereunder when obtainable, and 
 the owners of said lands have used the waters so diverted in the irri- 
 gation and cultivation thereof, and have at all times disclaimed and 
 renounced any and all rights they might have to the continuous 
 flow of the surface or underflow waters of said Arkansas river in con- 
 traversion of the right to divert and apply the same to the irrigation 
 of riparian and non-riparian lands in said valley, and the respective 
 owners of said ditches and canals and of the riparian and non- 
 
THE STATE OF COLORADO ET AL. 
 
 135 
 
 riparian lands thereunder are, as this defendant respectfully sug- 
 gests, necessary parties to any determination of the right of this de- 
 fendant to divert and use the waters of said river as it has been ac- 
 customed to do each and every year since and including the year 
 1887. 
 
 10. The construction of said Amity canal and of other canals in 
 Colorado, and of the said canals in Kansas, and the reclamation and 
 cultivation thereby of the arid and semi-arid lands of said States of 
 Colorado and Kansas, were well known to the owners of riparian 
 and non-riparian land throughout the entire valley of the Arkansas 
 in Kansas; detailed accounts of the same were published in all the 
 papers issued in the various towns in said valley, and from time to 
 time excursions were taken by many of the people of said valley to 
 inspect and report upon the irrigation systems in vogue in Colorado 
 and in particular the ditches in and about Rocky Ford and the 
 ditches now owned by this defendant, and the owners of non-irriga- 
 ble lands in said valley were constantly moving to and settling upon 
 lands under said canals and ditches in Colorado and Kansas. 
 
 Commencing about the year 1886 and continuing at intervals to 
 and including the year 1903, conventions of the owners of riparian 
 and non-riparian lands in said valley, and of the citizens thereof, 
 have been called and held at Garden City and at other towns and 
 cities in said valley, to consider and devise methods for extending the 
 system of irrigation used by the Amity and other canals in Colorado, 
 and said canals in Kansas, and at said conventions full and complete 
 reports of the progress of irrigation in the valley of the Arkansas in 
 Colorado have been made and the taking of the waters of said Ar- 
 kansas river by said canals in the State of Colorado has at all times 
 been acquiesced in, approved and the right to do so confirmed. 
 
 11. On February 14, 1889, the Senate of the United States adopted 
 a resolution that a special committee of seven Senators be appointed 
 by the President of the Senate, to be known as the “ Special Com- 
 mittee on the Irrigation and Reclamation of Arid Lands,” whose 
 duty it should be to consider the subject of irrigation and the best 
 mode of reclaiming the public lands of the United States. Said 
 committee was duly appointed and thereafter, in the month of Sep- 
 tember, 1889, held sessions at various points in the valley of the 
 Arkansas river in Kansas to receive the statements of the owners of 
 land and the citizens in said valley concerning irrigation. At the 
 several sessions of said committee, many of said owners of lands 
 and citizens were in attendance and it was represented by them that 
 the larger part of said valley was uninhabitable and incapable of 
 being cultivated except by the irrigation thereof; that the people 
 had settled upon the lands in said valley and had taken up the same 
 and had acquired title of the Government of the United States 
 during a cycle of sufficient rainfall and in the belief that in paying 
 to the Government of the United States the price of said lands they 
 had obtained lands susceptible of cultivation and the raising of 
 crops; that it had been found that the rainfall was insufficient to 
 
136 
 
 THE STATE OP KANSAS VS. 
 
 grow or mature crops; that many of those acquiring title from the 
 Government had been compelled to leave the country, and that 
 the remainder, while hopeful of being able to reclaim and 
 cultivate a large portion of the riparian and non-riparian lands 
 of said valley, were too poor to construct the necessary irriga- 
 tion works. It was therefore urged that having received the 
 pric£ and value, of said lands as lands capable of cultivation 
 and being made productive, the Government was in duty bound 
 to assist in the exploration of the water supply of said valley and in 
 the construction of works adapted to the irrigation of said lands. 
 Constant reference was made to the ditches and canals that had been 
 constructed in the State of Colorado and the diversion of the waters 
 of the Arkansas thereby, and to the beneficial effect secured by the 
 irrigation of lands in said State, but no objection or protest was 
 made to such diversions of water, nor was any claim made that the 
 water of said Arkansas river should continue to flow from the State 
 of Colorado into the State of Kansas as it had formerly done, but on 
 the contrary it was urged that the Government should build, or aid 
 in building, reservoirs in the mountains in Colorado in which to im- 
 pound and store the waters of said river that the same might there- 
 after be carried down said river for use in the irrigation of lands in 
 Colorado and Kansas. 
 
 12. In September, 1891, a convention of irrigators and owners of 
 lands in the arid and semi-arid regions west of the Missouri river 
 was held at the city of Salt Lake in the then Territory of Utah, said 
 convention being known as the “ First irrigation congress.” Dele- 
 gates to said convention were sent by the governor of Kansas and 
 most of the delegates from Kansas were from the Arkansas valley 
 and were sent to and appeared in said convention as the special rep- 
 resentatives of the owners of lands in said valley. Said delegates 
 reported to the members of said convention the circumstances under 
 which the lands in said valley had been taken up and the price paid 
 therefor to the Government of the United States; that the Govern- 
 ment had received for said lands an amount approximating six mil- 
 lion dollars; that the land had been found to be unfit for cultiva- 
 tion or habitation without irrigation, and the convention was urged 
 by them to demand of the Government of the United States that it 
 should encourage, promote and assist in the construction of the nec- 
 essary irrigation works whereby to obtain water for the irrigation 
 of the lands in said valley, and the platform adopted at said irriga- 
 tion congress, known as the “ Salt Lake platform,” was prepared at 
 the instance and request of said delegation from Kansas, represent- 
 ing the views and wishes of all the owners of riparian and non- 
 riparian lands in said valley of the Arkansas in Kansas, said plat- 
 form being in part as follows : 
 
 “ Whereas, large areas of arid lands and semi-arid lands situated 
 upon the great plains in the Dakotas, Western Nebraska, Kansas 
 and Oklahoma were settled upon in good faith by homeseekers, 
 under the supposition that they were obtaining agricultural lands ; 
 
THE STATE OF COLORADO ET AL. 
 
 137 
 
 “ And whereas, the settlers upon such lands have expended much 
 time and labor upon the same and paid into the United States 
 Treasury therefor many millions of dollars, only to discover that ir- 
 rigation, to a greater or less extent, is necessary in making homes 
 for themselves therein ; 
 
 “ Therefore, be it resolved, That the representatives of all the 
 States and Territories directly concerned in irrigation, do hereby 
 pledge their unwavering support to the just demands of such settlers 
 that the General Government shall donate at least a portion of the 
 funds received from the sale of such lands toward the procurement 
 of the means necessary for their irrigation.” 
 
 At said convention reference was made by said delegates from 
 Kansas to the irrigation works constructed at Greeley, Rocky Ford 
 and along the Arkansas river in Colorado, and the same was ap- 
 pealed to as a demonstration of what may be accomplished by irri- 
 gation, and it was urged that the like system should, by Gov- 
 ernment aid, be applied in the valley of the Arkansas in Kansas, 
 and it was further urged that the Government should make an irri- 
 gation survey of the lands in Kansas to aid those desiring to con- 
 struct ditches or canals and to furnish information to all persons 
 wishing to know the lines which might be followed by canals and 
 ditches in said valley. 
 
 At subsequent meetings of said irrigation congress, held at Los 
 Angeles in 1893, and in Denver in 1894, delegates representing the 
 owners of lands in and the citizens of said valley were present, urging 
 the support of said convention in the application of the people of 
 said valley to the Government for aid in the construction of irriga- 
 tion works. In all of said conventions the demands of the delegates 
 from the State of Karisas were acceded to and the Government of 
 the United States was induced to and did make an irrigation or 
 contour survey of the lands in the valle} r of the Arkansas for the 
 purpose of aiding in the extension of the irrigable area thereof. 
 
 Said irrigation congress, at its session in Los Angeles elected Judge 
 J. S. Emery, of the State of Kansas, its president, and immediately 
 thereafter appointed him as lecturer on the subject of irrigation, and 
 said Emery commencing immediately thereafter at various times ad- 
 dressed the citizens and owners of lands in said Arkansas valley in 
 Kansas and made known to them in detail the results of irrigation 
 as practiced in Colorado by the use of the waters of the Arkansas 
 river. 
 
 13. On March 10, 1891, the legislature of the State of Kansas 
 passed an act providing for and regulating the diversion, appropria- 
 tion, storage and distribution of waters for industrial purposes within 
 prescribed limits, and the construction, maintenance and operation 
 of works therefor, and therein and thereby provided that : 
 
 “ In all that portion of the State of Kansas situated west of the 
 99th meridian, all natural waters, whether standing or running, and 
 whether surface or subterranean, shall be devoted first to purposes 
 of irrigation in aid of agriculture, subject to ordinary domestic uses, 
 
138 
 
 THE STATE OF KANSAS VS. 
 
 and secondly to other industrial purposes, and maybe diverted from 
 natural beds, basins or channels for such purposes and uses ; pro- 
 vided that no such diversion shall interfere with, diminish or divest 
 any prior vested right of appropriation for the same or a higher 
 purpose than that for which such diversion is sought to be made, 
 without a due legal condemnation of and compensation for the same.” 
 
 In and by said act certain provisions were adopted concerning the 
 use and sale of waters diverted substantially the same as those 
 theretofore in force in the State of Colorado; and thereafter by an 
 act passed by said legislature in 1895, said statute was made appli- 
 cable to all that portion of Kansas west of the 98th meridian. 
 
 By another act passed by said legislature on March 5, 1895, a 
 board of irrigation, survey and experiment was created, which was 
 required to conduct experiments in irrigation in the State and ap- 
 propriations in aid thereof were made by said legislature. 
 
 By a subsequent act passed by said legislature, a commissioner 
 of forestry and irrigation was created and an appropriation made 
 for the maintenance of an experimental station at which demonstra- 
 tions should be made of the methods and value of irrigation. 
 
 The supreme court of said State of Kansas, in the case of Keen vs. 
 Kline, decided on the 6th day of July, 1901, declared that the legis- 
 lature of Kansas had by the acts above mentioned recognized the 
 principle of irrigation in the State of Kansas and made the promo- 
 tion of irrigation west of the 98th meridian a public use. 
 
 14. Acting in reliance upon the laws, customs and usages thus 
 prevailing in the State of Kansas respecting the diversion and use 
 of the waters of said State, and in the belief that it was the desire 
 and policy of said State, and of the inhabitants and the owners of 
 lands in the valley of the Arkansas in said State, that the lands in 
 said valley should be reclaimed and made fruitful and productive 
 by irrigation, and that all claim of riparian rights contrary to or 
 in derogation of the right to divert the waters of the said Arkansas 
 river for irrigation purposes had been surrendered and relinquished 
 by said State and by the several owners of lands in said valley, the 
 owners of said Amity canal, in the year 1895, acquired title to 
 121,522 acres of land lying north of and along said Arkansas river 
 in the State of Kansas, — 39,103 acres being situated in Hamilton 
 county, 48,749 acres being situated in Kearney county, 1,857 acres 
 being situated in Finney county and 11,812 acres being situated in 
 Gray county ; all of said lands being part of the lands alleged by 
 the bill of complaint herein to have been granted to the State of 
 Kansas to aid in the construction of certain railroads in said State, 
 and thereafter conveyed to the Atchison, Topeka & Santa Fe rail- 
 road, and being the lands upon behalf of which and the owners 
 thereof, relief is specifically sought by the bill of complaint herein. 
 All of said lands were acquired for the purpose of irrigating the 
 same by an extension of said Amity canal from its then terminus in 
 the county of Hamilton across said counties of Hamilton, Kearney 
 Finney and Gray. 
 
THE STATIC OF COLORADO ET AL. 
 
 139 
 
 15. By reason of the acquisition of said lands in the State of 
 Kansas and of the insufficiency of the flow of water of said river 
 during the latter part of the irrigating season, the owners of said 
 Amity canal, and of the lands lying thereunder in the State of 
 Colorado and of said lands in the State of Kansas acquired as afore- 
 said, undertook the construction of a system of reservoirs in town- 
 ships 19 and 20 south, ranges 47 and 48 west, in the county of 
 Kiowa in the State of Colorado, with the necessary supply and de- 
 livery canals, for the purpose of impounding in said reservoirs, when 
 and as the same might be obtained, the waters of said Arkansas 
 river, and thereafter carrying the same, through the delivery canals 
 of said system, into said Amity canal, to be thence delivered and 
 used in the irrigation of the lands lying thereunder in the States of 
 Colorado and Kansas, and, by an extension of said canal, in the 
 irrigation of the lands in said State of Kansas acquired as aforesaid. 
 
 In the construction of said reservoir system, a supply canal was 
 built in the year 1897, commencing at a point on the north bank of 
 the Arkansas river on the south line of section 29, township 23 south, 
 range 55 west, extending thence in a northeasterly direction a dis- 
 tance of 80 miles, said canal being of an average width of 60 feet 
 from its headgate for a distance of 40 miles, with a carrying capacity 
 of about 2.000 cubic feet of water per second of time, and for the re- 
 maining 40 miles with an average width of 40 feet with a carrying 
 capacity of 1,200 cubic feet per second. Said reservoirs were con- 
 structed in the year 1897 with a surface area of about 12,000 acres 
 and with a shore line approximating 60 miles, the holding capacity 
 of said reservoirs being about 250,000 acre feet. 
 
 There were also constructed certain delivery canals, aggregating 
 23 miles in length, with a carrying capacity of 600 cubic feet per 
 second, through and by means of which the waters stored in said 
 reservoirs were to be carried to and delivered into said Amity canal. 
 
 There was expended in constructing said reservoir svstem more 
 than $500,000. 
 
 16. After the construction of said reservoir system and the use 
 thereof in connection with said Amity canal, it was developed that 
 the water obtainable bv said system and by the direct diversion of 
 the Amity canal from said Arkansas river during the irrigating 
 season was not sufficient to irrigate all the lands in Colorado and 
 Kansas intended to be irrigated thereby, and the irrigation of the 
 lands in Kearney, Finney and Gray counties, and a portion of those 
 in Hamilton county was, in the year 1901, abandoned for the time 
 being, but said lands are now owned by persons originally con- 
 cerned and interested in the said Amity canal and the construction 
 of said reservoir system. 
 
 17. In February, 1901, this defendant became a body corporate 
 under and by virtue of a compliance with the laws of the State of 
 New Jersey and duly authorized to acquire and hold lands and 
 water rights in Colorado and Kansas, and, relying upon the laws, 
 customs, usages and policy of the State of Kansas respecting the 
 
140 
 
 THE STATE OF KANSAS VS. 
 
 diversion and use of water in the reclamation and cultivation of 
 arid lands, and of the' waiver, surrender and relinquishments by 
 said State of Kansas and the owners of lands in said Arkansas 
 valley of all riparian rights in said river contrary to or in deroga- 
 tion of the right to divert the waters thereof for irrigation, as well 
 as upon the acts of Congress respecting the diversion and use of the 
 waters of the streams flowing on the public lands, and the surren- 
 der by the United States of all rights which might be claimed 
 therein in derogation of the right to divert the same for irrigation, 
 and as well upon the acts of the legislature of Colorado and the 
 laws, customs and usages prevailing in said State in respect to irri- 
 gation, all of which this defendant avers was well known to the 
 owners of riparian and non-riparian lands in said Arkansas valley 
 in the State of Kansas, this defendant, on the first da} r of July, 
 1901, acquired title to said Buffalo and Amity canals and said Great 
 Plains reservoir system, subject to the rights of all owners of lands 
 diverting the waters of said river through said canals for the irri- 
 gation thereof and of about one hundred thousand acres of land in 
 Colorado and Kansas lying under and irrigable from said canals and 
 reservoirs, and invested in said properties about three million dollars. 
 
 18. About the year 1890, the colonization of the lands under said 
 Amity and Buffalo canals was commenced and from time to time until 
 the filing of the amended bill of complaint herein, tracts of land, vary- 
 ing from 5 to 160 acres, with the right to the carriage through said 
 canals of the waters of said Arkansas river to be used in the irrigation 
 thereof, had been sold, the aggregate thereof being more than 40,000 
 acres, and the purchasers thereof have entered upon and improved 
 the lands so sold to them, erecting houses and barns, building fences, 
 planting trees and orchards, growing grains, grasses and vegetables 
 and conducting the usual farming operations. Several towns and 
 villages have grown up under said canals, and buildings for 
 churches, schools, stores, residences and other public and private 
 purposes have been erected, — all of said reclamation, cultivation and 
 improvement being made in reliance upon the continued use of the 
 waters of said Arkansas river in the irrigation of said lands ; the 
 amount invested in said lands and (he improvement thereof and in 
 said towns and villages dependent thereon aggregating several mil- 
 lion dollars. The deprivation of the use of the waters of said river 
 in the irrigation of the lands lying under said Buffalo and Amity 
 canals, as sought by the bill of complaint herein, would render all 
 said improvements valueless, compel abandonment of said lands, 
 depopulate said towns and villages and reduce all of the lands under 
 said canals to their original desert and worthless condition. 
 
 Said lands were very largely settled upon and purchased by former 
 citizens of Kansas, the valley of the Arkansas in both Colorado and 
 Kansas being treated and considered by colonists and settlers as an 
 entirety, its development having no reference to the State line. 
 
 In addition to the citizens of Kansas removing to and settling 
 upon said lands, the following lands under the ditches, canals and 
 
THE STATE OF COLORADO ET AL. 
 
 141 
 
 reservoir system of this defendant were, long prior to the filing of 
 the bill of complaint herein, acquired in reliance upon the right to 
 divert the waters of the Arkansas river and apply the same to the 
 reclamation and irrigation thereof, by the following persons, who, at 
 the time of the filing of the complaint herein, were and still are citi- 
 zens and residents of Kansas : 
 
 The southwest quarter of section 18, township 23, range 41, by A. ]>. 
 Jones. 
 
 Part of section 20, township 23, range 41. by W. J. House. 
 
 Northwest quarter of section 17, township 22, range 42, by P. M. 
 Gillum. 
 
 Part of section 31, township 22, range 42, by W. R. Falkiner. 
 
 Part of section 31, township 22, range 42, by Thos. D. Alden. 
 
 Southeast quarter of southeast quarter of section 22, township 22, 
 range 43, by B. F. Cochran. 
 
 Northwest quarter of southwest quarter of section 29, township 22, 
 range 43, by S. F. Sales. 
 
 Northwest quarter of section 17, township 21, range 46, by Richard 
 Turner. 
 
 West half of northeast quarter of section 34, township 21, range 
 46, by W. S. Metcalf. 
 
 Northwest quarter of section 10, township 22, range 47, by E. D. 
 Kimball. 
 
 Northwest quarter of section 33, township 21, range 47, by John 
 R. Mu 1 vane. 
 
 Northeast quarter of northeast quarter of section 35, township 22, 
 range 47, by W. B. Humphrey. 
 
 And this defendant submits that as the right of said citizens of 
 Kansas and of all other persons owning lands under said canals and 
 ditches to divert and use the waters of said river in the irrigation 
 of their said lands is denied by the bill of complaint herein, they 
 are necessary parties to a determination of the matters presented by 
 said bill of complaint. 
 
 19. Several thousand acres of land under the Amity canal and 
 the reservoir system of this defendant were, long prior to the filing 
 of the bill of complaint herein, filed upon and the title thereto ob- 
 tained from the Government of the United States by a compliance 
 with an act of Congress approved March 3,1877, known as the 
 “desert land act,” and the persons so acquiring title to the same 
 are, by said act of Congress, entitled to continue to divert the 
 waters of the Arkansas river and use the same in the cultivation of 
 said lands. 
 
 20. This defendant respectfully submits that the State of Kansas 
 is not as the owner, or the representative of the owners, of lands in 
 said Arkansas valley in Kansas, entitled to the relief sought in said 
 amended bill of complaint against this defendant, because, by the 
 acts, doings and conduct of said State of Kansas and of the owners 
 of lands in said valley as above set forth, and by the delay of said 
 State in filing its said bill, and by the failure of the owners of lands 
 
142 
 
 THE STATE OF KANSAS VS. 
 
 in said valley to assert the right claimed in their behalf by said 
 State, this defendant and the owners of lands under said Amity and 
 Buffalo canals and said Great Plains reservoir system have been in- 
 duced to make large investments in reliance thereon, and said State 
 of Kansas is in equity and good conscience estopped from now 
 claiming any relief which would impair or destroy said investments, 
 and this defendant therefore also submits that its rights in the 
 premises cannot be ascertained or determined in this or any other 
 proceeding without making the owners of land riparian to said 
 Arkansas river in Kansas parties thereto. 
 
 21. This defendant further respectfully submits that aside from 
 the laws, usages and customs concerning irrigation prevailing in 
 the States of Colorado and Kansas, the said lands under said Buffalo 
 canal and under said Amity canal were and are riparian to said 
 river and entitled by the principles and doctrines of the common 
 law claimed by the bill of complaint herein to be applicable in both 
 Colorado and Kansas, to divert the waters of said Arkansas river 
 and use the same in the irrigation thereof, and that the use of said 
 water on said lands for all purposes necessary to making the same 
 habitable and capable of sustaining human life, is a domestic use 
 authorized and protected by the said principles and doctrines of the 
 common law relied upon by the bill of complaint herein. 
 
 III. 
 
 This defendant, for further answer and defense to said amended 
 bill of complaint, says: 
 
 1. On the 29th day of September, 1885, the predecessor in title of 
 this defendant commenced the construction of a certain canal then 
 called and since known as the Buffalo canal, commencing on the 
 north bank of the Arkansas river in the northwest quarter of north- 
 west quarter of section 31, township 22 south, range 43 west, and 
 thence continuing to the line between the States of Colorado and 
 Kansas, and thereby appropriated 100 cubic feet per second of the 
 waters of said river and used the same in the irrigation of the lands 
 situated under said canal, and at all times since the waters of said 
 river, by virtue of said appropriation, have been diverted through 
 said canal and used in the irrigation of said lands. 
 
 2. On the 21st day of February, 1887, the predecessor in title of 
 this defendant commenced the construction of a certain canal then 
 called and since known as the Amity canal, commencing on the 
 north bank of the Arkansas river in the northwest quarter of south- 
 west quarter of section 36, township 22 south, range 48 west, and 
 thence continuing to a point in the county of Hamilton in the State 
 of Kansas about thirty miles east of the State line, and thereby ap- 
 propriated 284 cubic feet per second of the waters of said river and 
 used the same in the irrigation of the lands situated under said 
 canal, and at all times since the waters of said river by virtue of 
 said appropriations have been diverted through said canal and used 
 in the irrigation of said lands. 
 
 ; i 
 
 j 
 
THE STATE OF COLORADO ET AL. 
 
 143 
 
 3. On the 10th of December, 1897, the predecessor in title of this 
 defendant commenced the construction of a system of reservoirs sit- 
 uated in townships 19 and 20 south, ranges 47 and 48 west, in the 
 county of Kiowa in said State of Colorado, with a holding capacity 
 of about 250,000 acre feet and of an available capacity for the irri- 
 gation of lands of about 150,000 acre feet; and, for the purpose of 
 impounding in said reservoirs the waters of said Arkansas river, 
 commenced the construction of a feeder canal commencing on the 
 north bank of the Arkansas river in section 29, township 23 south, 
 range 51 west, and extending thence northeasterly a distance of 80 
 miles to said reservoir system; and, to carry the waters from said 
 reservoir system into said Amity canal for the purpose of supplying 
 the same to lands lying under said Amity canal, constructed deliv- 
 ery canals aggregating 25 miles in length and expended, in the con- 
 struction of said work, the sum of five hundred thousand dollars and 
 thereupon appropriated the waters of said river for storage and sub- 
 sequent irrigation. 
 
 4. Said canals and said reservoir system were constructed and the 
 diversion of the waters of said river made for the irrigation of lands 
 lying under said canals and said reservoir system in accordance 
 with and in reliance upon the doctrine respecting the appropriation 
 of the waters of the natural streams for irrigation and other benefi- 
 cial uses which, by usage and custom, prevailed in the arid region 
 of the United States at the time of said appropriations and which, 
 by the recognition and approval of the United States, has at all 
 times been the law' applicable to the public lands in said arid 
 region. 
 
 5. Prior to the acquisition of private title to any of the lands 
 acquired by the General Government from France, Mexico and 
 Texas by purchase, cession and annexation, respectively, comprising 
 all the lands now within the jurisdiction of the United States be- 
 tween the Mississippi river and the Pacific coast, said General Gov- 
 ernment caused said lands to be explored and reported upon for the 
 purpose of ascertaining the natural resources and the physical and 
 climatic characteristics of the various portions thereof, and by said 
 explorations and information obtained from time to time, it became 
 known to the United States and the inhabitants thereof that from 
 about the 97th meridiau to the coast range of the Pacific slope, the 
 land w’as an arid waste without timber or useful vegetation, except 
 in the mountains, and that although the soil w r as rich and fertile, 
 and great deposits of gold, silver and other valuable minerals existed 
 therein, the soil could not be made productive nor the minerals ex- 
 tracted, nor could the land be inhabited, except by the diversion of 
 water from the natural streams and the application thereof to agri- 
 cultural and mining uses, and that in that portion of said domain 
 which lay south of the Arkansas river, and which had formerly been 
 a part of Mexico, the laws, customs and usages there prevailing au- 
 thorized and sanctioned the diversion and use of water for agricul- 
 tural and other useful purposes in contravention of any right of the 
 
144 
 
 THE STATE OF KANSAS VS. 
 
 riparian owner tot have such water continually flow in its natural 
 channel. 
 
 6. With the earliest settlement in said arid region for agricultural 
 and mining purposes, which was long prior to the opening of said 
 lands to pre-emption and purchase, by necessity, common consent 
 and uniform practice, the doctrine obtained that the waters of all 
 the natural streams flowing through said arid region were subject to 
 diversion and use for agricultural purposes, and that the right to the 
 water thus diverted could be obtained both as against the United 
 States as the owner of the public lands and all grantees of the United 
 States of lands lying along said streams, and that the right of the 
 several appropriators from any given stream should be in the order 
 of diversion and use, the first in time being first in right, and said 
 doctrine has at all times been and now is the customary and statute 
 law of said arid region in respect to the natural streams thereof. 
 
 With knowledge and in recognition of such right and custom of 
 the inhabitants of such arid region to divert waters, and to apply 
 the same to beneficial and necessary uses, the United States, in its 
 treaty with Spain of February 22nd, 1819, and afterwards in its treaty 
 of January 12th, 1828, with the United Mexican States, expressly stip- 
 ulated and provided, that the use of the waters of the Arkansas 
 river, and of certain other boundary streams, should be common to 
 the respective inhabitants of both nations, parties to such treaties 
 respectively. 
 
 7. Upon the creation and admission of the several Territories and 
 States of said arid region, including Kansas, both as a Territory and 
 State, they recognized, approved and confirmed, and from thence 
 hitherto have enforced said doctrine, and rights to water diversion 
 from the streams of said arid region have been maintained as against 
 all claims of riparian rights in conflict therewith. 
 
 8. The Government of the United States, long prior to the sale by 
 it of any of the public lands in the Arkansas valley, recognized and 
 approved said doctrine, and applied the same to said public lands, 
 and renounced and surrendered all riparian rights which it might 
 have asserted in contravention of said doctrine, and from thence 
 hitherto has held and disposed of said lands subject to and in ac- 
 cordance with said doctrine, and has at all times encouraged and 
 promoted the diversion and use of the water of the streams in said 
 arid region for agricultural and mining purposes, and by grants of 
 public money has aided in the construction of canals, ditches and 
 reservoirs and other appliances for the diversion, storage and use of 
 water, in the reclamation and cultivation of the public lands. 
 
 9. By an act of Congress, approved September 4, 1841, and by 
 subsequent acts relating thereto, the public lands, including the 
 lands in said arid region were declared subject to pre-emption and 
 homestead purchase, and all persons desiring to avail themselves of 
 the provisions of said acts were required to make settlement upon 
 the land in person and to inhabit and improve the same. It was 
 then, and at all times since has been well known to the General 
 
THE STATE OF COLORADO ET AL. 
 
 145 
 
 Government, and particularly to Congress and the executive depart- 
 ments having in charge the administration of said acts, that the pro- 
 visions thereof in respect to settlement, inhabitancy and improve- 
 ment could not be complied with in the pre-emption and purchase 
 of arid lands, except by the diversion of the waters of the streams 
 upon the public lands and the application thereof to domestic and 
 irrigation purposes in reliance upon the continuance of the right 
 so to do in accordance with said doctrine of appropriation. 
 
 10. By means of the diversion and use of the waters of said natural 
 streams, many million acres of the public lands in said arid region 
 have been settled upon, inhabited and improved and title thereto 
 obtained from the General Government, in the belief that by its ac- 
 tion and conduct in the disposition of its public lands, the United 
 States had accepted and applied to said public lands the doctrine of 
 appropriation as hereinbefore set forth ; and there has been paid to 
 said General Government, on account of said lands so improved by 
 the diversion and use of water in accordance with said doctrine, up- 
 wards of twenty million dollars, and the greater part of the lands in 
 the valley of the Arkansas in the State of Colorado, were settled upon 
 and patents therefor obtained by proof of the diversion and use of 
 the waters of said Arkansas river in the reclamation and improve- 
 ment of said lands, said diversions so made being those complained 
 of and sought to be enjoined in and by the bill of complaint 
 herein. 
 
 11. The Territory of Kansas by its legislature, recognized and ap- 
 proved the said doctrine of appropriation, and in pursuance thereof 
 in 1859 authorized the St. Charles Town Company to divert the 
 waters of the South Platte river and Cherry creek, and the Moun- 
 tain Company to divert the waters of the Platte river, and the El 
 Paso Town Company to divert the waters of the tributaries of the 
 Arkansas river heading at Pike’s Peak ; and in 1860 authorized The 
 Capital Hydraulic Company to divert for irrigation purposes all the 
 waters of the South Platte river and Cherry creek. And the State 
 of Kansas, by its legislature, has also recognized, approved and 
 adopted said doctrine ; an act of said legislature enacted in 1868, au- 
 thorizing corporations to construct canals diverting water for irriga- 
 tion purposes; an act of the legislature enacted in 1886 providing 
 that the running waters of the State might be appropriated for pur- 
 poses of irrigation ; an act of said legislature enacted in 1891, pro- 
 viding that in all that portion of the State west of the 99th meridian 
 all natural waters, whether standing or running and whether sur- 
 face or subterranean, should be devoted first, to purposes of irrega- 
 tion in aid of agriculture, subject to ordinary domestic uses; and, 
 second, to other industrial purposes, and might be diverted from 
 natural beds, basins or channels for such purposes and uses ; and 
 another act enacted in 1895 providing for the development of the 
 land west of the 98th meridian by irrigation and regulating the dis- 
 tribution of water in the same manner as in Colorado. Said State 
 bv said several acts renouncing and surrendering all rights it may 
 
 10 —7 
 
146 
 
 THE STATU) OF KANSAS V& 
 
 have had in said river or the lands adjacent thereto as riparian, 
 owner in contravention of the right to divert the waters thereof for 
 irrigation in Kansas or Colorado. 
 
 12. By the act of Congress approved January 29th, 1861, admit- 
 ting Kansas into the Union, it was specifically provided that the 
 State should never interfere with the primary disposal of the soil 
 within the same b} 7 the United States, or with any regulations Con- 
 gress might find necessary for securing the title in said soil to bona 
 fide purchasers thereof, and that all laws of the United States not 
 locally inapplicable should have the same force and effect within 
 said State as in other States of the Union. 
 
 13. Following the admission into the Union of the State of Kansas 
 said doctrine of appropriation was further recognized by Congress 
 as the law applicable to the public lands and the natural streams 
 thereof, including those in the State of Kansas, by the following 
 acts : 
 
 An act approved July 26, 1866, b} 7 which it was provided that 
 whenever, by priority of possession, rights to the use of water for 
 mining, manufacturing or other purposes, have accrued and are 
 recognized according to local customs, laws and decisions, the owners 
 and possessors shall be maintained and protected in their rights; 
 
 An act approved July 9, 1870, in which it was provided that all 
 patents granted, or pre-emptions or homesteads allowed, should be 
 subject to any vested and acquired water rights or rights to ditches 
 and reservoirs used in connection with such water rights; 
 
 An act approved March 3, 1877, known as “ The Desert Land 
 Act,” which declared that all waters of all lakes, rivers and other 
 sources of supply upon the public land should remain and be held 
 free for the appropriation and use of the public for irrigation, min- 
 ing and manufacturing purposes, and in and by which it was also 
 provided that l> 3 7 the construction of canals and ditches and the ap- 
 plication of said waters to the irrigation of the public lands, title 
 to said lands might thereb} 7 be obtained from the United States; 
 
 An act approved March 3, 1891, confirming the rights of way over 
 the public lands in the arid region for canals and reservoirs for irri- 
 gation purposes ; 
 
 An act approved August 18, 1894, providing for the conveyance 
 to the several States in the arid region of such public lands as they 
 might reclaim and irrigate ; 
 
 An act approved June 17, 1902, authorizing and undertaking the 
 construction of canals, ditches and reservoirs in the arid region, 
 including therein the State of Colorado and the western portion of 
 Kansas, whereby the waters of the public lands might be diverted 
 and used for irrigation purposes, and appropriating for that purpose 
 the proceeds of all moneys received from the sale of public lands in 
 the States of Colorado and Kansas. 
 
 Under and by virtue of said act approved March 3, 1877, which 
 was made applicable to lands in Colorado by an act approved March 
 3, 1891, several thousand acres of land in the Arkansas valley in 
 
Tftti STATIC OF' COtOftAftO RT At. 
 
 14 ? 
 
 the State of Colorado, were reclaimed and irrigated, and the diver- 
 sions of water for said purposes are in part the diversions complained 
 of in the said bill of complaint. 
 
 14. Said doctrine was further recognized by Congress by the ap- 
 propriation, on October 2nd, 1888, of $229,000 for the purpose of 
 investigating the extent to which the arid region of the United States 
 might be redeemed by irrigation and for the segregation of the irri- 
 gable lands in such arid region, and for the selection of sites for 
 reservoirs and other hydraulic works necessary for the storage and 
 utilization of water for irrigation and also by a further appropria- 
 tion made on March 2nd, 1889, of $450,000 for the like purpose, all 
 of which moneys were expended in investigating and selecting reser- 
 voir sites and in running contour lines for the purpose of aiding and 
 assisting those desiring to appropriate the waters of the natural 
 streams and using the same for irrigating purposes. 
 
 15. The provisions of the constitution of the State of Colorado set 
 forth and complained of in the bill of complaint, were adopted in 
 harmony with and in pursuance of the policy of the United States 
 in respect to the diversion and use of water in the irrigation of land, 
 and the same do not conflict with or contravene any act of Congress 
 bearing upon said appropriation and use, but, on the contrary, are 
 intended as a constitutional guaranty that the right to divert water 
 for beneficial purposes as authorized and encouraged by the acts of 
 Congress referred to shall never be denied, and said provisions were 
 accepted and approved by the action of Congress in admitting Col- 
 orado into the Union, and the several acts of the legislature of Col- 
 orado, referred to in said bill of complaint, have been enacted for the 
 purpose of protecting and regulating appropriations made in pursu- 
 ance of the usages and customs prevailing in the arid region and 
 the rights of appropriation as recognized and confirmed by the acts 
 of Congress referred to. 
 
 16. All grants and patents of land in the valley of the Arkansas, 
 in the State of Kansas, were made by the United States, subject to 
 the doctrine of appropriation heretofore set forth, and were accepted 
 by the several grantees thereof with the knowledge that in the sale 
 and disposition of the arid lands of the United States along said 
 Arkansas river west of the 97th meridian, it had been and wnuld be 
 necessary to divert and use the waters of said river in the improve- 
 ment and cultivation thereof, and said grants and patents of lands 
 in the State of Kansas were made subject to the right of all persons 
 desiring the use of the same for agricultural purposes to appropriate 
 the waters of the Arkansas river, either in Kansas or Colorado, to 
 the full extent of said river, and all patents granted and all pre- 
 emptions and homesteads allowed of lands in the valley of the 
 Arkansas in the State of Kansas subsequent to July 9th, 1870, in- 
 cluding in particular the lands described in the bill of complaint 
 situated in Ford county, conveyed to said State of Kansas bv the 
 United States on the 13th day of June, 1889, and the lands in Reno 
 county described in said bill of complaint conveyed to the said State 
 
148 
 
 THE STATE OF KANSAS Vg* 
 
 of Kansas at divers times subsequent to said 9th day of July, 18?0, 
 were, by the act of Congress of July 9th, 1870, made subject to all 
 water rights in said river and rights of ditches and reservoirs in 
 connection therewith acquired in accordance with the local customs, 
 laws and decisions of Colorado. 
 
 IV. 
 
 This defendant, for further answer and defense to said amended 
 bill of complaint, says: 
 
 1. On the 29th day of September, 1885, the predecessor in title of 
 this defendant commenced the construction of a certain canal then 
 called and since known as the Buffalo canal, commencing on the 
 north bank of the Arkansas river in the northwest quarter of north- 
 west quarter of section 31, township 22 south, range 43 west, and 
 thence continuing to the line between the States of Colorado and 
 Kansas, and thereby appropriated 100 cubic feet per second of the 
 waters of said river and used trie same in the irrigation of the lands 
 situated under said canal, and at all times since, the waters of said 
 river by virtue of said appropriation have been diverted through 
 said canal and used in the irrigation of said lands. 
 
 2. On the 21st day of February, 1887, the predecessor in title of 
 this defendant commenced the construction of a certain canal then 
 called and since known as the Amity canal, commencing on the 
 north bank of the Arkansas river in the north west quarter of south- 
 west quarter of section 36, township 22 south, range 48 west, and 
 thence continuing to a point in the county of Hamilton in the State 
 of Kansas about thirty miles east of the State line, and thereby ap- 
 propriated 284 cubic feet per second of the waters of said river and 
 used the- same in the irrigation of the lands situated under said 
 canal, and at all times since the waters of said river by virtue of 
 said appropriation have been diverted through said canal and used 
 in the irrigation of said lands. 
 
 3. Said Buffalo and Amity canals were constructed and said 
 waters were diverted and used in the irrigation of the lands situated 
 under said canals in accordance with the local customs, laws and 
 the decisions of the courts of the State of Colorado respecting rights 
 to the use of water for mining, agricultural, manufacturing and 
 other purposes then in force, enacted and made. 
 
 4. The right to appropriate the waters of said river through and 
 by means of said canals for the purpose of irrigation to the extent 
 above set forth was, in the year 1895, in certain proceedings then 
 pending in the district court of the county of Bent in said State of 
 Colorado, brought and conducted in accordance with the acts of the 
 General Assembly of the State of Colorado enacted in 1879 and 
 1881, concerning the adjudication of rights to water for irrigation 
 purposes, recognized and acknowledged and said right adjudged to 
 be vested and accrued as of the date of the respective appropriations 
 made by the construction of said canals. 
 
 5. The lands in Ford county alleged by the bill of complaint to 
 
THE STATE OF COLORADO ET A L. 
 
 149 
 
 have been obtained by said State of Kansas by purchase from the 
 Government of the United States in the year 1889 and used as a 
 soldiers’ home, as well as all other lands in the valley of the Arkan- 
 sas in the State of Kansas acquired from the Government of the 
 United States since the 21st day of February, 1887, were conveyed 
 and taken subject to the appropriation and use of the waters of said 
 Arkansas river through and by means of said Amity canal as above 
 set forth. 
 
 6. The lands in said Arkansas valley in Kansas acquired from 
 the Government of the United States since the 29th day of Septem- 
 ber, 1885, were conveyed to and taken by the several grantees 
 thereof subject to the appropriation and use of the waters of said 
 river through and by means of said Buffalo canal as above set 
 forth. 
 
 7. This defendant respectfully submits that as to all lands in the 
 valley of the Arkansas in Kansas acquired subsequent to the appro- 
 priation of the Amity canal as above set forth, the State of Kansas 
 is not entitled, as against said canal, to the relief demanded in the 
 bill of complaint herein ; and that as to all the lands in said valley 
 acquired subsequent to the appropriation of said Buffalo canal, as 
 above set forth, the said State of Kansas is not entitled, as against 
 said canal, to the relief demanded in said bill of complaint; and 
 this defendant respectfully submits that the owners of lands in said 
 valley are necessary parties to a determination of the rights claimed 
 by the bill of complaint herein, and that they should be made 
 parties plaintiff hereto and compelled to set forth the dates of the 
 several conveyances to them by the Government of the United States 
 of the lands now owned by them in said valley. 
 
 V. 
 
 This defendant, for further answer and defense to said amended 
 bill of complaint, says : 
 
 1. On the 29th day of September, 1885, the predecessor in title of 
 this defendant commenced the construction of a certain canal then 
 called and since known as the Buffalo canal, commencing on the 
 north bank of the Arkansas river in the northwest quarter of north- 
 west quarter of section 31, township 22 south, range 43 west, and 
 thence continuing to the line between the States of Colorado and 
 Kansas, and thereby appropriated 100 cubic feet per second of the 
 waters of said river and used the same in the irrigation of the lands 
 situated under said canal, and at all times since, the waters of said 
 river by virtue of said appropriation have been diverted through 
 said canal and used in the irrigation of said lands. 
 
 2. On the 21st day of February, 1887, the predecessor in title of 
 this defendant commenced the construction of a certain canal then 
 called and since known as the Amity canal, commencing on the 
 north bank of the Arkansas river in the northwest quarter of south- 
 west quarter of section 36, township 22 south, range 48 west, and 
 thence continuing to a point in the county of Hamilton in the State 
 
150 
 
 THE STATE OF KANSAS VS. 
 
 of Kansas about thirty miles east of the State line, and thereby ap- 
 propriated 284 cubic feet per second of the waters of said river and 
 used the same in the irrigation of the lands situated under said canal 
 and at all times since the waters of said river by virtue of said ap- 
 propriation have been diverted through said canal and used in the 
 irrigation of said lands. 
 
 3. The diversion and use of the waters of said river were made at 
 the time of the construction of said canals and have been continued 
 each and every year since, and until the filing of the amended bill 
 of complaint herein, adversely to and in denial of the right of each 
 and every riparian owner along said river in Kansas, as well as each 
 and every owner of land in said Arkansas valley in Kansas, to the 
 usual and ordinary flow of said river in Kansas over or along any of 
 said lands as it had been accustomed to flow prior to the diversion 
 of said waters by this defendant or by other appropriators in Colo- 
 rado, and in denial of any right of the riparian owners along said 
 stream or of lands in the vicinity thereof to the flow of the water of said 
 stream, except as the same might continue after the diversion through 
 and by means of said Amity and Buffalo canals of the waters of said 
 river necessary to the irrigation of the lands lying thereunder. 
 
 4. The diversion of the waters of the Arkansas river in Colorado 
 for irrigation purposes commenced more than 25 years prior to the 
 construction of said Amit}’ and Buffalo canals, and the flow of water 
 in said river has been diminished by said appropriations and each 
 and every owner of land along said river in Kansas and in the neigh- 
 borhood thereof well knew, at the time said Amity and Buffalo 
 canals were constructed and the diversion of water made thereby, 
 that said canals, as well as all other canals along said river in the State 
 of Colorado, were diverting and using said waters adversely to and 
 in derogation of any and all rights which they might claim or possess 
 as riparian owners with respect to the waters of said Arkausas river. 
 
 5. This defendant respectfully submits that by the statutes of the 
 State of Kansas concerning the limitation of actions, the right of 
 each and every owner of land along said Arkansas river in Kansas 
 to the usual and ordinary flow of said river as the same existed prior 
 to the appropriation of said waters in the State of Colorado, and in 
 particular prior to the appropriation and diversion through and by 
 means of said Amity and Buffalo canals, became lost by fifteen years* 
 adverse use thereof and all right of action concerning said waters 
 barred after the expiration of fifteen years from the commencement 
 of the assertion and exercise of said adverse right. 
 
 VI. 
 
 This defendant, for further answer and defense to the said amended 
 bill of complaint, says: 
 
 1. The Arkansas river leaves the foot hills of the Rocky moun- 
 tains at an elevation of about six thousand feet above sea level, and 
 thence flows eastward over an elevated plateau known as the 
 “ Great Plains ” for several hundred miles, with a practically uniform 1 
 descent to the east, passing into the State of Kansas at an elevation 
 
THE STATE OE COLORADO ET AL. 
 
 151 
 
 of 3,350 feet and into the Territory of Oklahoma at an elevation of 
 1,000 feet. Through Colorado and Kansas it has a broad, level bed of 
 sand, seldom entirely covered with water, the ordinary flow running in 
 thin sheets in tortuous and constantly changing channels in the river 
 bed. From the mountains, for four hundred mileseastward,the water- 
 shed of said river is naturally barren, treeless and without any vege- 
 tation, except the short sparse grass common to the Great Plains. 
 The annual precipitation of moisture is about fourteen inches, most 
 of which falls in local and violent storms. In its uncultivated con- 
 dition, the land rapidly sheds the rainfall, discharges it into the river 
 and prevents the saturation of the soil and the formation of springs 
 by which said river and the tributaries along its course might be 
 fed. The tributary streams are usually dry, carrying and discharg- 
 ing water into the river only in case of storms. The sun is seldom 
 obscured, and commencing near the State line between Colorado and 
 Kansas, and continuing eastward for at least two hundred miles, the 
 winds are dry and constant, in the summer season becoming so 
 heated as to burn and destro}^ the vegetation and to absorb such 
 water as may be in the bed of said river. The waters supplied to 
 said river for about four hundred miles of its course after leaving 
 the mountains are irregular in discharge and constantly varying in 
 quantity, and are not sufficient to cause a steady and permanent 
 flow during any season of the year. The main supply of the river 
 is from the snows and storms in the mountains. As the snow melts 
 only during warm days, this supply is also irregular and uncertain, 
 and the volume of water in the river, therefore, changes daily and 
 even hourly. Long before irrigation was practiced in Colorado, 
 it was observed that as the waters from the mountains flowed 
 eastward, the volume constantly dimished. and this diminution 
 was the more marked as the river passed beyond the area of local 
 stoi ms caused by the mountains. During the summer season, ex- 
 cept when flooded by violent showers, the river, at a distance of from 
 two hundred to four hundred miles from the mountains, would show 
 no surface water other than occasional pools in the sand, and none 
 of the water coming into said river in Colorado would flow to or 
 across the lands in the central or humid portion of Kansas. 
 
 The usual and ordinary flow of said river into the State of Kan- 
 sas, as it is claimed to have been prior to the diversion of water in 
 Colorado by this defendant and others, has been materially 
 diminished by the destruction of timber in the water shed of said 
 river in the mountains, the removal of the protection which said 
 timber afforded causing the snow to melt much earlier in the sum- 
 mer season than heretofore and to come down in floods, instead of a 
 long sustained flow. The breaking up and tilling of the land lying 
 on both sides of said river, which, in its natural condition, was hard 
 and rapidly drained the water falling thereon, and the raising of 
 crops on said land, both in Colorado and western Kansas, for a dis- 
 tance of about two hundred miles, has caused the rainfall on said 
 lands to sink into the earth, instead of passing rapidly to the river, 
 and as said lands so broken and tilled lie along the course of the 
 
152 
 
 THE STATE OF KANSAS VS. 
 
 river, they have also intercepted the surface run-off from the drain- 
 age area back of and above said lands. 
 
 By the breaking and cultivation of said lands and the application 
 of water thereto and the absorption by said lands of the rainfall 
 which formerly flowed directly into the river, the physical charac- 
 teristics of said river in respect to the flow of water therein has been 
 materially changed. The lands so broken and cultivated were, in 
 their natural condition, barren and devoid of moisture, except at 
 extreme depths, and the gulches and water ways leading through 
 them to the river were, at all seasons of the year, except in time of 
 rain, entirely dry. By said artificial application of water and by 
 the interception of the rain falling and draining upon said lands, 
 the same condition has been and is being produced that obtains 
 where rainfall is abundant. The lands have become saturated, 
 veins and channels of water are thereby created and as the water 
 seeks a lower level, it exudes by springs or swampy lands into the 
 gulches and water ways, making them perennial streams discharg- 
 ing a uniform flow of water into the river. 
 
 Although the defendant is diverting water from said Arkansas 
 river through the Amity and Buffalo canals, said diversion does not re- 
 sult in any injury to the State of Kansas or to the owners of lands in 
 the valley of the Arkansas in said State, nor does the same, to any 
 substantial degree, diminish the usual and ordinary flow of water 
 in said river in western Kansas. Said canals are taken out in the 
 eastern part of the State of Colorado and the waters diverted are largely 
 those returned to said river by the lands cultivated and irrigated 
 along the course of said river above the intake of said canals. The 
 waters so diverted, together with the large bodies of flood and storm 
 waters diverted and stored by this defendant in its reservoirs, per- 
 mit the reclamation and irrigation of many thousand acres of land 
 under said canals, much in excess of the number that might be irri- 
 gated by the direct diversion of water during the irrigating season, 
 and all these lands thus become saturated, and year by year, as the 
 area is extended, and as the water in course of time finds its way 
 back to the river, the permanent and valuable flow of said river in 
 western Kansas is conserved and increased, rather than diminished. 
 
 This defendant, now having fully answered all the allegations in 
 the plaintiff’s amended bill of complaint, or so much thereof as the 
 defendant is advised should be answered, asks to be hence dismissed 
 with cost and charges in this behalf sustained. 
 
 THE ARKANSAS VALLEY SUGAR BEET AND 
 IRRIGATED LAND COxMPANY, 
 
 By WILLIAM M. WILEY, Manager. 
 
 PLATT ROGERS, 
 
 JOHN F. SHAFROTH, 
 
 FRANK E. GREGG, 
 
 THOMAS Id. DEVINE, 
 
 HENRY H. DUBBS, 
 
 Solicitors of the Arkansas Valley Sugar 
 
 Beet and Irrigated Land Company. 
 
THE STATE OF COLORADO ET AL. 
 
 153 
 
 United States of America, 
 District of Colorado, 
 
 On this — day of October, A. D. 1903, before me personally ap- 
 peared William M. Wiley, manager of the Arkansas Valley Sugar 
 Beet and Irrigated Land Company, in the State of Colorado, and in 
 accordance with the laws of said State designated as the agent of 
 said company in said State upon whom process should be served, 
 who made solemn oath that he had read the foregoing answer sub- 
 scribed by him and knows the contents thereof, and that the same 
 is true of his own knowledge, except as to the matters therein stated 
 on information and belief and as to those matters he believes it to 
 be true. 
 
 Subscribed and sworn to before me this — day of October, A. D. 
 1903. 
 
 [Endorsed :] Supreme Court U. S. October Term, 1903. Term 
 No. 7, Original. The State of Kansas, complainant, vs. The State 
 of Colorado et al. Answer of the Arkansas Valley Sugar Beet and 
 Irrigated Land Company to amended bill. Filed Nov. 2, 1903. 
 
 In the Supreme Court of the United States, October Term, 1903. 
 
 The State of Kansas, Complainant,] 
 
 vs. 
 
 The State of Colorado et als., De- ( 
 fendants. 
 
 V Original Proceeding No. 7. 
 
 The Separate Answer of the Defendant, The Fort Lyon Canal Com- 
 pany, to the Amended Bill of Complaint of The State of Kansas, 
 Complainant. 
 
 Chas. E. Gast, H. L. Lubers, solicitors for The Fort Lyon Canal 
 Company, defendant. 
 
 In the Supreme Court of the United States, October Term, 1903. 
 The State of Kansas, Complainant,] 
 
 The State of CoIorado et als., De- ,' 0ri 2 inal Pl ' oceudi,1 S No ‘ 7 - 
 fendants. j 
 
 The Separate Answer of the Defendant, The Fort Lyon Canal Com- 
 pany, to the Amended Bill of Complaint of The State of Kansas, 
 Complainant. 
 
 This defendant, now and at all times hereafter saving to itself all 
 and all manner of benefit or advantage of exception or otherwise 
 
154 
 
 THE STATE OF KAJNSAS VS. 
 
 that can or may be had or taken to the many errors, uncertainties 
 and imperfections in the said amended bill of complaint contained, 
 for answer thereto, or to so much thereof as this defendant is advised 
 it is material for it to make answer to, severally answering, saith : 
 
 I. 
 
 That it is a corporation created, organized and existing under the 
 laws of the State of Colorado; and, as such, it owns and operates 
 what is known as the Fort Lyon canal, a canal used for the carriage 
 and distribution of water for the irrigation of lands lying there- 
 under, and for supplying water to the owners of water rights in the 
 said canal, for irrigation and other beneficial uses. The headgate 
 of said canal is located at a point on the north bank of the Arkansas 
 river in Otero county, Colorado; and the line thereof extends thence 
 in an easterly direction through the counties of Otero, Bent and 
 Prowers in the said State of Colorado, to what is known as Big 
 Sandy creek, in Prowers county aforesaid, a distance and length of 
 about one hundred and thirteen (113) miles. 
 
 The origin of the said canal was a certain canal constructed by 
 the United States of America about the year 1860, for the purpose of 
 irrigating certain lands then in occupation by the Cheyenne Indians, 
 the headgate of which was located substantially at the same point 
 where the present headgate of the Fort Lyon canal is situate. The 
 original canal as constructed by the United States of America had a 
 capacity of about fifty-two (52) cubic feet of water per second of time, 
 and it extended from the headgate easterly for a distance of about 
 three miles. Upon the removal of the said Che} r enne Indians to the 
 Indian Territory, the original canal so constructed by the United 
 States Government was abandoned ; and in the year 1868 one George 
 T. Reynolds appropriated the same to his own use, and ever since 
 then it has been continuously used for the irrigation of lands lying 
 thereunder. On or about the first day of February, 1884, the Ar- 
 kansas River, Land, Town and Canal Company, a corporation or- 
 ganized under the laws of the State of Colorado, became the owner 
 of the same, and at once began the enlarging and extension of the 
 same, with the then intention of building a canal of substantially 
 the same size and over substantially the same line as it is now com- 
 pleted, ending at Big Sandy creek. And thereafter the work of con- 
 struction was carried on until the same was completed to a carry- 
 ing capacity of 838.8 cubic feet of water per second of time, on or 
 about the first day of April, 1889, — the said work being prosecuted 
 continuously, with diligence, and as rapidly as the means of said 
 company and its successors in interest would permit, and as rapidly 
 as required to keep pace with the settlement and development of 
 lands lying under said ditch. That from the year 1884 onward 
 the acreage put under cultivation under the line of the said canal 
 was being constantly increased from year to year up to the year 
 1890, when the whole capacity of the canal was exhausted by phys- 
 ical distribution to the lands lying under the said canal ; that the 
 
TEtE STATE OF COLORADO ET AL. 
 
 155 
 
 water appropriated by means thereof has been at all times diligently 
 applied to the lands, for the raising of crops thereon ; and that at all 
 times the water obtainable from the said river by means of the said 
 canal, and under and by virtue of said appropriation, has been neces- 
 sary to the said beneficial use. 
 
 The defendant The Fort Lyon Canal Company, by various fore- 
 closures and mesne conveyances, has succeeded to the title of the 
 said canal, and the same is operated by it, not for profit, but to satisf} r 
 the water rights, privileges, appropriations and easements therein 
 belonging to the consumers of water therefrom, and requiring for 
 the carriage and delivery of the same the full capacity of the said 
 canal, — each of the said consumers of water being a stockholder in 
 the said company to the extent of the several right and appropria- 
 tion made by him of such water. 
 
 The said defendant further alleges that there are one hundred 
 thousand acres of land lying under the said canal occupied and in 
 use, of which some sixty thousand acres have been reclaimed from 
 an arid state and are now cultivated and farmed, and about forty 
 thousand acres are at present used for grazing and pasturage; and 
 that the present value of the lands'lying under the said canal and 
 irrigated therefrom, together with the water rights incident and ap- 
 purtenant thereto, exceeds three million five hundred thousand dol- 
 lars ($3,500,000) ; that valuable improvements, such as houses, barns, 
 fences, and lateral ditches, have been built thereon. A prosperous 
 community has established itself under the said canal, and various 
 towns, such as La Junta, Las Animas and Lamar, having an aggre- 
 gate population of about seven thousand (7,000) people, have been 
 founded and developed in reliance upon the said right of appropria- 
 tion. and are largely dependent for their prosperity upon the main- 
 tenance of the said canal ; and that there are living on farms lying 
 under the said canal, and irrigated therefrom, about four thousand 
 (4,000) people. 
 
 Moreover, this defendant avers that a large portion of the land 
 lying under the said canal and irrigated therefrom was acquired as 
 to title from the United States Government under the act approved 
 March 3, 1877, known as “ the desert land act,” which declared that 
 all waters of all lakes, reservoirs and other sources of supply upon 
 the public land should remain and be held free for the appropriation 
 and use of the public for irrigation, mining and manufacturing pur- 
 poses ; and in and by which it was also provided that by the con- 
 struction of canals and ditches, and the application of said waters to 
 the irrigation of the public lands, the title to said lands might thereby 
 be obtained from the United States. 
 
 This defendant further alleges that it and its predecessors in in- 
 terest, and the consumers of water from the said canal, have ever 
 since the construction thereof used and enjoyed the said appropria- 
 tion of water for the irrigation of crops lying under the said canal, 
 unchallenged by any one, and without denial or interference. The 
 construction thereof was a matter of public history, notoriously 
 
156 
 
 THE STATE OF KANSAS VS. 
 
 known to all well informed people living in the valley of the 
 Arkansas river, both in the State of Colorado and the State of 
 Kansas; and the original construction thereof and its subsequent 
 extension was largely promoted and carried on by the aid of various 
 citizens of the State of Kansas, who were and are now owners of 
 riparian lands along the said river in the State of Colorado, and who 
 desired to bring their said lands under cultivation by means of the 
 said canal enterprise; and at all times prior to the institution of this 
 suit have the proprietors of lands riparian to the said river as the 
 same runs through the State of Kansas, assented thereto and acqui- 
 esced therein. 
 
 This defendant further alleges that if it should be compelled by 
 this honorable court to discontinue its diversion of water from the 
 said Arkansas river, as it and its predecessors in interest have prac- 
 ticed the same for the last twenty years past under authority of the 
 constitution and laws of the State of Colorado, and pursuant also to 
 the policy of the Government of the United States relative to the de- 
 velopment and improvement of its arid lands, — great and irreparable 
 wrong and injury would thus be done to the consumers of water 
 thereunder, to the extent that their crops would necessarily be de- 
 stroyed and their investments rendered valueless, and the said lands 
 would necessarily revert to their former arid state. 
 
 And this defendant invokes the benefit of an equitable estoppel 
 against the complainant, The State of Kansas, as well as all other 
 riparian proprietors whom it claims to represent and in whose inter- 
 est it has filed its bill of complaint, in respect to the matters and 
 things therein charged. 
 
 II. 
 
 This defendant for further answer to the bill of complaint, says : 
 
 1. The appropriation of the waters of the Arkansas river so made 
 by this defendant, and complained of in said bill of complaint was 
 made in accordance with and in reliance upon the doctrine respect- 
 ing the appropriation of the water of the natural streams for irri- 
 gation and other beneficial uses which, by usage and custom pre- 
 vailed in the arid region of the United States at the time of said 
 appropriation, and which, by the recognition and approval of the 
 United States, has at all times been the law applicable to the public 
 lands in said arid region. 
 
 2. Prior to the acquisition of private title to any of the lands ac- 
 quired by the General Government from France, Mexico and Texas 
 by purchase, cession and annexation, respectively, comprising all 
 the lands now within the jurisdiction of the United States between 
 the Mississippi river and the Pacific coast, said General Government 
 caused said lands to be explored and reported upon for the purpose 
 of ascertaining the natural resources and the physical and climatic 
 characteristics of the various portions thereof, and by said explora- 
 tions and information obtained from time to time, it become known 
 to the United States and the inhabitants thereof that from about 
 
IfiE STATE OF COLORADO ET AL. 
 
 15? 
 
 the 97th meridian to the coast range of the Pacific slope, the land 
 was an arid waste without timber of useful vegetation, except in the 
 mountains, and that although the soil was rich and fertile, and great 
 deposits of gold, silver and other valuable minerals existed therein, 
 the soil could not be made productive nor the minerals extracted, 
 nor could the land be inhabited, except by the diversion of water 
 from the natural streams and the application thereof to agricultural 
 and mining uses, and that in that portion of said domain which 
 lay south of the Arkansas river, and which had formerly been a 
 part of Mexico, the laws, customs and usages there prevailing au- 
 thorized and sanctioned the diversion and use of water for agricul- 
 tural and other useful purposes in contravention of any right of the 
 riparian owner to have such water continually flow in its natural 
 channel. 
 
 3. With the earliest settlement in said arid region for agricultural 
 and mining purposes, which was long prior to the opening of said 
 lands to preemption and purchase, by necessity, common consent 
 and uniform practice, the doctrine obtained that the waters of all 
 the natural streams flowing through said arid region were subject to 
 diversion and use for agricultural and mining purposes, and that 
 the right to the water thus diverted could be obtained both as against 
 the United States as the owner of the public lands and all grantees 
 of the United States of lands lying along said streams, and that the 
 right of the several appropriators from any given stream should be 
 in the order of diversion and use, the first in time being first in 
 right, and said doctrine has at all times been and now is the cus- 
 tomary and statute law of said arid region in respect to the natural 
 streams thereof. 
 
 With knowledge and in recognition of such right and custom of 
 the inhabitants of such and region to divert waters, and to appty the 
 same to beneficial and necessary uses, the United States, in its treaty 
 with Spain of February 22d, 1819, and afterwards in its treaty of 
 January 12th, 1828, with the United Mexican States, expressly stip- 
 ulated and provided, that the use of the waters of the Arkansas 
 river, and of certain other boundary streams should be common to 
 the respective inhabitants of both nations, parties to such treaties 
 respectively. 
 
 4. Upon the creation and admission of the several Territories and 
 States of said arid region, including Kansas, both as a Territory and 
 State, they recognized, approved and confirmed, and from thence 
 hitherto have enforced said doctrine, and rights to water by diver- 
 sion from the streams of said arid region have been maintained as 
 against all claims of riparian rights in conflict therewith. 
 
 5. The Government of the United States, long prior to the sale by 
 it of any of the public lands in the Arkansas valley, recognized and 
 approved said doctrine, and applied the same to said public lands, 
 and renounced and surrendered all riparian lights which it might' 
 have asserted in contravention of said doctrine, and from thence 
 hitherto has held and disposed of said lands subject to and in ac- 
 
m 
 
 stAf^ Ok kAftsAS Vs, 
 
 cordance with said doctrine, and lias at all times encouraged and 
 promoted the diversion and use of the water of the streams in said 
 arid region for agricultural and mining purposes, and by grants of 
 public money has aided in the construction of canals, ditches and 
 reservoirs and other appliances for the diversion, storage and use of 
 water, in the reclamation and cultivation of the public lands. 
 
 6. By an act of Congress, approved September 4, 1841, and by 
 subsequent acts relating thereto, the public lands, including the 
 lands in said arid region were declared subject to pre-emption and 
 homestead purchase, and. all persons desiring to avail themselves of 
 the provisions of said acts were required to make a settlement upon 
 the land in person and to inhabit and improve the same. It was 
 then, and at all times since has been well known to the General Gov- 
 ernment, and particularly to Congress and the executive depart- 
 ments having in charge the administration of said acts, that the pro- 
 visions thereof in respect to settlement, inhabitancy and improvement 
 could not be complied with in the pre-emption and purchase of arid 
 lands, except by the diversion of the waters of the streams upon the 
 public lands and the application thereof to domestic and irrigation 
 purposes in reliance upon the continuance of the right so to do in 
 accordance with said doctrine of appropriation. 
 
 7. By means of the diversion and use of the waters of said natural 
 streams, many million acres of the public lands in said arid region 
 have been settled upon, inhabited and improved and title thereto 
 obtained from the General Government; in the belief that by its 
 action and conduct in the disposition of its public lauds, the United 
 States had accepted and applied to said public lands the doctrine of 
 appropriation as hereinbefore set forth ; and there has been paid to 
 said General Government, on account of said lands so improved by 
 the diversion and use of water in accordance with said doctrine, up- 
 wards of twenty million dollars, and all of the lands in the valley of 
 the Arkansas in the State of Colorado, save and except certain Indian 
 lands, were settled upon and patents therefor obtained by proof of 
 the diversion and use of the waters of said Arkansas river in the 
 reclamation and improvement of said lands, said diversions so made 
 being those complained of and sought to be enjoined in and by the 
 bill of complaint herein. 
 
 8. The Territory of Kansas by its legislature, recognized and ap- 
 proved the said doctrine of appropriation, and in pursuance thereof 
 in 1859 authorized the St. Charles Town Company to divert the 
 waters of the South Platte river and Cherry creek, and the Moun- 
 tain Company to divert the waters of the Platte river, and the El Paso 
 Town Company to divert the waters of the tributaries of the Arkansas 
 river heading at Pike’s peak ; and in 1860 authorized the Capital 
 Hydraulic Company to divert for irrigation purposes all the waters 
 of the South Platte river and Cherry creek. And the State of Kan- 
 sas, by its legislature, has also recognized, approved and adopted 
 said doctrine ; an act of said legislature enacted in 1868, authoriz- 
 ing corporations to construct canals diverting water for irrigation 
 
STATE OF COLORADO ET At. 
 
 purposes; an act of the legislature enacted in 1886 providing that 
 the running waters of the State might be appropriated for pur- 
 poses of irrigation ; an act of said legislature enacted in 1891, pro- 
 viding that in all that portion of the State west of the 99th merid- 
 ian all natural waters, whether standing or running and whether 
 surface or subterranean, should be devoted first, to purposes of irri- 
 gation in aid of agriculture, subject to ordinary domestic uses; and, 
 second, to other industrial purposes, and might be diverted from 
 natural beds, basins or channels for such purposes and uses; and 
 another act enacted in 1895 providing for the development of the 
 land west of the 98th meridian by irrigation and regulating the dis- 
 tribution of water in the same manner as in Colorado. Said State 
 by said several acts renouncing and surrendering all rights it may 
 have had in said river or the lands adjacent thereto as riparian 
 owner in contravention of the right to divert the waters thereof for 
 irrigation in Kansas or Colorado. 
 
 And in reliance upon the approval and adoption of said doctrine 
 of appropriation by said State of Kansas, about five hundred miles 
 of large canals and ditches have been constructed in Kansas, west 
 of the 97th lheridian at a cost approximating two million dollars 
 and thereby the waters of said Arkansas river have been appro- 
 priated and applied to about one hundred and fifty thousand acres 
 of land in the valley of said river, in the State of Kansas. 
 
 9. By the act of Congress approved January 29th, 1861, admitting 
 Kansas into the Union, it was specifically provided that the State 
 should never interfere with the primary disposal of the soil within 
 the same by the United States, or with any regulations Congress 
 might find necessary for securing the title in said soil to bona fide 
 purchasers thereof, and that all laws of the United States not locally 
 inapplicable should have the same force and effect within said State 
 as in other States of the Union. 
 
 10. Following the admission into the Union of the State of Kan- 
 sas, said doctrine of appropriation was further recognized by Con- 
 gress as the law applicable to the public lands and the natural 
 streams thereof, including those in the State of Kansas, by the fol- 
 lowing acts : 
 
 An act approved July 26, 1866, by which it was provided that 
 whenever, by priority of possession, rights to the use of water for min- 
 ing, manufacturing or other purposes, have accrued and are recog- 
 nized according to local customs, laws and decisions, the owners 
 and possessors shall be maintained and protected in their rights; 
 
 An act approved July 9, 1870, in which it was provided that all 
 patents granted, or pre-emptions or homesteads allowed, should be 
 subject to any vested and acquired water rights or rights to ditches 
 and reservoirs used in connection with such water rights ; 
 
 An act approved March 3, 1877, known as “ the desert land act,” 
 which declared that all waters of all lakes, reservoirs and other 
 sources of supply upon the public land should remain and be held 
 free for the appropriation and use of the public for irrigation, min- 
 
160 
 
 THE STATIC OK KANSAS vS. 
 
 ing and manufacturing purposes, and in and by which it was also 
 provided that by the construction of canals and ditches and the ap- 
 plication of said waters to the irrigation of the public lands, the title 
 to said lands might thereby be obtained from the United States ; 
 
 An act approved March 3, 1891, confirming the rights of way over 
 the public lands in the arid region for canals and reservoirs for irri- 
 gation purposes ; 
 
 An act approved August 18, 1894, providing for the conveyance 
 to the several States in the arid region of such public lands as they 
 might reclaim and irrigate; 
 
 An act approved June 17, 1902, authorizing and undertaking the 
 construction of canals, ditches and reservoirs in the arid region, in- 
 cluding therein the State of Colorado and the western portion of 
 Kansas, whereby the waters of the public lands might be diverted 
 and used for irrigation purposes, and appropriating for that purpose 
 the proceeds of all moneys received from the sale of public lands in 
 the States of Colorado and Kansas. 
 
 Under and by virtue of said act approved March 3, 1877, which 
 was made applicable to lands in Colorado by an act approved March 
 3, 1891, several thousand acres of land in the Arkansas valley in 
 the State of Colorado, were reclaimed and irrigated, and the diver- 
 sions of water for said purposes are in part the diversions complained 
 of in the said bill of complaint. 
 
 11. Said doctrine was further recognized by Congress by the ap- 
 propriation, on October 2d, 1888, of $229,000 for the purpose of in- 
 vestigating the extent to which the arid region of the United States 
 might be redeemed by irrigation and for the segregation of the 
 irrigable lands in such arid region, and for the selection of sites for 
 reservoirs and other hydraulic works necessary for the storage and 
 utilization of water for irrigation, and also by a further appropria- 
 tion made on March 2d, 1889, of $450,000 for the like purpose, all of 
 which moneys were expended in investigating and selecting reser- 
 voir sites and in running contour lines for the purpose of aiding and 
 assisting those desiring to appropriate the waters of the natural 
 streams and using the same for irrigating purposes. 
 
 12. The provisions of the constitution of the State of Colorado set 
 forth and complained of in the bill of complaint, were adopted in 
 harmony with and in pursuance of the policy of the United States 
 in respect to the diversion and use of water in the irrigation of land, 
 and the same do not conflict with or contravene any act of Congress 
 bearing upon said appropriation and use, but, on the contrary, are 
 intended as a constitutional guaranty that the right to divert water 
 for beneficial purposes as authorized and encouraged by the acts of 
 Congress referred to shall never be denied, and said provisions were 
 accepted and approved by the action of Congress in admitting Colo- 
 rado into the Union, and the several acts of the legislature of Colo- 
 rado, referred to in said bill of complaint, have been enacted for the 
 purpose of protecting and regulating appropriations made in pur- 
 suance of the usages and customs prevailing in the arid region and 
 
TftE STATE OF COLORADO ET AL. 
 
 16.1 
 
 the rights of appropriation as recognized and confirmed by the acts 
 of Congress referred to. 
 
 13. All grants and patents of land in the valley of the Arkansas, 
 in the State of Kansas, were made by the United States, subject to 
 the doctrine of appropriation heretofore set forth, and were accepted 
 by the several grantees thereof with the knowledge that in the sale 
 and disposition of the arid lands of the United States along said 
 Arkansas river west of the 97th meridian, it had been and would be 
 necessary to divert and use the waters of said river in the improve- 
 ment and cultivation thereof, and said grants and patents of lands 
 in the State of Kansas were made subject to the right of all persons 
 desiring the use of the same for agricultural purposes to appropriate 
 the waters of the Arkansas river, either in Kansas or Colorado, to 
 the full extent of said river, and all patents granted and all pre- 
 emptions and homesteads allowed of lands in the valley of the 
 Arkansas in the State of Kansas subsequent to July 9th, 1870, in- 
 cluding in particular the lands described in the bill of complaint 
 situated in Ford county, conveyed to said State of Kansas by the 
 United States on the 13th day of June, 1889, and the lands in Reno 
 county described in said bill of complaint conveyed to the said State 
 of Kansas at divers times subsequent to said 9th day of July, 1870, 
 were, by the act of Congress of July 9th, 1870, made subject to all 
 water rights in said river and rights of ditches and reservoirs in 
 connection therewith acquired in accordance with the local customs, 
 laws and decisions of Colorado. 
 
 III. 
 
 This defendant for further answer saith, 
 
 That at all times, the State of Kansas, and the inhabitants thereof, 
 well knew that, commencing in said State at about the 97th meridian, 
 and thence continuing westward to the Rocky mountains, the land 
 was arid and incapable of being settled upon or cultivated, except 
 by the diversion and use of the waters of the natural streams, and 
 that diversions of the waters of the Arkansas river were being made 
 for the purpose hereinbefore set forth, and that such diversions were 
 made under a claim of right to the continued use of the waters of 
 said river as against all owners of land in the valley of the Arkansas 
 throughout its entire length, and that the settlement of said valley 
 in the State of Colorado and the expenditure of amounts aggregat- 
 ing many millions of dollars in the construction of canals, ditches 
 and reservoirs, and in lands, buildings and improvements, and in 
 houses, stores, factories, and public and private buildings, w T as made 
 in reliance upon the right to divert the waters of said river and to 
 continue such diversion in perpetuity. 
 
 Prior to the filing of the bill of complaint herein, neither the State 
 of Kansas, nor the owners of lands in the Arkansas valley in said 
 State, complained of said diversions, nor the right to make or con- 
 tinue the same, nor in any way or manner claimed or alleged any 
 right upon the part of said State, or the owners of land in said val- 
 11—7 
 
1’liE S'i'ATE OF KANSAS VS. 
 
 ini 
 
 ley, to the flow of said river as it had been accustomed to flow prioi* 
 to the making of said appropriations; but, on the contrary, the said 
 State approved the diversion of water from said river and affirmed 
 the right to make the same in the reclamation and irrigation of the 
 lands along said river, by an act of the legislature of said State, en- 
 acted in 1886, authorizing and providing for the like diversion and 
 use of the waters of said river in the State of Kansas, and by a 
 further act, enacted in 1891, declaring that in that portion of the 
 State of Kansas west of the 99th meridian all natural waters, whether 
 running or standing, aud whether surface or subterranean, should 
 be devoted, first, to the purposes of irrigation in aid of agriculture ; 
 and, second, to other industrial purposes, and that said waters might 
 be diverted from natural beds and channels for such purposes and 
 use, and the owners of land in said valley in said State recognized 
 and approved said appropriations, and the right to continue the 
 same, by themselves constructing above five hundred miles of canals 
 and ditches, and diverting the waters of said river for the irrigation 
 of about one hundred and fifty thousand acres of land, and claimed 
 the right so to do as against all owners of lands along the course of 
 said river in Kansas or elsewhere. 
 
 The said State of Kansas and the owners of land in the valley of 
 the Arkansas, in said State, have at all times acqui-scied in the ap- 
 propriation of the waters of the Arkansas river in the State of Colo- 
 rado, and have waived, surrendered and relinquished any and all 
 riparian rights now claimed by them, and by their delay in the filing 
 of the complaint herein have caused the several appropriators of 
 water from said river in Colorado to make the expenditures herein- 
 before mentioned, and the people in said valley to settle upon, im- 
 prove and cultivate the lands, and to build towns and cities, and for 
 that purpose to expend the sums hereinbefore mentioned ; and they 
 are now estopped, by their conduct and delay, from asserting or 
 maintaining any of the rights claimed in the said bill of complaint, 
 and each and every owner of land in said valley in the State of 
 Kansas who might claim rights adverse to the appropriations of 
 water from said river in Colorado, are by the statutes of said State 
 of Kansas barred from asserting such rights as against ditches and 
 canals constructed and appropriations made in the State of Colorado 
 fifteen years or more prior to the filing of the bill herein. 
 
 This defendant, now having fully answered all the allegations in 
 the plaintiff’s amended bill of complaint, or so much thereof as the 
 defendant is advised should be answered, asks to be h ence dis- 
 missed with its cost and charges in this behalf sustained. 
 
 f Seal of the Fort Lyon Canal Company, Las Animas, Colo., I 
 
 \ Incorporated 1897. J 
 
 CHAS. E. CAST, 
 
 H. L. LUBERS, 
 
 Solictors for the Fort Lyon Canal Company, Defendant. 
 
I'HE STATE OE COLORADO ET At. 
 
 163 
 
 [Endorsed :] Supreme Court U. S. October term, 1903. Term 
 No. 7, original. The State of Kansas, complainant, vs. The State of 
 Colorado et al. Answer of Fort Lyon Canal Compan}^ to amended 
 bill. Filed Nov. 2, 1903. 
 
 In the Supreme Court of the United States. 
 
 The State of Kansas, Complainant, 
 vs. 
 
 The State of Colorado, The Rocky Ford 
 Canal, Reservoir, Land, Loan and Trust 
 Company, The Catlin Consolidated Caual 
 Company, The Oxford Farmers’ Ditch 
 Company, The Lake Canal Company etal., 
 Defendants. 
 
 Original Proceeding 
 No. 7. 
 
 Joint and several answer of the defendants. The Rocky Ford 
 Canal Reservoir, Land, Loan and Trust Company, The Cat- 
 lin Consolidated Canal Company, The Oxford Farmers’ Ditch 
 Company, and The Laguna Canal Company (in the amended bill 
 by mistake called The Lake Canal Company), to the amended 
 bill of complaint of the State of Kansas. 
 
 Fred A. Sabin, solicitor of the Rocky Ford Canal, Reservoir, 
 Land, Loan and Trust Company, the Catlin Consolidated Canal 
 Company, the Oxford Farmers’ Ditch Company, the Laguna Canal 
 Company. 
 
 In the Supreme Court of the United States. 
 
 The State of Kansas, Complainant, 
 vs. 
 
 The State of Colorado, The Rocky Ford 
 Canal, Reservoir, Land, Loan and Trust 
 Company, The Catlin Consolidated Canal 
 Company, The Oxford Farmers’ Ditch 
 Compan 3 % The Lake Canal Company et al., 
 
 Defendants. 
 
 Joint and several answer of the defendants, The Rocky Ford Canal, 
 Reservoir, Land, Loan and Trust Company, The Catlin Consoli- 
 dated Canal Company, The Oxford Farmers’ Ditch Company, and 
 The Laguna Canal Company (in the amended bill by mistake 
 called The Lake Canal Company) to the amended bill of com- 
 plaint of the State of Kansas, complainant. 
 
 These defendants, and each of them, now and at all times here- 
 after saving to themselves all and all manner of benefit or advan- 
 tages of exception or otherwise that can or may b« had or taken to 
 
 Original Proceeding 
 No. 7. October 
 Term, 1903. 
 
164 
 
 THE STATE OF KANSAS VS. 
 
 the many errors, uncertainties and imperfections in the said bill 
 contained, for their joint and several answer thereto, or to so much 
 thereof as they are advised it is material or necessary for them to 
 answer to, answering, say : 
 
 I. 
 
 1. These defendants admit that the rise, course, drainage area and. 
 general physical characteristics of the Arkansas river and of the 
 valley thereof, except as hereinafter set forth, are as stated in said 
 amended bill of complaint. 
 
 2. These defendants deny that the said Arkansas river is in fact, 
 or within the laws or departmental rules and regulationsof the United 
 States, a navigable stream either within the State of Colorado or the 
 State of Kansas. 
 
 3. These defendants deny that any diminution of the flow of said 
 river from the State of Colorado into the State of Kansas is wholly 
 or mainly attributable to the diversion of the waters of said river in 
 the State of Colorado; and deny that the normal flow of said river 
 at the State line, in the absence of irrigation, for ten months, or for 
 any considerable period during the year, is upward of two thousand 
 cubic feet per second, or any amount in excess of five hundred cubic 
 feet per second. 
 
 4. These defendants admit that the ordinary and usual rainfall 
 in the valley of said river west of the 98th meridian is inadequate 
 for the growing and maturing of cultivated crops ; and allege that 
 in that portion of the State of Kansas the inhabitants thereof have 
 resorted to and are now practicing the method of appropriating the 
 water from said river and using the same for the irrigation of lands 
 that for more than forty years has been practiced in the State of 
 Colorado. 
 
 5. These defendants deny that from time immemorial, or at all, 
 the waters of said river have flowed through underlying sand and 
 gravel extending in width under the entire valley of the Arkansas 
 river or any material portion thereof; and den} 7 that any part of the 
 course and flow of said river is beneath the surface of the bottom 
 lands of the valley, or that the course or flow thereof is of any greater 
 width than the channel of said river between its banks, or that there 
 is any underflow of water coextensive with the valley of said river 
 passing from the State of Colorado into the State of Kansas or in or 
 through said State of Kansas; and these defendants deny that the 
 alleged underground waters of said river furnish sufficient moisture 
 to grow ordinary farming crops in the absence of rainfall, unless 
 supplemented by water applied by a system of irrigation such as is 
 in use in Colorado and in the western part of Kansas. 
 
 6 These defendants deny that the flow of the river or the under- 
 ground waters, to any appreciable extent, tends to cool or moisten 
 the surrounding atmosphere, promote the growth of vegetation, en- 
 hance the value of lands or conduce directly or materially to the 
 public health or the habitability of the valley ; and allege that such 
 
THE STATIC OF COLORADO ET AL. 
 
 165 
 
 results throughout the arid and semi-arid portions of Kansas can be 
 produced only by the diversion of water from the river and the ap- 
 plication of the same by a system of irrigation to the adjoining 
 lands, and the cultivation thereof. 
 
 7. These defendants deny that the value of lands in the valley of 
 the Arkansas in said State of Kansas is in any degree dependent 
 upon the natural and normal flow of water in said river, and deny 
 that the acts alleged to have been done by this defendant are wrong- 
 ful ; and deny that by reason of said alleged wrongs, or otherwise, 
 the value of lands in the valley of the Arkansas river in the State 
 of Kansas has been diminished in anv sum whatever, or that the 
 revenue of the State of Kansas arising therefrom has been or will be 
 in any wise injuriously affected. 
 
 8. These defendants admit the acquisition bv the State of Kansas 
 of the lands mentioned in said bill of complaint and the convey- 
 ance of certain portions thereof to the grantees mentioned therein ; 
 and allege that all of said lands so acquired by said State of Kansas 
 and held by its grantees, as well as all lands acquired by settlers by 
 homestead, pre-emption or purchase, were at all times, and are now, 
 subject to the riparian rights of other proprietors of lands in the 
 valley of the Arkansas higher up said stream and to the right of 
 other proprietors of land in said valley to appropriate the waters of 
 said river and use the same in the irrigation thereof both in Colo- 
 rado and western Kansas. 
 
 9. These defendants deny that the Arkansas river is now, or at 
 any time has been, a navigable stream in the State of Kansas, or 
 treated as such, or that the title to the bed of said river in the State 
 of Kansas ever passed to said State, or that said State now is or ever 
 has been the owner thereof or entitled to the control thereof, or has 
 ever attempted to control the same save and except as by an act of 
 the legislature of the State of Kansas, passed in 1886, it declared 
 that the right to the use of running water flowing in a river or 
 stream of Kansas, for the purposes of irrigation, might be acquired 
 by appropriation; and by a like act, passed in 1891, declared that 
 in that portion of the State west of the 99th meridian, all natural 
 waters, standing or running, should be devoted first to purposes of 
 irrigation in the aid of agriculture, subject to ordinary domestic 
 uses ; and secondly, to other industrial uses, and that the same might 
 be diverted from the natural beds, basins or channels for such pur- 
 poses and uses; and as, by a like act subsequently passed, it en- 
 larged and extended the right to use the natural waters of said State 
 for irrigation purposes eastward to the 98th meridian. 
 
 10. These defendants have no knowledge of the several convey- 
 ances or grants of land in the valley of said river in the State of 
 Kansas heretofore made by the Government of the United States, 
 except as hereinafter set forth, and aver that all of the conveyances 
 or grants referred to in said bill of complaint, including in particu- 
 lar the lands alleged to be owned by the State of Kansas, were made 
 subject to all rights to water from said river for irrigation purposes 
 
166 
 
 THE STATE OF KANSAS YS. 
 
 theretofore and thereafter to be acquired, and were taken with full 
 knowledge on the part of said State of Kansas, and by each and every 
 grantee of said lands, that the waters of said river had been, were 
 being and would be appropriated in the State of Colorado for bene- 
 ficial uses in the irrigation of land, and that the laud in said valley 
 in the State of Kansas west of the 98th meridian and in the State of 
 Colorado could only be made available for agricultural purposes bs r 
 like appropriation and use, and that the Government of the United 
 States, as the primary owner of said lands, had assumed that it held 
 the same subject to the appropriation of the waters of said river for 
 irrigation purposes, and that all patents of land granted after July 
 9th, 1870, should be subject to all vested and acquired water rights 
 in or over said river. 
 
 11. These defendants deny that the lands alleged in said bill of 
 complaint to belong to the State of Kansas aud situated in the coun- 
 ties of Ford and Reno depend for their value for farming purposes 
 upon the flow of water in the bed of said river or upon the under- 
 flow beneath said land, or that they are entitled to the full, free and 
 natural flow of said waters which would naturally flow in said river 
 to or beneath said land ; and deny that the rights of the State of 
 Kansas as the owner thereof are prior or superior to the rights of 
 these defendants or of the lands irrigated by their canals as herein- 
 after more particularly set forth. 
 
 12. These defendants deny that the diversion of the waters of the 
 Arkansas river bv these defendants and the use thereof in the irri- 
 gation of the lands lying under their canals in any degree what- 
 ever diminishes the ordinary and usual flow of the water in said 
 State of Kansas, and on the contrary allege that, as a result of irri- 
 gation in the valley of the Arkansas in the State of Colorado, the 
 lands irrigated act as reservoirs for the storage of the ordinary and 
 usual flow of said river and of the flood and storm waters thereof, 
 returning the waters not used by plant life or lost by evaporation to 
 the bed of the river by the natural and ordinary process common 
 to lands having abundant rainfall, and the average flow of water 
 into said State of Kansas, outside of flood and storm periods, is 
 thereby increased instead of diminished. 
 
 13. These defendants deny that they are carrying any of the 
 waters of said river through their canals to lands not riparian to said 
 river in the sense given to the word “ riparian ” in the bill of com- 
 plaint, and allege that all of the lands under their said ditches and 
 canals are within the water shed of said river. 
 
 14. These defendants deny that when the Territory of Kansas was 
 created or the State of Kansas admitted to the Union, the water of 
 said Arkansas river was wholly unappropriated, or that the com- 
 mon law and the riparian rights claimed in said bill of complaint 
 extended over said valley in the State of Kansas, or that the owners 
 of lands along said river were entitled to the unimpeded flow of the 
 water of said river ; but on the contrary aver that numerous appro- 
 priations of said water had been made for irrigation purposes long, 
 
THE STATE OF COLORADO ET A L. 
 
 167 
 
 prior to the creation of said Territory and many more were made prior 
 to the conveyance by the Government of the United States of any of 
 the lands lying along or adjacent to said river, and that the necessity 
 and right to divert the water of said river for the reclamation of 
 arid land had, long previous to the creation of said Territory, been 
 asserted and exercised by persons in possession of said lands, and 
 said necessity and right were thereafter recognized by the legisla- 
 ture of the Territory of Kansas, and all lands along said river ac- 
 quired by the State of Kansas, or by individuals or corporations 
 within the Territory or State of Kansas, were taken and held with 
 full knowledge of the climatic conditions which made necessary the 
 diversion of the waters of the said river west of the 98th meridian, 
 and that appropriations had been, were being and would be made 
 west of the 98th meridian within the State of Kansas and Colorado, 
 and that to the extent of said appropriations the flow of water of said 
 river might, by the laws, usages and customs then prevailing, be 
 lawfully impeded. 
 
 15. These defendants deny that by their taking of water from said 
 river in the State of Colorado through their canals and the use 
 thereof in the irrigation of lands lying thereunder the State of Kan- 
 sas, or any of its citizens, or the owners of land along said river in 
 the State of Kansas, have been injured in any degree whatever, or 
 that the fertility of the lands or the use thereof to the fullest extent 
 to which the same are naturally capable of use, have been dimin- 
 ished or impaired, or that the crops, trees or vegetation growing 
 along said river have perished or will perish, or that the wells have 
 become or will become dry, or that the salubrity or healthful ness of 
 said valley, or of the lands adjacent to said river, have been or will 
 be impaired. 
 
 II. 
 
 These defendants, for further joint and several answer and defense 
 to the amended bill of complaint, say : 
 
 1. During the year 1869, the Ballow Hill Ditch Company, a cor- 
 poration, constructed an irrigating ditch, called “ the Ballow Hill 
 ditch,” in Pueblo county, Colorado, with its headgate located on the 
 north bank of the Arkansas river in section six (6), township two (2), 
 south of range sixty-two (62), west of the sixth principal meridian, 
 said ditch being about four miles in length. Said ditch was built 
 for the purpose of reclaiming and irrigating certain waste and arid 
 lands lying thereunder and riparian to said river, and on July 1, 
 1869, an appropriation of water from said river for said purpose was 
 made by said company to the amount of sixteen cubic feet of water 
 per second of time which said appropriation has been continuously 
 used since said date and to the present time. Thereafter, in the year 
 1885, said corporation enlarged said canal and extended the same 
 to a length of about twelve miles and, during the mouth of June, 
 1895 made a further appropriation of water from said river of thirty 
 cubic feet of water per second of time, which said appropriation has 
 been used continuously since that date to the present time. 
 
168 
 
 THIS STATIC OF KANSAS VS. 
 
 2. During the .year 1886 there was constructed another irrigating 
 ditch known as “the Allen ditch ” with its headgate located on the 
 south bank of the Arkansas river in the northeast quarter (N. E. J) 
 of section seventeen (17), township twenty-one (21), south of range 
 sixty-one (61), west of the sixth principal meridian in Pueblo county, 
 Colorado. Said ditch was about one and one-half miles long and 
 built for the purpose of irrigating and reclaiming certain waste and 
 arid lands which were riparian to the Arkansas river and located on 
 the south bank thereof. There was diverted from said river and 
 appropriated for the purpose of irrigating said lands through said 
 ditch, on the 1 1th day of March, 1886, two cubic feet of water per 
 second of time, and thereafter, in January, 1890, the further amount 
 of two and one-half cubic feet of water per second of time, both of 
 which appropriations have been continuously used since the} 7 were 
 originally made and up to the present time. 
 
 3. This defendant, The Rocky Ford Canal, Land, Loan and Trust 
 Company, was organized under the laws of the State of Colorado in 
 1889, for the purpose among other things, of acquiring and becom- 
 ing the owner of the right to appropriate and take water from the 
 Arkansas river and its tributaries and for the purpose of construct- 
 ing reservoirs for the impounding of said waters and a canal for the 
 delivery thereof to farmers and others living thereunder for the ir- 
 rigation of lands and for domestic purposes, each of the persons so 
 receiving water from said canal to be a stockholder therein and to 
 receive a certificate of stock entitling him to the use of a certain 
 portion of the water flowing through said canal. 
 
 4. Pursuant to the purposes of its organization this defendant, 
 The Rocky Ford Canal, Reservoir, Land, Loan and Trust Company, 
 in 1889, constructed and now owns a canal known as “the Rocky 
 Ford Highline canal,” the same being located on the south side of 
 the Arkansas river in the counties of Pueblo and Otero, in the State 
 of Colorado, with its headgate at the point of location of the head- 
 gate of the Allen ditch hereinbefore described. On the 6th of Jan- 
 uary, 1890, bv means of said canal, this defendant, The Rocky Ford 
 Canal, Reservoir, Land, Loan and Trust Company, appropriated 
 and diverted water from the Arkansas river to the amount of four 
 hundred twenty-two and one-half cubic feet per second, and applied 
 the same to beneficial uses for irrigation, to the lands under said 
 canal. Said canal is seventy-eight miles]long # and twenty feet wide 
 on the bottom at its headgate, and cost, in its original construction, 
 $225,000, and $78,000 more has been expended by its present 
 owner in improvements thereon and in thefipurchase of priorities, 
 since its original construction. 
 
 5. On March 23, 1896, the district court of Pueblo county, Colorado, 
 it having jurisdiction in the premises, in a matter there pending, en- 
 titled “In the matter of priority of water rights in district No. 14,” 
 decreed a priority for sixteen cubic feet of water per second, of date 
 July, 1869, and a further priority for thirty feet per second, of date, 
 June 1885, to be carried through the said Ballow Hill ditch, and, at the 
 
THE STATIC OF COLORADO ET AL 
 
 169 
 
 same time, decreed a priority for four hundred and twenty-two and 
 one-half cubic feet of water per second of time, to be carried through 
 the Rocky Ford Highline canal, two cubic feet thereof being of 
 date March, 1886, and four hundred and twenty and one-half cubic 
 feet thereof being of date January, 1890, all of which priorities the 
 defendant, The Rocky Ford Canal, Reservoir, Land, Loan and Trust 
 Company now owns. 
 
 6. During the year 1901 a decree of the district court of Pueblo 
 county, Colorado, was entered, adjudging and decreeing the trans- 
 fer of said rights of appropriation from the Ballow Hill ditch to 
 the Rocky Ford Highline canal, said decree having been made 
 under and by virtue of the provisions of an act of the General As- 
 sembly of the State of Colorado entitled “An act in relation to irri- 
 gation,” approved April 6, 1899. After the transfer of said priori- 
 ties said Ballow Hill ditch was abandoned and has not since been 
 used for irrigation purposes. 
 
 7. During the year 1884, the Catlin Land and Canal Company, 
 a corporation, constructed an irrigating ditch called “ the Catlin 
 ditch ” in Otero county, Colorado, with its headgate located on the 
 south bank of the Arkansas river at its confluence with the Api- 
 shapa river, one of its tributaries. Said ditch was built for the pur- 
 pose of reclaiming and irrigating certain waste and arid lands lying 
 thereunder and riparian to the Arkansas river, and, on the 3rd day 
 of December, 1884, an appropriation of water from said river for 
 said purpose was made by said company to the amount of two hun- 
 dred and forty-eight cubic feet per second, which said appropriation 
 has been continuously used since that date by said defendant and 
 its predecessor in title. 
 
 8. During the year, 1887, the Fairmount Lateral and Reservoir 
 Company, a corporation, constructed an extension of said Catlin 
 ditch, making said ditch as extended forty-eight miles long. Said 
 extension was built for the purpose of reclaiming and irrigating cer- 
 tain waste and arid lands lying thereunder and riparian to said river, 
 and on November 14, 1887, a further appropriation of water from 
 said river for said purpose was made by said company to the amount 
 of ninety-seven cubic feet per second, which said further appropria- 
 tion has been used continuously since that date by this defendant and 
 its predecessor in title. 
 
 9. This defendant, The Catlin Consolidated Canal Company, was 
 organized as a corporation under the laws of Colorado, November 7, 
 1892, for the purpose, among other things, of acquiring title to the 
 Catlin ditch and the said extension thereof and becoming the owner 
 of the rights of appropriation of the waters of said river belonging 
 thereto and for the purpose of delivering said water to farmers and 
 others living thereunder for the irrigation of lands and for domestic 
 and irrigation purposes. Pursuant to the purposes of its organiza- 
 tion said defendant, on the 27th day of December, 1892, purchased 
 said canal and the extension thereof, and all rights of appropriation 
 of water belonging thereto, and ever since has been and now is the 
 
170 
 
 THE STATE OF KANSAS VS. 
 
 owner thereof. In the construction of said canal and extension more 
 than $100,000 lias been expended by said defendant and its prede- 
 cessors in title. 
 
 10. In the year 1867, the predecessor in title of this defendant, The 
 Oxford Farmers’ Ditch Company, constructed an irrigating canal in 
 Pueblo county, Colorado, on the south bank of the Arkansas river, 
 having its lieadgate in section thirty-one (81), township twenty-one 
 (21), south of range sixty (60), west of the sixth principal meridian, 
 said canal being known as the “Enterprise ditch,” and, on the 1st 
 day of March, 1867, appropriated water to the amount of twenty-eight 
 cubic feet per second from said river and applied the same to the 
 lands lying under said canal for irrigation purposes, which said ap- 
 propriation of water has been used continuously by this defendant 
 and its predecessor in title since it was originally made and until the 
 present time. 
 
 11. During the year, 1887, the predecessor in title of the defend- 
 ant, The Oxford Farmers’ Ditch Company, constructed a certain irri- 
 gating canal known as “ the Oxford Farmers’ ditch” in Pueblo and 
 Otero counties, in the State of Colorado, using the line of the said 
 “Enterprise ditch ” and straightening, enlarging and extending the 
 same, the headgate thereof being located at the point of location of 
 the headgate of the said “ Enterprise ditch ” and, on the 26th day of 
 February, 1887, appropriated an additional one hundred and sixteen 
 cubic feet of water per second from the Arkansas river by means of 
 said canal and applied the same to lands lying thereunder, which 
 said appropriation of water has been used continuously since that 
 date and until the present time by this defendant and its predecessor 
 in title. 
 
 12. This defendant, The Oxford Farmers’ Ditch Company, was 
 organized as a corporation under the laws of Colorado, on the lltli 
 day of October, 1888, for the purpose, among other things, of owning 
 and operating a canal for the purpose of conveying waters from the 
 Arkansas river for use by the stockholders of said company in irri- 
 gating the lands under said canal, and, pursuant to the purposes of 
 its organization, during the year 1888, it became the owner of the 
 said “Oxford Farmers’ ditch ” and all its rights to appropriate 
 water from said river, and has been and now is the owner thereof. 
 There has been expended in the construction of said ditch by its 
 present owner and its predecessor in title over $60,000. 
 
 18. During the year 1889 one Henry R. Holbrook commenced the 
 construction of an irrigating canal called the “Lake canal” in 
 Otero county, Colorado, with its headgate located on the north bank 
 of the Arkansas river in section twenty-four (24), township twenty- 
 two (22), south of range fifty-eight (58), west of the sixth principal 
 meridian. Said ditch is about twenty-five miles in length and has 
 a carrying capacity of five hundred and fifteen cubic feet of water 
 per second, and was built for the purpose of reclaiming and irrigat- 
 ing certain waste and arid lands lying thereunder. Of date the 
 25th day of September, 1889, appropriations of water from said river, 
 
THE STATE OF COLORADO ICT AL. 
 
 171 
 
 for said purpose, have been made by means of said canal, to the 
 amount of five hundred and fifteen cubic feet per second, and the 
 appropriations so made have been used continuously until thepresent 
 time. 
 
 14. This defendant, The Laguna Canal Company, was organized 
 as a corporation under the laws of Colorado July 11, 1892, for the 
 purpose, among other things, of acquiring and becoming the owner 
 of the Lake canal and of the reservoir sites and rights to appropriate 
 and take the waters of the Arkansas river and its tributaries, be- 
 longing thereto, and also for the purpose of constructing reservoirs 
 for impounding said waters, the same to be delivered to farmers 
 and others living under said canal, for the irrigation of lands and 
 for domestic purposes. Pursuant to the purposes of its organiza- 
 tion, said defendant in 1892 purchased said canal and all reservoir- 
 sites and rights of appropriation of water belonging thereto and is 
 now the owner thereof. 
 
 15. During the year 1894 this defendant, The Laguna Canal Com- 
 pany, developed and constructed a reservoir called “ Reservoir num- 
 ber one,” the same being fed from the Arkansas river by means of 
 the Lake canal. Water is delivered from said reservoir to lands 
 thereunder for purposes of irrigation by means of an outlet canal 
 about fourteen miles in length. The cost of said canal, reservoir 
 and outlet canal was $150,000. 
 
 16. The Rocky Ford Highline canal, the Catlin ditch and the 
 Oxford Farmers’ ditch are situated on the south bank of the 
 Arkansas river in the counties of Pueblo and Otero, in the State of 
 Colorado, and covers an area of about two hundred square miles, 
 said area having a population of more than eight thousand people. 
 Prior to the construction of said canals said lands were an arid and 
 barren waste fit only for grazing purposes, the amount of rainfall in 
 said locality being insufficient for the cultivation of crops and in- 
 sufficient to render said territory habitable. Since the construction 
 of said canals all of said territory, except that portion thereof, the 
 topography of which renders it non-irrigable, has been reclaimed 
 and redeemed from its former arid and barren condition by the ap- 
 plication of water from said river and its use in irrgating said lands 
 and cultivating the same and in growing crops thereon. 
 
 17. With the construction of said canals settlers began to locate on 
 said lands and to acquire title thereto and cultivate the same and 
 to build homes, set out orchards and make other permanent improve- 
 ments. Cities and towns sprung up, and the city of Rockyford 
 and the towns of Manzanola and Fowler are now located in said ter- 
 ritory. The city of Rockyford is a city of the second class, created 
 such under the laws of Colorado, and has a population of about 
 twenty-five hundred people. In it are located many churches and 
 school houses and other public buildings. Residences and business 
 houses have been constructed and a factory for the manufacture of 
 beet sugar was erected at an expense of about $750,000, in the year 
 1900. 
 
172 
 
 THE STATE OF KANSAS VS. 
 
 18. The towns of Manzanola and Fowler are incorporated under 
 the laws of Colorado, each with a population of about four hundred 
 and fifty people and in them are also located school houses, churches 
 and many residences and business houses. The said city of Rocky- 
 ford and the said town of Manzanola are in part dependent upon 
 the Rocv FordHighline canal and the Catlin ditch for their water 
 supply for domestic purposes, and said municipalities are owners of 
 water rights in said canals and use the same continually for the 
 purpose of supplying their inhabitants with water. Property val- 
 ues to the amount of three and one-half millions of dollars have 
 been created under said canals by means of the construction thereof 
 and the use of the same in applying water to said lands. The lands 
 have become fertile and productive and capable of yielding and do 
 yield, annually, abundant crops of fruit, grains, alfalfa, sugar beets, 
 melons and other vegetables. The value of said property depends 
 entirely upon the right to divert the waters from said river and ap- 
 ply the same to agricultural and domestic purposes and if these 
 defendants are enjoined from diverting and delivering said water, 
 the communities under said ditches will be depopulated and de- 
 stroyed, said improvements rendered valueless and said lands return 
 to their former barren and unproductive condition. 
 
 19. Lying under said lake canal and said reservoir number one, 
 owned by this defendant, The Laguna Canal Company, and suscep- 
 tible of irrigation therefrom, are twenty-two thousand acres of land, 
 and water has been applied to seventeen thousand acres thereof for 
 the raising of crops. Prior to the construction of said canal and 
 reservoir said lands were waste and vacant lands, but by means of 
 the construction of said canal and the use thereof, in applying the 
 waters of said river to the lands lying thereunder, said lands have 
 been rendered fertile and productive, and large crops of fruit, grain, 
 alfalfa, melons, sugar beets and other vegetables are raised annually 
 thereon; school houses, churches, dwelling houses and other build- 
 ings have been built; and there are now living under said canal 
 and dependent thereon for their water supply for domestic and irri- 
 gation purposes six hundred people, who have created property 
 values by means of said canal to the amount of over six hundred 
 thousand dollars. The value of said property depends entirely upon 
 the right to divert water from said river and apply the same to said 
 lands for agricultural and domestic purposes ; and if this defendant, 
 The Laguna Canal Company, is enjoined from diverting and deliv- 
 ering said water, the community under said ditch will be destroyed, 
 said improvements rendered valueless and said lands return to their 
 former barren and unproductive state. 
 
 20. The said canals were constructed and used in appropriating 
 and applying waters from the Arkansas river for irrigation purposes 
 and said lands were settled and said property values created by 
 these defendants, their predecessors in title and the settlers on said 
 lands, in reliance upon the laws, customs and usages prevailing in 
 the States of Kansas and Colorado respecting the diversion and use 
 
TftE STATE OF COLORADO ET At. 
 
 ITS 
 
 of the waters of said States, and in the belief that it was the desire 
 and policy of said State of Kansas and of the inhabitants and owners 
 of lands in the valley of the Arkansas in said State, that the lands 
 in said valley should be reclaimed and made fruitful and produc- 
 tive by irrigation, and in the further belief that all claims to ripa- 
 rian rights, contrary to or in derogation of the right to divert waters 
 of said river for irrigation purposes had been surrendered and re- 
 linquished by said State and by the several owners of lands in said 
 valley. 
 
 21. For many years prior to 1882 it was believed and generally 
 claimed by the people living in the valley of the Arkansas river in 
 Kansas and Colorado that there was sufficient rainfall for the culti- 
 vation of crops throughout the said valley in Kansas and for many 
 miles westward into Colorado. Following the year 1882 and until 
 the construction of ditches, canals and reservoirs for irrigation pur- 
 poses there was a constant failure of crops due to the insufficient 
 rainfall, and a large part of the population, which had settled along 
 said river on the strength of the erroneous supposition that the rain- 
 fall was sufficient for the cultivation of crops, moved away. The 
 people of the State of Kansas realizing that the lands which had 
 been settled upon were so destitute of moisture and the rainfall so 
 slight as to render them incapable of being cultivated, and that only 
 by diversion and application of the waters of the Arkansas river 
 could agriculture be pursued in western Kansas, induced legislation 
 upon the subject and the Kansas legislature, at i-s session in 1886, 
 for the purpose of authorizing and allowing the diversion and use 
 of the waters of said river for the purpose of reclaiming said lands, 
 passed an act concerning irrigation in which it was declared that 
 “ the right to the use of running water flowing in a river or stream 
 in this State, for the purpose of irrigation, may be acquired b}^ ap- 
 propriation.” 
 
 22. In reliance upon said act of the legislature certain canals 
 were constructed in eastern Colorado and extended into Kansas and 
 certain other canals were constructed lying wholly in the State of 
 Kansas, in the counties of Hamilton, Kearney, Finney, Gray, Ford, 
 Edwards, Pawnee and Barton, for the diversion of the surface and 
 underflow waters of said river and the application thereof to ripa- 
 rian and non-riparian lands in the valley of said river, in the irri- 
 gation and cultivation thereof, most of said ditches being owned by 
 residents and citizens of the State of Kansas, but some of them 
 being owned jointly by residents and citizens of Colorado and resi- 
 dents and citizens of Kansas, and said residents and citizens of 
 Kansas are persons whose alleged rights are claimed by the amended 
 bill of complaint herein to have been impaired by the diversion of 
 the waters of said river in Colorado by this defendant and others. 
 
 Among the canals so constructed was one known as “ the Dodge 
 City canal,” covering the land in the county of Ford alleged in the 
 bill of complaint to have been conveyed in 1889 to the State of 
 Kansas by the Government of the United States to be used as a sol- 
 
m 
 
 S^ATE OF JtAftSAfc V& 
 
 diers’ home, and also covering other lands along said rivet for a dis- 
 tance of about thirty miles. Said land in Ford county alleged to 
 belong to the State of Kansas was also covered by another canal 
 known as “the Eureka canal,” commencing at the town of Ingalls 
 and extending thence eastward about ninety miles. 
 
 23. All of the ditches and canals above referred to, as these de- 
 fendants are informed and believe, have diverted and carried water 
 for the irrigation of the lands lying thereunder when obtainable, 
 and the owners of said lands have used the waters so diverted in 
 the irrigation and cultivation thereof, and have at all times dis- 
 claimed and renounced any and all rights they might have to the 
 continuous flow of the surface or underflow of waters of the said 
 Arkansas river in contravention of the right to divert and apply the 
 same to riparian and non-riparian lands in said valley, and the re- 
 spective owners of said ditches and canals and of the riparian and 
 non-riparian lands thereunder are, as these defendants respectfully 
 suggest, necessary parties to an} 7 determination of the right of these 
 defendants to divert and use the waters of said river as they and 
 their grantors have been accustomed to do for many years last past. 
 
 24. The construction of the canals now owned and operated by 
 these defendants and of other canals in Colorado and of the said 
 canals in Kansas, and the reclamation and cultivation thereby of 
 the arid and semi-arid lands in the State- of Colorado and Kansas 
 were well known to the owners of riparian and non-ripariau land 
 throughout the entire valley of the Arkansas in Kansas; detailed 
 accounts of the same were published in all the papers issued in the 
 various towns in said valley and from time to time excursions were 
 taken by many of the people of said valley to inspect and report 
 upon the irrigation system in vogue in Colorado and in particular 
 the ditches in and about Rocky Ford where the canals belonging to 
 these defendants are located and the owners of non-irrigable lands 
 in said valley were constantly moving to and settling upon lands 
 under said canals and ditches in Colorado and Kansas. 
 
 25. Since the year 1886, at intervals to'the present time, conven- 
 tions of the owners of riparian and non-riparian lands in said valley 
 and the citizens thereof have been called and held at towns and 
 cities in said valley in Kansas and Colorado to consider and devise 
 methods for extending the system of irrigation used by said canals 
 in Kansas and in Colorado and full reports of the progress of irri- 
 gation in the valley of the Arkansas river in Colorado have at all 
 times been made to said conventions and of the taking of said water 
 from the said river in the State of Colorado and the taking of said 
 water by said canals in Colorado has been at all times acquiesced 
 in, approved and the right to do so confirmed. 
 
 26. On February 14, 1889, the Senate of the United States adopted 
 a resolution that a special committee of seven Senators be appointed 
 by the President of the Senate, to be known as“ the special commit- 
 tee on the irrigation and reclamation of arid lands,” whose duty it 
 should be to consider the subject of irrigation and to investigate and 
 
THE STATE OF COLORADO ET AL. 
 
 m 
 
 Teport upon the best mode of the reclaiming public lands of the 
 United States. Said committee was duly appointed and afterwards 
 held sessions at various points in the valley of the Arkansas river 
 in Kansas, at which sessions it was represented to said committee 
 by the owners of lands along said river that the greater portion of 
 said valley was incapable of being cultivated except by irrigation. 
 That the lands had been taken up by settlers during a cycle of suf- 
 ficient rainfall to admit of their cultivation and the Government of 
 the United States had received the price of said lands in the belief, 
 on the part of the settlers, that the same was susceptible of cultiva- 
 tion ; that it had been found that the rainfall was insufficient to 
 grow crops and that many of those claiming title from the Govern- 
 ment had been compelled to leave the country and that the remainder 
 were too poor to construct the irrigation works necessary to cultivate 
 said lands. Constant reference was made to the ditches and canals 
 which had been constructed in the State of Colorado and the bene- 
 ficial effect secured by the irrigation of lands in said State. No ob- 
 jection or protest was made to the diversion of waters in Colorado 
 nor was any claim made that the waters of said river should con- 
 tinue to flow from the State of Colorado into the State of Kansas as it 
 had formerly done, but, on the contrary, it was urged that the Gov- 
 ernment should build, or aid in building, reservoirs in the moun- 
 tains in Colorado in which to impound and store the waters of said 
 river, that the same might thereafter be carried down said river for 
 use in the irrigation of lands in Colorado and Kansas. 
 
 27. That since the year 1891 conventions of irrigators and owners 
 of land in the arid West have been held at Salt Lake City, Los An- 
 geles, Denver and other cities. Delegates to said conventions have 
 been sent by the governor of Kansas and most of said delegates 
 were selected from the valley of the Arkansas river and appeared 
 in said conventions as special representatives of the owners of lands 
 in said valley. At the convention held in Salt Lake City in Sep- 
 tember, 1891, delegates from the State of Kansas were instrumental 
 in securing the adoption of resolutions memorializing Congress and 
 the Representatives of the States and Territories of the arid West to 
 secure appropriations for the construction of ditches and reservoirs 
 for the reclamation of the arid and semi-arid lands in Kansas and 
 other Western States and Territories by means of irrigation. At said 
 conventions said delegates from Kansas made particular mention of 
 the irrigation works constructed near Rocky Ford and elsewhere 
 along the Arkansas river in Colorado and the same were pointed 
 out in demonstration of what might be accomplished by irrigation, 
 and it was urged that like systems should, by Government aid, be 
 constructed in the valley of the Arkansas in Kansas. And it was 
 further urged that the Government should make an irrigation 
 survey of the lands in Kansas to aid those desiring to construct ir- 
 rigation ditches or canals therein. Like demands were urged by 
 delegates from the State of Kansas in other irrigation congresses 
 with the result that the Government of the United States was in- 
 
176 
 
 THE STATIC OE KANSAS VS. 
 
 dnced to and did make an irrigation or contour survey of the lands 
 in the valley of the Arkansas for the purpose of aiding in the ex- 
 tension of the irrigable area thereof. 
 
 28. On March 10, 1891, the legislature of the State of Kansas passed 
 an act by which it was provided that in that portion of Kansas west 
 of the 99th meridian, all natural waters whether surface or subter- 
 ranean, shall be devoted first to purposes of irrigation in the aid of 
 agriculture, subject to ordinary domestic uses, and secondly to other 
 industrial purposes, and for such purposes they may be diverted 
 from their natural channels. And it was provided by said act that 
 the methods in force in the State of Colorado with reference to the 
 use and sale of waters be adopted ; and thereafter, by an act of the 
 legislature, said statute was made applicable to all that portion of 
 Kansas west of the 98th meridian. On March 5, 1895, by another 
 act of said legislature, the board of irrigation survey and experi- 
 ment was created, which was required to conduct experiments in 
 irrigation in the State of Kansas. Thereafter, by another act of said 
 legislature, the office of commissioner of forestry and irrigation was 
 created and an appropriation was made for the maintenance of an 
 experimental station at which the value of irrigation and the best 
 methods thereof should be investigated, and thereafter the supreme 
 court of the State of Kansas decided, on the 6th day of July, 1901, 
 that the legislature of Kansas had, by the acts above referred to, 
 recognized the principle of irrigation in said State and made the 
 promotion of irrigation west of the 98th meridian a public use. 
 
 29. These defendants respectfully submit that the State ol Kansas 
 is not, as the owner or representative of the owners of lands in said 
 Arkansas valley in Kansas, entitled to the relief sought in the plain- 
 tiff’s amended bill of complaint against these defendants, because of 
 the acts, doings and conduct of the State of Kansas and the owners 
 of lands in said valley as above set forth, and by the delay of said 
 State in filing said bill, and by the failure of the owners of land in 
 said valley to assert the rights claimed in their behalf by said State, 
 these defendants and the owners of lands under their canals have 
 been induced to make large investments in reliance thereon, and 
 said State of Kansas is in equity and good conscience estopped from 
 now claiming any relief which would impair or destro}' said invest- 
 ments. 
 
 30. These defendants respectfully submit that aside from the laws, 
 usages and customs concerning irrigation prevailing in the States of 
 Colorado and Kansas the said lands under the canals belonging to 
 these defendants were and are riparian to said river and entitled by 
 the principles and doctrines of the common law claimed by the bill 
 of complaint herein to be applicable in both Colorado and Kansas, 
 to divert the waters of said Arkansas river and to use the same in 
 irrigation thereof, and that the use of said water on said lands for 
 all purposes necessary to making the same habitable and capable of 
 sustaining human life is a reasonable use authorized and protected 
 
TMe STATE OF COLORADO ET At. 17? 
 
 by the said principles and doctrines of the common law relied upon 
 by the complaint. 
 
 III. 
 
 These defendants, for further joint and several answer and defense 
 to the amended bill of complaint, say : 
 
 1. This defendant, The Rocky Ford Canal, Reservoir, Land, Loan 
 and Trust Company, is the owner of a certain irrigating canal situate 
 in Pueblo and Otero counties, in the State of Colorado, known as 
 “ the Rocky Ford Highline canal.” Said defendant and its pred- 
 ecessor in title have appropriated water from the Arkansas river to 
 the amount of sixteen cubic feet per second of date July 1, 1869, 
 thirty cubic feet per second of date June 1, 1885, and two cubic feet 
 per second of date March 11, 1886, and used the same continuously 
 since the said date for the irrigation of lands and said appropriation 
 now belongs to the said Rocky Ford Highline canal; that said de- 
 fendant has appropriated water from the Arkansas river to the 
 amount of four hundred and twenty-two and one-half cubic feet per 
 second of date January 6, 1890, and used the same continuously 
 since that date for the irrigation of lands and said appropriation now 
 belongs to the said The Rocky Ford Highline canal. 
 
 2. This defendant, The Catlin Consolidated Canal Company, is 
 the owner of a certain irrigating canal situated in Otero county, in 
 the State of Colorado, known as the “ Catlin ditch.” Said defendant 
 and its predecessors in title have appropriated water from the 
 Arkansas river to the amount of two hundred and forty-eight cubic 
 feet per second, of date December 3, 1884, and ninety-four cubic feet 
 per second of date December 14, 1887, and have used the same con- 
 tinuously since said dates for the irrigation of lands, and said ap- 
 propriations now belong to the said Catlin ditch. 
 
 3. This defendant, The Oxford Farmers’ Ditch Comparn^, is the 
 owner of a certain irrigating canal, situated in the counties of Pueblo 
 and Otero in the State of Colorado, known as the Oxford Farmers’ 
 ditch. Said defendant and its predecessors in title have appro- 
 priated water from the Arkansas river to the amount of twenty-eight 
 cubic feet per second of date March 1, 1867, and one hundred and 
 sixteen cubic feet of date February 26, 1887, and used the same con- 
 tinuously since said dates for the irrigation of lands, and said ap- 
 propriations now belong to the said Oxford Farmers’ ditch. 
 
 4. This defendant, The Laguna Canal Company, is the owner of 
 a certain irrigating canal, situated in Otero county, Colorado, known 
 as the “ Lake canal.” Said defendant and its predecessors in title 
 have made appropriations of water from the Arkansas river by means 
 of said canal to the amount of five hundred — fiteen cubic feet per 
 second, of date September 25, 1889, and used the same continuously 
 since the same was appropriated for the irrigation of lands, and said 
 appropriations now belong to the said Lake canal. 
 
 5. After the location of said Lake canal, the owner thereof, for the 
 \ purpose of availing himself of the provisions of the act of Congress 
 
 12 — 7 
 
i?8 
 
 THE STATE~OF KANSAS Vg. 
 
 of March 3, 1891, granting rights of way for irrigation canals 
 and reservoirs, filed with the register of the United Sates land 
 office for the district where said canal and reservoir were located, a 
 map of said canal and reservoir, which map was, on the 29th day of 
 April, 1892, approved bv the Secretary of the Interior, and there- 
 after the lands over and across which said canal extended were, 
 when conveyed by the Government, conveyed subject to said right 
 of way. 
 
 6. During the year 1890 the Government of the United States 
 caused certain surveys to be made in the valley of the Arkansas 
 river in the State of Colorado, for the purpose of investigating and 
 selecting reservoir sites and running counter lines for the purpose of 
 aiding and assisting those desiring to appropriate the waters of said 
 stream and its tributaries for irrigation purposes and the Govern- 
 ment of the United States in making such investigation and in 
 selecting reservoir sites surveyed and located a reservoir site in 
 township twenty-three (23), south of range fifty-five (55), west of the 
 sixth principal meridian in Otero county, Colorado, on the line of 
 said Lake canal, and caused to be filed in the office of the Secretary 
 of the Interior a report of said investigation, and surveys and maps 
 of said reservoir site, and caused the land included in said reservoir 
 site to be segregated and withdrawn from entry and filing except 
 as a reservoir site. 
 
 7. During the year 1894 this defendant, The Laguna Canal Com- 
 pany, developed and constructed the reservoir, the site of which had 
 been previously filed on, said reservoir being called “ Reservoir 
 number one.” Said reservoir is fed from the Arkansas river by 
 means of the Lake canal and is capable of holding when filled 
 185,011,890 cubic feet of water. Two thousand acres of land are 
 irrigated from said reservoir by means of an outlet canal built and 
 owned by this defendant, which said outlet canal is fourteen miles 
 long. 
 
 8. By means of the construction of said canals and said reservoir 
 man}^ thousand acres of land in the valley of the Arkansas river in 
 the State of Colorado, which prior to said construction was waste and 
 vacant land and fit only for grazing purposes, has been reclaimed, 
 cultivated and made fruitful and productive. Mail}' thousands of 
 people have located thereon and built their homes. Cities and 
 towns have sprung up and property values to the extent of many 
 millions of dollars have been created. 
 
 9. Prior to the construction of said canals but a small portion of 
 the lands lying in the territory thereunder had been filed on or sub- 
 jected to private ownership. With the construction of said canals 
 settlers from the arid parts of Colorado and Kansas began filing on 
 said Government lands and began to locate homes thereon. More 
 than four thousand three hundred acres of land lying in said terri- 
 tory were located and filed on by settlers and were finally patented 
 by the Government of the United States under an act of Congress 
 approved March 3, 1877, known as “ the desert land act.” Said 
 
tMtE STATE OF COLORADO ET AL. 
 
 179 
 
 lands Were patented on the strength of their having been reclaimed 
 by means of the construction of said canals and the application by 
 means of said canals of the waters of said river to the irrigation of 
 said lands and in each instance proof was required by the Govern- 
 ment of the United States of such reclamation and irrigation before 
 issuing patents to said lands. More than fifty thousand acres of 
 said lands were located and filed on by said settlers under an act of 
 Congress of May 20, 1862, known as “ the homestead law,” an act 
 of Congress of April 24, 1820, and acts supplemental thereto known 
 as “ the pre-emption law,” an act of Congress of March 3, 1873, 
 and subsequent acts, known as “ the timber culture act,” and 
 were finally patented by the Government of the United States. The 
 settlers availing themselves of the provisions of the pre-emption and 
 homestead purchase acts were required to make settlement on lands 
 in person and to inhabit and improve the same. At the time settle- 
 ment was made on said lands Congress and the executive depart- 
 ments having in charge the administration of such acts well knew 
 and at all times since said settlements were made they have well 
 known that the provisions of said acts with respect to inhabitancy, 
 settlement and improvement could not be complied with except by 
 the diversion of the waters of the Arkansas river and its tributaries 
 upon said lands and the application thereof to irrigation and do- 
 mestic purposes. 
 
 10. The said canals were constructed and used by these defend- 
 ants and their predecessors in title for the diversion of the w T aters of 
 said river in reliance upon the acquiescence of the United States in 
 the appropriation of such waters for irrigation purposes and upon 
 the acts of Congress with reference to reclaiming arid lands and ac- 
 quiring title thereto from the Government, in reliance upon long 
 standing local customs, laws and decisions of the States of Kansas 
 and Colorado by virtue of which customs, laws and decisions the 
 appropriator of water from natural streams first in time is considered 
 first in right and in reliance upon the recognition by the State of 
 Colorado of the right to appropriate the waters of said State includ- 
 ingthe waters of the Arkansas river for irrigation purposes. 
 
 11. P rior to parting with the title to any of the land between the 
 Mississippi river and the Pacific coast the General Government 
 caused said lands to be explored and reported upon for the purpose 
 of ascertaining the natural resources and the physical and climatic 
 characteristics thereof, whereby it became known to the Unied States 
 and the inhabitants thereof that from about the 98th meridian to 
 the coast range of the Pacific slope the land was an arid waste with- 
 out timber or useful vegetation, except in the mountains, and that 
 although the soil was rich and fertile, the same could not be made 
 productive nor inhabitable except by the diversion of waters in the 
 natural streams and the application thereof to agricultural purposes, 
 and that, in that portion of said domain which lay south of the Ar- 
 kansas river the laws, customs and usages prevailing, authorized and 
 sanctioned the diversion and use of the water for agricultural and 
 
ISO 
 
 THE STATE OP KANSAS VS. 
 
 other useful purposes in contravention of the rights of the ripariail 
 owners to have such water continually flowing in its natural channel. 
 With knowledge and recognition of such right and custom of the in- 
 habitants of said arid region to divert waters and apply the same to 
 beneficial and necessary uses the United States, in its treaty with 
 Spain of February 22, 1819, and afterwards, in its treaty of January 
 12, 1828, with the United Mexican States, expressly stipulated and 
 provided, that the use of the waters of the Arkansas river, and of 
 certain other boundary streams, should be common to the respective 
 inhabitants of both nations, parties to such treaties respectively. 
 
 12. Upon and after the creation and admission of the several Ter- 
 ritories and States of said arid region, including Kansas, both as a 
 Territory and State, they recognized, approved and confirmed and 
 from thence hitherto have enforced said doctrine, and rights to water 
 by diversion from the streams of said arid region have been main- 
 tained as against all claims of riparian rights in conflict therewith. 
 
 13. The Government of the United States, long prior to the sale 
 by it of any of the public lands in the Arkansas valley, recognized 
 and approved said doctrine, and applied the same to said public lands, 
 and renounced and surrendered all riparian rights which it might 
 have asserted in contravention of said doctrine, and from thence 
 hitherto has held and disposed of said lands subject to and in ac- 
 cordance with said doctrine, and has at all times encouraged and 
 promoted the diversion and use of the water of the streams in said 
 arid region for agricultural and mining purposes, and, by grants of 
 public mone} 7 , has aided in the construction of canals, ditches and 
 reservoirs and other appliances for the diversion, storage and use of 
 water, in the reclamation and cultivation of the public lands. 
 
 14. B} 7 means of the diversion and use of the water of said natural 
 streams, many millions of acres of the public lands in said arid 
 region have been settled upon, inhabited and improved and title 
 thereto obtained from the General Government, in the belief that 
 by its action and conduct in the disposition of its public lands, the 
 United States had accepted and applied to said public lands the 
 doctrine of appropriation as hereinbefore set forth ; and there has 
 been paid to said General Government, on account of said lands so 
 improved by the diversion and use of water in accordance with said 
 doctrine, upwards of twenty millions of dollars, and the greater part 
 of the lands in the valley of the Arkansas in the State of Colorado 
 were settled upon and patents therefor obtained bv proof of the di- 
 version and use of the waters of said Arkansas river in the reclama- 
 tion and improvement of said lands, said diversions so made being 
 those complained of and sought to be enjoined in and by the bill of 
 complaint herein. 
 
 15. By the act of Congress approved January 29, 1861, admitting 
 Kansas into the Union, it was specifically provided that the State 
 should never interfere with the primary disposal of the soil within 
 the same by the United States, or with any regulations Congress 
 might find necessary for securing the title in said soil to bona fide 
 
THE STATE OF COLORADO ET AL. 
 
 181 
 
 purchasers thereof and that all laws of the United States not locally 
 inapplicable should have the same force and effect within said State 
 as in other States in the Union. 
 
 Following the admission into the Union of the State of Kansas, 
 said doctrine of appropriation was further recognized by Congress 
 as the law applicable to public lands and the natural streams 
 thereof, including those in the State of Kansas, by the following 
 acts : 
 
 An act approved June 26, 1866, by which it was provided that 
 whenever, by priority of possession, rights to the use of water for 
 mining, manufacturing or other purposes, have accrued and are 
 recognized according to local customs, laws and decisions, the owners 
 and possessors shall be maintained and protected in their rights ; 
 
 An act approved July 9, 1870, in which it was provided that all 
 patents granted, or pre-emptions or homesteads allowed, should be 
 subject to any vested or acquired water right or rights to ditches or 
 reservoirs used in connection with such water rights; 
 
 An act approved March 3, 1877, known as “the desert land 
 act” (which by an act approved March 2, 1891, was made applica- 
 ble to lands in Colorado), declared that all waters of all lakes, rivers 
 and other sources of supply upon the public lands should remain 
 and be held free for the appropriation and use of the public for irri- 
 gation, mining and manufacturing purposes, and in and by which 
 it is also provided that by the construction of canals and ditches 
 and the application of said waters to the irrigation of the public 
 lands, the title to said land might thereby be obtained from the 
 United States. 
 
 An act approved March 3, 1891, confirming the rights of way over 
 the public lands in the arid regions for canals and reservoirs for 
 irrigation purposes ; 
 
 An act approved August 18, 1894, providing for the conveyance 
 to the several States in the arid regiuii of such public lands as they 
 might reclaim and irrigate; 
 
 An act approved June 17, 1902, authorizing and undertaking the 
 construction of canals, ditches and reservoirs in the arid region, in- 
 cluding therein the State of Colorado and the western portion of 
 Kansas, whereby the waters of the public lands might be diverted 
 and used for irrigation purposes, and appropriating for that purpose 
 the proceeds of all moneys received from the sale of public lands in 
 the States of Colorado and Kansas. 
 
 16. The Congress of the United States in recognition of the doc- 
 trine of appropriation for irrigation purposes of waters of the natural 
 streams in the arid region of the United States, on October 2, 1888, 
 appropriated $229,000 for the purpose of investigating the extent to 
 which said reason might be redeemed by irrigation, for the segrega- 
 tion of said irrigable lands in said arid region and for the selection 
 of sites for reservoirs and other hydraulic works necessary for the 
 storage and utilization of waters for irrigation ; and on March 2, 
 1889, Congress made a further appropriation of $450,000 for like 
 
182 
 
 THE STATE OF KANSAS VS. 
 
 purposes, all of which money was expended in investigating and se- 
 lecting reservoir sites and running contour lines for the purpose of 
 aiding and assisting those desiring to appropriate the waters of said 
 streams for irrigation purposes. And the Government of the United 
 States in making such investigation and in selecting reservoir sites 
 surveyed and located a reservoir site on the Apishapa river, which 
 is a tributary of the Arkansas river, in township twenty-eight (28), 
 south of range sixty-one (61), west of the sixth principal meridian, 
 in Las Animas county, Colorado, and caused to be filed in the office of 
 the Secretary of the Interior a report of said investigation and sur- 
 veys and maps of said reservoir site and caused the lands included 
 in said reservoir site to be segregated and withdrawn from entry or 
 filing except as a reservoir site. This defendant, The Rocky Ford 
 Canal, Reservoir, Land, Loan and Trust Company, on the 2nd day 
 of February, 1898, in reliance upon said reservoir site having been 
 so segregated made its filing thereon in accordance with and under 
 the provisions of sections 18 and 21 inclusive of the act of Congress 
 approved March 3, 1891, entitled “An act to repeal the timber cul- 
 ture laws and for other purposes.” The object sought by said de- 
 fendant in filing on said reservoir site was to develope the same and 
 construct a reservoir for the storage of flood waters to supplement 
 the supply of its said canal and said defendant has expended in sur- 
 veying said site and filing on the same and in preliminary work in 
 the construction of said reservoir the sum of $1,500. 
 
 17. All grants and patents of land in the valley of the Arkansas, 
 in the State of Kansas, were made b}^ the United States, subject to 
 the doctrine of appropriation heretofore set forth, and were accepted 
 by the several grantees thereof with the knowledge that in the sale 
 and disposition of the arid lands of the United States along said 
 Arkansas river west of the 97th meridian, it had been and would be 
 necessary to divert and use the waters of said river in the improve- 
 ment and cultivation thereof, and said grants and patents of lands 
 in the State of Kansas were made subject to the right of all persons 
 desiring the use of the same for agricultural purposes to appropriate 
 the waters of the Arkansas river, either in Kansas or Colorado, to 
 the full extent of said river, and all patents granted and pre- 
 emptions and homesteads allowed of lands in the valley of 
 the Arkansas in the State of Kansas subsequent to July 9th, . 
 1870, including in particular the lands described in the bill of 
 complaint situated in Ford county, conveyed to said State of Kansas 
 by the United States on the 13th day of June, 1899, and the lands 
 in Reno county described in said bill of complaint conveyed to said. 
 State of Kansas at divers times subsequent to said 9th day of Juty, 
 1870, were, by the act of Congress of July 9th, 1870, made subject to. 
 all water rights in said river and rights of ditches and reservoirs in 
 connection therewith acquired in accordance with the local customs,, 
 laws and decisions of Colorado. 
 
 18. The Territory of Kansas by its legislature, recognized and ap- 
 proved the said doctrine of appropriation, and in pursuance thereof 
 
THE STATE OE COLOKAHO ET AL. 
 
 183 
 
 in 1859 authorized the St. Charles Town Company to divert the 
 waters of the South Platte river and Cherry creek, and the 
 Mountain Company to divert the waters of the Platte river, and 
 the El Paso Town Company to divert the waters of the tributaries of 
 the Arkansas river heading at Pike’s peak ; and in 1860 authorized 
 the Capital Hydraulic Company to divert for irrigation purposes all 
 the waters of the South Platte river and Cherry creek. And the 
 State of Kansas, by its legislature, has also recognized, approved and 
 adopted said doctrine; an act of said legislature enacted in 1868, 
 authorizing corporations to construct canals diverting water for irri- 
 gation purposes ; an act of the legislature enacted in 1886, providing 
 that the running waters of the State might be appropriated for pur- 
 poses of irrigation ; an act of said legislature enacted in 1891, pro- 
 viding that in all that portion of the State west of the 99th meridian 
 all natural waters, whether standing or running and whether surface 
 or subterranean, should be devoted first, to purposes of irrigation in 
 aid of agriculture, subject to ordinary domestic uses; and, second, to 
 other industrial purposes, and might be diverted from natural beds, 
 basins or channels for such purposes and uses ; and another act, en- 
 acted in 1895, providing for the development of the lands west of 
 the 98th meridian by irrigation and regulating the distribution of 
 water in the same manner as in Colorado. Said State by said sev- 
 eral acts renouncing and surrendering all rights it may have had in 
 said river or the lands adjacent thereto as riparian owner in contra- 
 vention of the right to divert the waters thereof for irrigation in 
 Kansas or Colorado. And in reliance upon the approval and adop- 
 tion of said doctrine of appropriation by said State of Kansas, about 
 five hundred miles of canals and ditches have been constructed in 
 Kansas, west of the 97th meridian at a cost approximating two mil- 
 lion dollars and thereby the waters of said Arkansas river have been 
 appropriated and applied to about one hundred and fifty thousand 
 acres of land in the valley of said river, in the State of Kansas. 
 
 19. The inhabitants of the State of Kansas residing in the valley 
 of the Arkansas river have at all times since the year 1882 or there- 
 abouts encouraged the construction of ditches and reservoirs along 
 said river and its tributaries for the purpose of irrigation and have 
 by their own acts been instrumental in inducing the Government 
 of the United States to make surveys of lands along said river and 
 its tributaries in Colorado and Kansas to aid those desiring to con- 
 struct ditches or canals, and the supreme court of the State of 
 Kansas on the 1st day of July, 1901. decided and adjudged that the 
 legislature of Kansas had by the acts above mentioned recognized 
 the principle of irrigation in the State of Kansas and made the pro- 
 motion of irrigation west of the 98th meridian a public use. 
 
 20. The provisions of the constitution of the State of Colorado set 
 forth and complained of in the bill of complaint, were adopted in 
 harmony with and in pursuance of the policy of the United States 
 in respect to the diversion and use of water in the irrigation of lands, 
 and the same do not conflict with or contravene any act of Congress 
 
184 
 
 THE STATE OF KANSAS VS. 
 
 bearing upon said appropriation and use, but, on the contrary, are 
 intended as a constitutional guaranty that the right to divert water 
 for beneficial purposes as authorized and encouraged by the acts of 
 Congress referred to shall never be denied, and said provisions were 
 accepted and approved by the action of Congress in admitting Colo- 
 rado into the Union, and the several acts of the legislature of 
 Colorado, referred to in said bill of complaint, have been enacted 
 for the purpose of protecting and regulating appropriations made in 
 pursuance of the usages and customs prevailing in the arid region 
 and the right of appropriation as recognized and confirmed by the 
 acts of Congress referred to. 
 
 21. The State of Colorado has always recognized, and now recog- 
 nizes, the common law right of riparian proprietors along the said 
 Arkansas river in Colorado to make a reasonable use of the water 
 thereof for irrigation purposes, said right being recognized by said 
 State as a natural want and necessity for people living in a hot and 
 arid climate such as exists along said river from the foothills of the 
 mountains, where it has its source, to the eastern border of the State. 
 
 IV. 
 
 These defendants, for further joint and several answer and de- 
 fense to the amended bill of complaint, say : 
 
 1. These defendants and their predecessors in title have appro- 
 priated waters from the Arkansas river for the purpose of irrigation, 
 and have applied said waters to such purpose on the lands lying 
 under their several irrigating canals in the valley of the Arkansas 
 river in the State of Colorado, said appropriations having been used 
 continuously since they were originally made. The amounts of 
 said appropriations, the dates when they were originally made and 
 the names of the canals to which they belong, are as follows : 
 
 The Oxford Farmers’ ditch, owned by the defendant, The Oxford 
 Farmers’ Ditch Company, twenty-eight cubic feet per second, of date 
 March 1, 1867. 
 
 The Rocky Ford Highline canal, owned by the defendant, The 
 Rocky Ford Canal, Reservoir, Land, Loan and Trust Company, six- 
 teen cubic feet per second, of date July 1, 1869. 
 
 The Catlin ditch, owned by the defendant, The Catlin Consoli- 
 dated Canal Company, two hundred and forty-eight cubic feet per 
 second, of date December 3, 1884. 
 
 The Rocky Ford Highline canal, thirty cubic feet per second, of * 
 date June 1, 1885. 
 
 The Oxford Farmers’ ditch, one hundred and sixteen cubic feet 
 per second, of date February 26, 1887. 
 
 The Rocky Ford Highline canal, two cubic feet per second, of 
 date March 11, 1886. 
 
 The Catlin ditch, ninety -seven cubic feet per second, of date 
 November 14, 1887. 
 
 The Lake canal, owned by the defendant, The Laguna Canal 
 
THE STATE OF COLORADO KT AL. 
 
 185 
 
 Company, five hundred and fifteen cubic feet per second, of date 
 September 25, 1889. 
 
 The Rocky Ford Highline canal, four hundred twenty-two and 
 one-half cubic feet per second, of date January 6, 1890. 
 
 2. The said canals were constructed and used in irrigating lands 
 lying thereunder in accordance with and in reliance upon the local 
 customs, laws and decisions of the courts of the State of Colorado 
 respecting the right to appropriate and use water for agricultural 
 and other purposes, in force at the time said appropriations were 
 made. The right to appropriate the waters of said river by means 
 of said canals for irrigating purposes to the extent to which said 
 appropriations were made, as hereinbefore set out, was, in the year 
 1896, as to those appropriations made by the Rocky Ford Highline 
 canal and the Oxford Farmers’ ditch, in proceedings then pending 
 in the district court of the county of Pueblo, in the State of Colorado, 
 which said proceedings were had in accordance with the acts of the 
 General Assembly, of the State of Colorado of 1879 and 1881 con- 
 cerning the adjudication of rights to water for irrigating purposes, 
 recognized and confirmed, and said right of appropriation adjudged 
 to be vested as of the dates of the respective appropriations. The 
 right to appropriate the waters of said river by means of the said 
 Catlin ditch for irrigating purposes to the extent to which said ap- 
 propriations were made as hereinbefore set forth, was in the year 
 1891, in a like proceeding then pending in the district court of Bent 
 county in the State of Colorado, also recognized, and adjudged to be 
 vested as of the dates of the appropriations made by means of said 
 canal. The right to appropriate the waters of said river by means 
 of the said Lake canal for irrigating purposes was also, in the year 
 1894, in like proceedings in the district court of Bent county in the 
 State of Colorado, recognized and adjudged to be vested in said canal 
 to the extent of one hundred fifty-five cubic feet of water per second, 
 as of date September 25, 1889. 
 
 3. The lands belonging to the State of Kansas, and used as a 
 soldiers’ home, as alleged in the amended bill of complaint, which 
 were acquired from the Government of the United States on the 13th 
 day of June, 1889, were taken by the State of Kansas subject to all 
 the appropriations of water from said river, made as hereinbefore 
 set out, except said appropriation made by the Lake canal, and 
 said appropriation of January 6, 1890, made by the Rocky Ford 
 High Line canal. All other lands in the valley of the Arkansas, 
 acquired from the Government of the United States since the dates of 
 the respective appropriations of water hereinbefore set out, were 
 conveyed and taken subject to said appropriations. 
 
 4. As to all the lands in the valley of the Arkansas in Kansas ac- 
 quired since the appropriation of said waters through said canals 
 as hereinbefore set forth, the State of Kansas is not entitled, as 
 against the canals belonging to these defendants, to the relief de- 
 manded in the amended bill of complaint herein ; and these defend- 
 ants further r-spectfully submit that the owners of the lauds in said 
 
186 
 
 THE STATE OF KANSAS VS. 
 
 valley are necessary parties to the determination of the rights 
 claimed by the bill of complaint herein, and that they should 
 be made parties plaintiff hereto and be compelled to set forth the 
 dates of the several conveyances to them by the Government of the 
 United States, of the lands now owned by them in said valley. 
 
 V. 
 
 These defendants, for further joint and several answer and defense 
 to the amended bill of complaint, sav : 
 
 1. This defendant, The Rocky Ford Canal, Reservoir, Land, Loan 
 and Trust Company, is the owner of a certain irrigating canal situ- 
 ate in Pueblo and Otero counties, in the State of Colorado, known 
 as 4 ‘ the Rocky Ford Highline canal.” Said defendant and its pred- 
 ecessor in title have appropriated water from the Arkansas river 
 to the amount of sixteen cubic feet per second of date July 1, 1869, 
 thirty cubic feet per second of date June 1,1885, and two cubic feet 
 per second of date March 11, 1886, and used the same continuously 
 since the said dates for the irrigation of lands and said appropria- 
 tion now belongs to the said Rocky Ford Highline canal. 
 
 2. This defendant, The Gatlin Consolidated Canal Company, is 
 the owner of a certain irrigating canal, situated in Otero county, in 
 the State of Colorado, known as the “ Catlin ditch.” Said defend- 
 ant and its predecessor in title have appropriated water from the 
 Arkansas river to the amount of two hundred and forty-eight cubic 
 feet per second of date December 3, 1884, and have used the same 
 continuously since said date for the irrigation of lands, and said ap- 
 propriation now belongs to the said Catlin ditch. 
 
 3. This defendant, The Oxford Farmers’ Ditch Company, is the 
 owner of a certain irrigating canal, situated in the counties of Pueblo 
 and Otero, in the State of Colorado, known as the Oxford Farm- 
 ers’ ditch. Said defendant and its predecessor in title have appro- 
 priated water from the Arkansas river to the amount of twenty- 
 eight cubic feet per second of date March 1, 1867, and used the 
 same continuously since said date for the irrigation of lands, and 
 said appropriation now belongs to the said Oxford Farmers’ ditch. 
 
 4. The diversion and use of the waters of said river have continued 
 each and every year since they were originally made and until the 
 filing of the amended bill of complaint herein, adversely to and in 
 denial of the right of each and every riparian owner along said river 
 in Kansas, as well as eacii and every owner of land in said Arkansas 
 valley in Kansas, to the usual and ordinary flow of said river in 
 Kansas over or along any of said lands as it had been accustomed 
 to flow prior to the diversion of said waters by these defendants, and 
 in denial of any right of the riparian owners along said stream or 
 of lands in the vicinity thereof to the flow of the water of said stream, 
 except as the same might continue after the diversion, through and 
 by means of the canals owned and operated by these defendants, of 
 the waters of said river necessary to the irrigation of said lands lying 
 thereunder. 
 
THIS STATK OF COLORADO ET AL. 
 
 187 
 
 5. The diversion of the waters of the Arkansas river in Colorado 
 for irrigation purposes commenced many years prior to the con- 
 struction of any of the canals owned by these defendants or their 
 predecessors in title and the flow of water in said river has been 
 diminished by said appropriations and each and every owner of 
 land along said river in Kansas well knew that said canals, as well 
 as all other canals along said river in the State of Colorado, were 
 diverting and using said waters adverse^ to and in derogation of 
 any and all rights which they might claim or possess as riparian 
 owners with respect to the waters of said Arkansas river. 
 
 6. These defendants respectfully submit that by the statutes of the 
 State of Kansas concerning the limitation of actions, the right of 
 each and every owner of land along said Arkansas river in Kansas 
 to the usual and ordinary flow of said river, as the same existed 
 prior to the appropriation of said waters in the State of Colorado, 
 and in particular prior to the appropriation and diversion through 
 and by means of the canals of these defendants and their predeces- 
 sors in title made on or prior to March 11, 1886, became and are lost 
 bv fifteen years’ adverse use thereof and all right of action concern- 
 ing said waters became barred after the expiration of fifteen years 
 from the commencement of the assertion and exercise of said adverse 
 right. 
 
 VI. 
 
 These defendants, for further joint and several answer and defense 
 to the said amended bill of complaint, say : 
 
 1. The diversion of waters from the Arkansas river by these de- 
 fendants through their said canals does not in any wa}^ result in in- 
 jury to the State of Kansas or to the owners of land in said State 
 along said river or in the valley thereof, nor does it by any sub- 
 stantial amount diminish the usual and ordinary flow of water in 
 said river in western Kansas. Many of the appropriators and users 
 of water from said canals are the owners of lands riparian to said river 
 and own land bordering on said river, which land said canals were 
 built to irrigate. None of the lands under said canals are outside 
 of the valley of said river and all of the water applied to said lands 
 for irrigation purposes after leaving said canals flows toward said 
 river and a large part of the same finds its way back into said 
 river. 
 
 2. The Arkansas river leaves the foothills of the Rocky mountains 
 at an elevation of about six thousand feet above sea level, and thence 
 flows eastward over an elevated plateau known as the “ Great 
 Plains” for several hundred miles, with a practically uniform de- 
 scent to the east, passing into the State of Kansas at an elevation of 
 3,350 feet and into the Territory of Oklahoma at an elevation of 
 1,000 feet. Through Colorado and Kansas it has a broad, level bed 
 of sand, seldom entirely covered with water, the ordinary flow run- 
 ning in thin sheets in tortuous and constantly changing channels in 
 the river bed. From the mountains, for four hundred miles east- 
 
188 
 
 THE STATE OF KANSAS VS. 
 
 ward, the watershed of said river is naturally barren, treeless and 
 without any vegetation, except the short sparse grass common to 
 the Great Plains. The annual precipitation of moisture is about 
 fourteen inches, most of which falls in local and violent storms. In 
 its uncultivated condition, the land rapidly sheds the rainfall, dis- 
 charges it into the river and prevents the saturation of the soil 
 and the formation of springs by which said river and the tributaries 
 along its course might be fed. The tributary streams are usually 
 dry, carrying and discharging water into the river ouly in case of 
 storms. The sun is seldom obscured and commencing near the 
 State line between Colorado and Kansas, and continuing eastward 
 for at least two hundred miles, the winds are dry and constant, in 
 the summer season becoming so heated as to burn and destroy the 
 vegetation and to absorb such water as may be in the bed of said 
 river. The waters supplied to said river for about four hundred 
 miles of its course after leaving the mountains are irregular in dis- 
 charge and constantly varying in quantity, and are not sufficient to 
 cause a steady and permanent flow during any season of the year. 
 The main supply of the river is from the snows and storms in the 
 mountains. As the snow melts only during warm days, this sup- 
 ply is also irregular and uncertain and the volume of water in the 
 river, therefore, changes daily and even hourly. Long before irriga- 
 tion was practiced in Colorado, it was observed that as the waters 
 from the mountains flowed eastward, the volume constantly dimin- 
 ished, and this diminution was the more marked as the river passed 
 beyond the area of local storms caused by the mountains. During 
 the summer season except when flooded by violent showers, the 
 river, at a distance of from two hundred to four hundred miles from 
 the mountains, would show no surface water other than occasional 
 pools in the sand, and none of the water coming into said river in 
 Colorado would flow to or across the lands in the central or humid 
 portion of Kansas. 
 
 3. The usual and ordinary flow of said river into the State of 
 Kansas, as it is claimed to have been prior to the diversion of 
 water in Colorado by these defendants and others, has been ma- 
 terially diminished by the destruction of timber in the water shed 
 of said river in the mountains, the removal of the protection, which 
 said timber afforded, causing the snow to melt much earlier in the 
 summer season than heretofore and to come down in floods, instead 
 of along sustained flow. The breaking up and tilling of the land 
 lying on both sides of said river, which, in its natural condition, 
 was hard and which rapidly drained the water falling thereon, and 
 the raising of crops on said lands, both in Colorado and western 
 Kansas, for a distance of about two hundred miles, has caused the 
 rainfall on said lands to sink into the earth, instead of passing rap- 
 idly to the river, and as said lands so broken and tilled lie along 
 the course of the river, they have also intercepted the surface run- 
 off from the drainage area back of and above said lands. 
 
 4. By said artificial application of water and by the interception 
 
FfTE STATE OF COLORADO ET AL. 
 
 of the rain falling and draining upon said lands, the same condi- 
 tion has been and is being produced that obtains where rainfall is 
 abundant. The lands have become saturated, veins and channels 
 of water are thereby created and as the water seeks a lower level, 
 it exudes by springs or swampy lands into the gulches and water- 
 ways, making them perennial streams discharging a uniform flow of 
 water into the river. 
 
 These defendants now having fully answered all the allegations 
 in the plaintiff’s amended bill of complaint, or so much thereof as 
 these defendants are advised should he answered, ask to he hence 
 dismissed with costs and charges in this behalf sustained. 
 
 THE ROCKY FORD CANAL, RESERVOIR, 
 LAND, LOAN AND TRUST COMPANY, 
 
 By W. A. COLT, President. 
 
 THE CATLIN CONSOLIDATED CANAL 
 COMPANY, 
 
 By J. N. BEATY, Sec’t’y. 
 
 THE OXFORD FARMERS’ DITCH COM- 
 PANY, 
 
 By T. J. BARNARD, President. 
 
 THE LAGUNA CANAL COMPANY, 
 
 By H. R. HOLBROOK, President. 
 
 FRED. A. SABIN, 
 
 Solicitor of The Rocky Ford Canal, Reservoir, Land, Loan and 
 Trust Company, The Catlin Consolidated Canal Company, 
 The Oxford Farmers’ Ditch Company, The Laguna Canal 
 Company. 
 
 [Endorsed :] Supreme Court U. S., October term, 1903. Term 
 No. 7, original. The State of Kansas, complainant, vs. The State of 
 Colorado et al. Answer of The Rocky Ford Canal, Reservoir, Land, 
 Loan & Trust Co., The Catlin Consolidated Canal Co., The Oxford 
 Farmers’ Ditch Co. and The Laguna Canal Co. to amended bill. 
 Filed Nov. 2, 1903. 
 
 And afterwards, to wit, on the 11th day of November, A. D. 1903, 
 the following order appears of record, viz: 
 
 In the Supreme Court of the United States, October Term, 1903. 
 
 The State of Kansas, Complainant, 1 
 
 vs. V No. 7, Original. 
 
 The State of Colorado et al. j 
 
 On motion of Mr. Frederic D. McKennev, in behalf of counsel, 
 leave is hereby granted to file the answer of the Colorado Fuel and 
 Iron Company to the amended bill of complaint herein. 
 
 November 11th, 1903. 
 
186 
 
 HtE static ofr Kansas vs. 
 
 And oil the same da}^, to wit, on the 11th day of November, A. D. 
 1903, an answer was filed in the words and figures following, viz : 
 
 United States Supreme Court, October Term, 1903. 
 
 The State of Kansas, Complainant, 1 ^ i v 
 
 ’ 1 ( Original .Proceeding, 
 
 vs. i No 7 
 
 The State of Colorado et al., Defendants. ) 
 
 Answer of the Colorado Fuel and Iron Company to Amended Bill. 
 
 David C. Beaman, solicitor for The Colorado Fuel and Iron Com- 
 pany. 
 
 Cass E. Herrington, Fred Herrington, E. Parmalee Prentice., of 
 counsel. 
 
 United States Supreme Court, October Term, 1903. 
 
 The State of Kansas, Complainant, ) ^ • i r> 
 
 vg ’ F ? (Original Proceeding, 
 
 The State of Colorado et al., Defendants. ) 
 
 Answer of the Colorado Fuel & Iron Company to the Amended Bill 
 
 of Complaint. 
 
 I. In Relation to the Averments of the Amended Bill. 
 
 1. This defendant, now and at all times hereafter, saving to itself 
 all and all manner of benefit or advantage of exception or otherwise 
 that can or may be had or taken to the many errors, uncertainties 
 and imperfections in the said amended bill contained, for answer 
 thereto, or to so much thereof as this defendant is advised it is mate- 
 rial or necessary for it to answer, says : 
 
 1. That it admits that the rise, course, drainage area and general 
 physical characteristics of the Arkansas river and of the valley 
 thereof, except as hereinafter set forth, are as stated in said amended 
 bill of complaint. 
 
 2. It denies that the said Arkansas river is in fact, or within the 
 laws or departmental rules and regulations of the United States, a 
 navigable stream, either within the State of Colorado or the State of 
 Kansas. 
 
 3. It denies that any diminution of the flow of said river from the 
 State of Colorado into the State of Kansas is wholly or mainly 
 attributable to the diversion of the waters of said river in the State 
 of Colorado ; and denies that the normal flow of said river at the 
 State line, in the absence of irrigation, for ten months, or for any 
 considerable period during the year, is upward of 2,000 cubic feet 
 per second, or any amount in excess of 500 cubic«feet per second. 
 
191 
 
 STATE OP COLORADO kT Al. 
 
 4 . It admits that the ordinary and usual rainfall in the valley of 
 said river west of the ninety-eighth meridian is inadequate for the 
 growing and maturing of cultivated crops; and avers that in that 
 portion of the State of Kansas, the inhabitants thereof have been, 
 and are, appropriating the water from said river and using the 
 same for the irrigation of lands and other purposes as has been 
 practiced in the State of Colorado for more than forty years past. 
 
 5. It denies that from time immemorial, or at all, the waters of 
 said river have flowed through underlying sand and gravel, extend- 
 ing in width under the entire valley of the Arkansas river, or any 
 material portion thereof ; and denies that any part of the course 
 and flow of said river is beneath the surface of the bottom lands of 
 the valley, or that the course or flow thereof is of any greater width 
 than the channel of said river between its banks, or that there is any 
 underflow of water co-extensive with the valley of said river passing 
 from the State of Colorado into the State of Kansas, or through said 
 State of Kansas ; and denies that the alleged underground water of 
 said river furnishes sufficient moisture to grow ordinary farming 
 crops in the absence of rainfall, unless supplemented by water ob- 
 tained and applied by a system of irrigation such as is in use in Colo- 
 rado and in the western part of Kansas. 
 
 6. It denies that the flow of the river or the underground waters 
 to any appreciable extent tends to cool or moisten the surrounding 
 atmosphere, promote the growth of vegetation, enhance the value of 
 lands or conduce directly or materially to the public health or the 
 habitability of the valley ; and avers that such results throughout 
 the arid and semi-arid portions of Kansas can only be produced by 
 the diversion of water from the river and the application of the same 
 by a system of irrigation to the adjoining lands, and the cultivation 
 thereof. 
 
 7. It denies that the value of the lands in the valley of the Ar- 
 kansas in said State of Kansas is, in any degree, dependent upon the 
 natural and normal flow of water in said river ; and denies that the 
 acts alleged to have been done by this defendant are wrongful ; and 
 denies that, by reason of said alleged acts, the value of lands in the 
 valley' of the Arkansas river in the State of Kansas has been dimin- 
 ished in any sum whatever, or that the revenue of the State of 
 Kansas arising therefrom has been, or will be, in any wise injuri- 
 ously affected. 
 
 8. It admits the acquisition by the State of Kansas of the lands 
 mentioned in said bill of complaint and the conveyance of certain 
 portions thereof to the grantees mentioned therein ; ar.d alleges that 
 all of said lands so acquired b}^ said State of Kansas, and held by 
 its grantees, as well as all lands acquired by settlers by homestead, 
 pre-emption or purchase, were at all times, and now are, subject to 
 the rights of other proprietors of lands and industrial enterprises in 
 the valley of the Arkansas higher up said stream, and in Colorado 
 and Kansas, to appropriate the water of said river and use the same 
 for irrigation, manufacturing and other purposes. 
 
m 
 
 THE STATE OF KANSAS VS. 
 
 9. It denies that the Arkansas river is now, or at any time has 
 been, a navigable river in the State of Kansas or Colorado, or treated 
 as such, or that the title to the bed of said river in the State of 
 Kansas ever passed to said State, or that said State now is, or ever 
 has been, the owner thereof or entitled to the control thereof, or has 
 ever attempted to control the same save and except by acts of its 
 legislature, as hereinafter referred to. 
 
 10. It has no knowledge of the several conveyances or grants of 
 land in the valley of said river in the State of Kansas, heretofore 
 made by the United States, except as hereinafter set forth, and avers 
 that all of the conveyances or grants referred to in said bill of com- 
 plaint, including in particular the lands alleged to be owned by said 
 State of Kansas, were made subject to all rights to water from said 
 river theretofore and thereafter to be acquired, and were taken with 
 full knowledge on the part of said State of Kansas, and by each and 
 every grantee of said lands, that the water of said river had been, 
 were being and would be, appropriated in the State of Colorado for 
 beneficial uses, and that the lands in said valley in the State of 
 Kansas west of the ninety-eighth meridian, and in the State of Colo- 
 rado, could only be made available by like appropriation and use, 
 and that the United States, as the primary owners of said lands, 
 had assumed that they held the same subject to the appropriation 
 of the water of said river for beneficial uses, and that all patents of 
 land granted after July 9, 1870, should be subject to all vested and 
 acquired water rights in or over said river. 
 
 11. It denies that the lands alleged in said bill to belong to the 
 State of Kansas, and situated in the counties of Ford and Reno, de- 
 pend for their value for farming purposes upon the flow of water in 
 the bed of said river, or upon the underflow beneath said land, or 
 that they are entitled to the full, free and natural flow of water in 
 said river to or beneath said land ; and denies that the rights of the 
 State of Kansas, as the owner thereof, are prior or superior to the 
 rights of this defendant, as hereinafter more particularly set forth. 
 
 12. It denies that the diversion of the water of the Arkansas river 
 by this defendant, and the use thereof, in any degree whatever dimin- 
 ishes the ordinary and usual flow of water in said State of Kansas, 
 but, on the contrary, avers that, as a result thereof, and of its reser- 
 voirs for the storage of the flood and storm waters thereof, as here- 
 inafter more particularly set forth, the average flow of water into 
 said State of Kansas, outside of flood and storm periods, is thereby 
 increased instead of diminished. 
 
 13. It denies that it is carrying any of the water of said river 
 through its ditches or canals, to lands not riparian to said river. 
 
 14. It denies that when the Territory of Kansas was created, or 
 the State of Kansas admitted to the Union, the water of said Ar- 
 kansas river was wholl} T unappropriated, or that the common law 
 and the riparian rights claimed in said bill extended over said 
 valley in the State of Kansas, or that the owners of lands along said 
 river were entitled to the unimpeded flow of the water of said river; 
 
THE STATE OF COLORADO ET AL. IDS 
 
 but, on the contrary, avers that numerous appropriations of said 
 water had been made for irrigation and other purposes long prior 
 to the creation of said Territory and many more were made prior 
 to the conveyance by the United States of any of the lands lying 
 along or adjacent to said river, and that the necessity and right to 
 divert the water of said river for beneficial uses had, long previous 
 to the creation of said Territory, been asserted and exercised bv 
 persons in possession of said lands, and said necessity and right 
 were thereafter recognized by the legislature of the Territory of 
 Kansas, and all lands along said river acquired by the State of 
 Kansas, or by individuals or corporations within the Territory or 
 State of Kansas, were taken and held with full knowledge of the 
 climatic conditions which made necessary the diversion and use of 
 the water of said river west of the ninety-eighth meridian, and that 
 appropriations had been, were being and would be, made west of 
 the ninety-eighth meridian within the States of Kansas and Colo- 
 rado, and that, to the extent of said appropriations, the flow of water 
 of said river might, by the laws, usages and customs then prevail- 
 ing, be lawfully impeded. 
 
 15. It denies that, by its taking of water from said river in the 
 State of Colorado, through its canals and ditches, and the use thereof, 
 as hereinafter stated, the State of Kansas, or any of its citizens, or 
 the owners of land along said river in the State of Kansas, have 
 been injured in any degree whatever, or that the fertility of the 
 lands or the use thereof to the fullest extent to which the same are 
 naturally capable of use, have been diminished or impaired, or that 
 the crops, trees and vegetation growing along said river have perished, 
 or will perish, or that the wells have become or will become dry, or 
 that the salubrity or healthfulness of said valley or of the lands 
 adjacent to said river have been or will be impaired. 
 
 II. The initiation and growth of the doctrine of appropriation of 
 water for irrigation, manufacturing, and other purposes. 
 
 1. This defendant avers that, beginning with the earliest settle, 
 ment in the arid region of the United States, which was long prior 
 to the opening of the lands to pre-emption and purchase, by necessity, 
 common consent and uniform usage, the doctrine obtained that the 
 water of all natural streams flowing through said arid region was sub- 
 ject to diversion, appropriation and use for agricultural and other pur- 
 poses ; that the right to the water thus diverted could be acquired, 
 both as against the United States as the owner of the public lands, and 
 as against all grantees of the United States of lands lying along said 
 streams, and that the right of the several appropriators from any 
 given stream should be in the order of appropriation and use, the first 
 in time being first in right, and said doctrine has at all times been, 
 and now is, the settled usage and law of said arid region in respect 
 to the natural streams thereof. 
 
 2. Upon the creation and admission of the several Territories and 
 
 13—7 
 
194 
 
 THE ST \TE OF KANSAS VS. 
 
 States of said arid region, including Kansas, their people and govern- 
 ments recognized, approved and confirmed, and from that time until 
 now have enforced said doctrine, and rights to water by diversion 
 from the streams of said arid region have been maintained as 
 against all riparian rights in conflict therewith. 
 
 3. The United States, long prior to the sale of any of the public 
 lands in the Arkansas valley, recognized and approved said doctrine, 
 and applied the same to said public lands, and renounced and sur- 
 rendered all riparian rights which they might have asserted in con- 
 travention of said doctrine, and from thence hitherto the United 
 States have held and disposed of said lands subject to and in ac- 
 cordance with said doctrine, and at all times encouraged and pro- 
 moted the diversion and use of the water of the streams in said arid 
 region for agricultural, manufacturing and mining purposes, and by 
 grants of public money aided in the construction of canals, ditches 
 and reservoirs and other appliances for the diversion, storage and 
 use of water, in the conversion and cultivation of the arid public 
 lands, and for other beneficial uses. 
 
 4. By means of the diversion and use of the water of said natural 
 streams, many million acres of the public lands in said arid region 
 have been settled upon, inhabited and improved and title thereto 
 obtained from the United States, in the belief that, by such action 
 and conduct in the disposition of public lands, the United States had 
 accepted and applied to said public lands the doctrine of appropria- 
 tion as hereinbefore set forth ; and there has been paid to the United 
 States, on account of said landsso improved by the diversion and useof 
 water in accordance with said doctrine, more than $20,000,000, and 
 the greater part of the lands in the valley of the Arkansas, in the State 
 of Colorado, were settled upon and patents therefor obtained by proof 
 of the diversion and use of the water of said Arkansas river in the 
 reclamation and improvement of said lands, said diversions so made 
 being those complained of and sought to be enjoined in and by the 
 amended bill of complaint herein. 
 
 5. The Territory of Kansas, by its legislature, recognized and ap- 
 proved the doctrine of appropriation, and in pursuance thereof in 
 1859 authorized the St. Charles Town Company to divert the waters 
 of the South Platte river and Cherry creek, and the Mountain Com- 
 pany to divert the waters of the Platte river, and the El Paso Town 
 Company to divert the waters of the tributaries of the Arkansas head- 
 ing at Pike’s peak; and in 1860 authorized the Capital Hydraulic 
 Company to divert all the waters of the South Platte river and 
 Cherry creek. And the State of Kansas has also recognized, ap- 
 proved and adopted said doctrine by an act of its legislature in 1868, 
 authorizing corporations to construct canals diverting water for 
 irrigation purposes; an act of its legislature in 1886, providing that 
 the running waters of the State might be appropriated for purposes 
 of irrigation ; an act of its legislature in 1891, providing that in all 
 that portion of the State west of the ninety-ninth meridian all natural 
 waters, whether standing or running, and whether surface or sub- 
 
THE STATIC OF COLORADO ET AL. 
 
 105 
 
 terra-ean, should be devoted, first, to purposes of irrigation in aid of 
 agriculture, subject to ordinary domestic uses; and, second, to other 
 industrial purposes, and might be diverted from natural beds, basins 
 or channels for such purposes and uses; and another act in 1895 
 providing for the development of the land west of the ninety-eighth 
 meridian by irrigation and regulating the distribution of water in 
 the same manner as in Colorado. Said State of Kansas, by said sev- 
 eral acts renouncing and surrendering all rights it may have had in 
 said river or the lands adjacent thereto as riparian owner in con- 
 travention of the right to divert the waters thereof for beneficial 
 uses in Kansas and Colorado. 
 
 6. By the act of Congress approved January 29, 1861, admitting 
 Kansas into the Union, it was specifically provided that the State 
 should never interfere with the primary disposal of the soil within 
 the same by the United States, or with any regulations Congress 
 might find necessary for securing the title in said soil to bona fide 
 purchasers thereof, and that all laws of the United States not locally 
 inapplicable should have the same force and effect within said State 
 as in other States of the Union. 
 
 7. Following the admission into the Union of the State of Kansas, 
 said doctrine of appropriation was further recognized by Congress 
 as the law applicable to the public lands and the natural streams 
 thereof, including those in the State of Kansas, by the following 
 acts : 
 
 An act approved July 26, 1866, by which it was provided that 
 whenever, by priority of possession, rights to the use of water for 
 mining, manufacturing or other purposes, have accrued and are 
 recognized according to local customs, laws and decisions, the 
 owners and possessors shall be maintained and protected in their 
 rights ; 
 
 An act approved July 9, 1870, in which it was provided that all 
 patents granted, or pre-emptions or homesteads allowed, should be 
 subject to any vested and acquired water right or rights to ditches 
 and reservoirs used in connection with such water rights; 
 
 An act approved March 3, 1877, known as “ the desert land act,” 
 which declared that all waters of all lakes, rivers and other sources 
 of supply upon the public land should remain and be held free for 
 the appropriation and use of the public for irrigation, mining and 
 manufacturing purposes, and in and by which it was also provided 
 that by the construction of canals and ditches and the application 
 of said waters to the irrigation of the public lands, the title to said 
 lands might thereby be obtained from the United States; 
 
 An act approved March 3, 1891, confirming the rights of wav 
 over the public lands in the arid region for canals and reservoirs for 
 irrigation purposes ; 
 
 An act approved August 18, 1894, providing for the conveyance 
 to the several States in the arid region of such public lands as they 
 might reclaim and irrigate ; 
 
 An act approved June 17, 1902, authorizing and undertaking the 
 
196 
 
 THE STATE OP KANSAS VS. 
 
 construction of canals, ditches and reservoirs in the arid region, in- 
 cluding therein the State of Colorado and the western portion of 
 Kansas, whereby the waters of the public lands might be diverted 
 and used for beneficial purposes, and appropriating for that purpose 
 the proceeds of all moneys received from the sale of public lands in 
 the States of Colorado and Kansas. 
 
 8. Under and by virtue of said act approved March 3, 1877, which 
 was made applicable to lands in Colorado bv an act approved March 
 3, 1891, several thousand acres of land in the Arkansas valley, in 
 the State of Colorado, were irrigated and converted, and the diver- 
 sions of water for said purposes are in part the diversions complained 
 of in the said bill. 
 
 9. Said doctrine was further recognized by Congress by the ap- 
 propriation, on October 2, 1888, of $229,000 for the purpose of in- 
 vestigating the extent to which the arid region of the United States 
 might be redeemed by irrigation, and for the segregation of the 
 irrigable lands in such arid region, and for the selection of sites for 
 reservoirs and other hydraulic works necessary for the storage and 
 utilization of water, and also by a further appropriation made on 
 March 2, 1889, of $450,000 for the like purpose, all of which moneys 
 were expended in investigating and selecting reservoir sites, and in 
 running contour lines for the purpose of aiding and assisting those 
 desiring to appropriate and use the waters of the natural streams. 
 
 10. The provisions of the constitution of the State of Colorado 
 complained of were adopted in harmony with and in pursuance of 
 the policy of the United States in respect to the diversion and use 
 of water, and the same do not conflict with or contravene any act 
 of Congress, but, on the contrary, are in harmony with such acts 
 and are intended as a constitutional guaranty that the right to 
 divert water for beneficial purposes as authorized and encouraged 
 by the acts of Congress should never be denied, and said provisions 
 were accepted and approved by the action of Congress in admitting 
 Colorado into the Union, and the several acts of the legislature of 
 Colorado, referred to in said bill have been enacted for the purpose 
 of protecting and regulating appropriations made in pursuance of 
 the usages and customs prevailing in the arid region and the rights 
 of appropriation as recognized and confirmed by the acts of Con- 
 gress. 
 
 11. All grants and patents of land in the valley of the Arkansas, 
 in the State of Kansas, were made by the United States, subject to 
 the doctrine of appropriation heretofore set forth, and were accepted 
 by the several grantees thereof with the knowledge that in the sale 
 and disposition of the arid lands of the United States along said 
 Arkansas river west of the ninety -seventh meridian, it had been and 
 would be necessary to divert and use the water of said river in the 
 improvement and cultivation thereof and for other purposes, and 
 said grants and patents of lands were made subject to the right of 
 all persons desiring the use of the water for beneficial purposes to 
 appropriate the water of the Arkansas river, either in Kausas or 
 
THE STATE OF COLORADO ET AL. 
 
 197 
 
 Colorado, to the fall extent of said river, and all patents granted 
 and all pre-emptions and homesteads allowed of lands in the valley 
 of the Arkansas in the State of Kansas subsequent to July 9, 1870, 
 including in particular the lands described in the bill situated in 
 Ford county, conveyed to said State of Kansas by the United States 
 on the 13th day of June, 1889, and the lands in Reno county de- 
 scribed in said bill and conveyed to the said State of Kansas at 
 divers times subsequent to said 9th day of July, 1870, were, by the 
 act of Congress of July 9, 1870, made subject to all water rights in 
 said river, and rights of ditches and reservoirs in connection there- 
 with acquired in accordance with the local customs, laws and de- 
 cisions of Colorado. 
 
 12. The lands in Ford county alleged by the bill to have been 
 obtained by said State of Kansas by purchase from the United States 
 in the year 1889 and used as a soldiers’ home, as well as all other 
 lands in the valley of the Arkansas, in the State of Kansas, acquired 
 from the United States since the admission of said State into the 
 Union in 1861, were conveyed and taken subject to the appropria- 
 tion and use of the waters of said Arkansas river by this defendant 
 as hereinafter set forth. 
 
 13. This defendant respectfully submits that as to all lands in the 
 valley of the Arkansas in Kansas acquired subsequent to the appro- 
 priation of water by this defendant as herein set forth, the State of 
 Kansas is not entitled to the relief demanded ; and that the owners 
 of lands in said valley are necessary parties to a determination of 
 the rights claimed by the bill herein, and that they should be made 
 parties hereto and compelled to set forth the dates of the several 
 conveyances to them by the United States of the lands now owned 
 bv them in said valley. 
 
 III. The recognition and application by the State of Kansas and 
 
 its citizens of the doctrine of appropriation, the consequent 
 
 defect of parties, and the want of good faith in not avoiding the 
 
 consequences of acts done by its own citizens. 
 
 1. This defendant further avers that beginning as earl} 1 * * * * * 7 as the 
 
 year 1861 and ever since, a great many citizens and corporations in 
 
 Colorado, as well as Kansas, have constructed and maintained nu- 
 
 merous and expensive reservoirs and ditches for the irrigation of 
 their lands in Colorado and Kansas, and for other purposes, and 
 
 have taken water therefor from the Arkansas river and its tribu- 
 taries, and appropriated the same for the purposes aforesaid, be- 
 lieving that they had a legal right so to do, and relying upon the laws 
 
 of the United States and of the States of Colorado and Kansas, which 
 recognize that priority of appropriation gives priority of right to the 
 
 water so appropriated; and relying also upon, and in accordance 
 with the custom which had grown up among the citizens of the 
 United States and of said States in pursuance of such laws. That 
 in consequence of the appropriation and use of such water, large 
 
198 
 
 THE STATE OF KANSAS VS. 
 
 and populous towns and cities have grown up, and many large 
 farms have been improved and made valuable both in Colorado 
 and Kansas, and the continuance of these towns, cities and farms, 
 and of the prosperity of the people of the arid regions of Colorado 
 and Kansas, depend upon the continued appropriation and use of 
 such waters as aforesaid. All of which, and the effect, if any, of 
 such appropriation and use of said water, was during all said time 
 well known to the State of Kansas and to the citizens it claims to 
 especially represent in this suit. 
 
 2. That many persons and corporations who were for many .years 
 prior to the filing of the original and amended bill herein, ever 
 since have been and now are residents and citizens of Kansas, have 
 continuously during said time appropriated, conducted by ditches 
 to, and used upon their arid lands in said State, not riparian or 
 abutting upon, or situated near the bed of the Arkansas river, water 
 for irrigating such lands and other purposes, doing so, and claiming 
 the right to do so, under and by virtue of the laws of the United 
 States and of the State of Kansas relating to the appropriation and 
 use of water for beneficial purposes. 
 
 That said persons and corporations are interested adversely to the 
 claim of plaintiff, as asserted in this suit, and will be injuriously 
 affected by the result if plaintiff succeeds. 
 
 That the names of some of them, and a description of the lands 
 they have and do so own and water are as follows: 
 
 The Frontier ditch (being a continuation of the Buffalo canal in 
 Colorado), watering lands in sections 22, 23, 24 and 25, township 23 
 south of range 43 west; sections 20, 21, 28 and 30, township 23 south 
 of range 42 west, said ditch and lands owned .by Harry Crittenden, 
 T. B. Martin, Frank Crittenden, William Suavely, John Tomilson, 
 Charles Woodman, Fred Pomeroy, John Schranstrom, William 
 Rich, David Hess and John Donahue. 
 
 The Alamo canal, owned by the Alamo Irrigating Company, 
 watering lands in township 24 south of ranges 39, 40 and 41 west, 
 owned by John E. Frost, J. V. Pratt, W. F. Heed, James Gates, W. 
 J. Martindale, D. A. Monroe, L. C. Price and others. 
 
 The Occidental canal, watering lands in sections 9, 10 and 11 in 
 township 24 south of range 41 west, owned by B. J. Woodley, L. 
 Inge and L. T. Worden. 
 
 The Alameda canal, watering lands in sections 16, 17 and 18 in 
 township 24 south of range 40 west, and section 12, township 24 
 south of range 41 west, owned by C. F. Roe, E. J. Barber, Ben A. 
 Wood, M. J. Clark, A. L. Huffman, Henry Packer and W. J. Par- 
 nell. 
 
 The Dodge City canal and Eureka canal, watering the land al- 
 leged in the amended bill to belong to the State of Kansas and used 
 b}' it as a soldiers’ home. 
 
 The said Eureka canal, owned and operated by the Kansas Water 
 Works and Irrigating Company, and watering not only the land be- 
 longing to said State as aforesaid, but also several thousand acres of 
 
THE STATE OF COLORADO ET AL. 
 
 199 
 
 land in township 26 south of ranges 21, 22, 23, 24, 25, 26, 27, and 28 
 west, and township 27 south of ranges 21, 22, 23 and 24 west, said 
 lands being owned by persons whose names are unknown to this de- 
 fendant, the said canal being about ninety miles in length. 
 
 Also, at least twenty-five other canals and ditches of an aggregate 
 length exceeding 200 miles, and watering many thousand acres of 
 non-riparian lands in Kansas, and used for manufacturing and other 
 purposes, this defendant not being sufficiently advised as to the 
 names and ownership of the canals and ditches or lands to set the 
 same out in detail. 
 
 3. That by an act of Congress, approved March 3, 1863, there was 
 granted to the State of Kansas, for the purpose of aiding in the con- 
 struction of a railroad from the city of Atchison, by way of Topeka, 
 to the western line of the State in the direction of Fort Union and 
 Santa Fe, New Mexico, every alternate section of land designated by 
 odd numbers, for ten sections in width on each side of said road, and 
 lying in the valley of the Arkansas river, to which the right of 
 homestead, pre-emption or other rights had not attached and which 
 had not been reserved to the United States. 
 
 On February 9, 1864, the legislature of Kansas approved an act 
 accepting said grant of land, which comprised many thousand acres 
 in said valley. 
 
 On December 19, 1882, the State of Kansas conveyed said lands 
 by patent to the Atchison, Topeka and Santa Fe Railroad Company. 
 
 There was no grant of lands to said company in Colorado. 
 
 The land department of said company was under the direction of 
 A. S. Johnson, as commissioner, and John E. Frost, as chief clerk. 
 
 About 1885 settlement along the line of the road in the Arkansas 
 valley had reached the west line of Kansas, and the land depart- 
 ment of said company considered the matter of stimulating and aid- 
 ing settlements in Colorado. The land department of said company, 
 together with one I. R. Holmes, then local land agent of the com- 
 pany at Garden City, Kansas, in the interest of said railroad com- 
 pany, investigated the situation in Colorado and caused to be located 
 the town of Lamar, thirty miles from the State line in Colorado. At 
 that time there were no irrigation ditches in that part of the Arkan- 
 sas valley, except one or two small ones constructed by small farmers 
 for private use. Capitalists were invited by said land department 
 to come in, and the Oxford ditch, the Lamar and La Junta canal, 
 the Holbrook canal, the Highline canal and various other extensive 
 irrigation enterprises, with the assistance of the land department, 
 were pushed to completion. During this time most of the land in 
 Kansas belonging to the company still belonged to it, and it was 
 well known to said company that in the construction and operation 
 of such canals in Colorado, the water of the river would be appro- 
 priated as against any rights of the lands then owned as aforesaid by 
 the company in Kansas. 
 
 These lands were all thereafter sold by said company to private 
 citizens, and they now constitute nearly or quite one-half of the lands 
 
200 
 
 THE STATE OF KANSAS VS. 
 
 which the plaintiff, by its amended bill, claims the right to protect 
 as against the operations so as aforesaid inaugurated and completed 
 with the assistance of said railroad company, and as to such lands 
 and their claim to the water, and as to the plaintiff and the citizens 
 now owning such lands, there is no equity in said amended bill. 
 
 4. That in September, 1891, a convention of irrigators and owners 
 of lands in the arid and semi-arid regions west of the Missouri river 
 was held at the city of Salt Lake, in the then Territory of Utah, said 
 convention being known as the “first irrigation congress.” Dele- 
 gates to said convention were sent by the governor of Kansas (most 
 of them being from the Arkansas valley), as the representatives of 
 the owners of lands in said valley. Said delegates reported to the 
 members of said convention the circumstances under which the lands 
 in said valley had been taken up and the price paid therefor to the 
 United States; that the United States had received for said lands an 
 amount approximating $6,000,000; that the land had been found to 
 be unfit for cultivation or habitation without irrigation, and the con- 
 vention was urged by them to demand of the United States that they 
 encourage, promote and assist in the construction of the necessary 
 irrigation works, whereby to obtain water for the irrigation of the 
 lands in said valley ; that the platform adopted at said irrigation 
 congress, known as the “Salt Lake platform,” was prepared at the 
 request of said delegation from Kansas, representing the view's and 
 wishes of all the owners of riparian and non-riparian lands in said 
 valley of the Arkansas river in Kansas, said platform being in part 
 as follow's : 
 
 “ Whereas, large areas of arid lands and semi-arid lands situated 
 upon the Great Plains in the Dakotas, western Nebraska, Kansas and 
 Oklahoma, were settled upon in good faith by homeseekers, under 
 the supposition that they were obtaining agricultural lands; 
 
 “And, whereas, the settlers upon such lands have expended much 
 time and labor upon the same and paid into the United States Treas- 
 ury therefor many millions of dollars, only to discover that irrigation, 
 to a greater or less extent, is necessary in making homes for them- 
 selves thereon ; therefore, be it 
 
 “ Resolved, That the representatives of all the States and Terri- 
 tories directly concerned in irrigation do hereby pledge their un- 
 wavering support to the just demands of such settlers that the Gen- 
 eral Government shall donate at least a portion of the funds received 
 from the sale of such lands toward the procurement of the means 
 necessary for their irrigation.” 
 
 At said convention reference was made by said delegates from 
 Kansas to the irrigation works constructed at Greeley, Pocky ford 
 and along the Arkansas river in Colorado, and the same was pointed 
 out as a demonstration of what could be accomplished by irrigation, 
 and it was urged that the like system should, by Government aid, 
 be applied in the valley of the Arkansas in Colorado and Kansas, 
 and itw r as further urged that the United States should make survey 
 of the lands in Kansas to aid those desiring to construct ditches or 
 
THE STATE OF COLORADO ET AL. 
 
 201 
 
 canals, and to furnish information to all persons wishing to know 
 the lines which might be followed by canals and ditches in said 
 valley. 
 
 At subsequent meetings of said irrigation congress, held at Los 
 Angeles, Cal., in 1893, and in Denver, Colo., in 1894, delegates rep- 
 resenting the owners of lands in and the citizens of said Arkansas 
 valley in Kansas, were again present, urging the support of said 
 convention in the application of the people of said valley to the 
 United States for aid in the construction of irrigation works. In 
 all of said conventions the demands of the delegates from Kansas 
 were acceded to and the United States was induced to and did make 
 an irrigation or contour survey of the lands in the valley of the 
 Arkansas for the purpose of aiding in the scheme. 
 
 5. That if it be true, as alleged by the complainant, that the diver- 
 sion and appropriation of the water of the Arkansas river for bene- 
 ficial uses in Colorado causes or tends to cause the injuries to the 
 State of Kansas and certain of its citizens, it is also true that other 
 citizens and residents of western Kansas owning lands lying west of 
 and above the lands described in the amended bill, have been for 
 many years and still are appropriating such water for beneficial uses 
 to and upon their lands, aforesaid, which are non-riparian, claiming 
 the legal right to do so under the same and similar laws under 
 which this defendant and other citizens of Colorado claim, and ad- 
 versely to the alleged riparian rights set forth in said amended bill. 
 
 That the claims and appropriations of said citizens of western 
 Kansas of said water are to such extent as to totally exhaust the 
 ordinary flow of the Arkansas river before it would reach the lands 
 belonging to the State of Kansas and the citizens it claims especially 
 to represent, so that any decree which this court might or could 
 render adverse to the defendants would be of no avail or benefit to 
 said State of Kansas or the citizens it claims to represent, unless a 
 the same time all the aforesaid citizens of western Kansas claiming 
 and appropriating said water for beneficial uses, and especially those 
 corporations and persons hereinbefore named as owners of lands and 
 ditches in western Kansas, are also made parties hereto and likewise 
 restrained from such uses, they being necessary parties defendant to 
 this suit. That for the reasons above stated this court has no juris- 
 diction of the parties now defendant or of the subject-matter of this 
 suit. 
 
 6. That the claims to and appropriation of such water for benefi- 
 cial uses, adverse to the riparian rights alleged in said amended bill, 
 bv said citizens and residents of western Kansas, have been made 
 and carried into effect for man}’ years past, with the full knowledge 
 of said State. 
 
 That, notwithstanding such fact and knowledge said State has 
 never instituted any proceeding or sought in any way to prevent or 
 restrain the same, but on the contrary has from time to time author- 
 ized, recognized and approved such acts, and the institution of this 
 action is not in good faith by said State. 
 
202 
 
 THE STATE OF KANSAS VS. 
 
 IV. The operations of this defendant and the injury that would 
 result to the people of Colorado and Kansas if the bill is sus- 
 tained. 
 
 1. This defendant, further answering, avers that it now is, and its 
 predecessors in interest have been ever since 1877, engaged in min- 
 ing coal and iron ore, and manufacturing coke, steel rails, and other 
 steel and iron products, and this defendant has now in operation 
 twenty-seven coal mines, four iron mines, six coal washeries, 3,020 
 coke ovens, and extensive steel works, the greater part of which are 
 situated in the counties of Fremont, Pueblo, Huerfano and Las Ani- 
 mas Colorado, and upon the Arkansas river and its tributaries ; and 
 are wholly dependent for their operation upon water obtained by- 
 reservoirs and ditches, from the drainage area of said river. 
 
 That during the fiscal year ending June 30, 1903, the tonnage 
 product of this defendant was as follows : 
 
 Tons. 
 
 Coal 
 
 Coke 
 
 Steel and iron 
 
 5,271,942 
 
 994,752 
 
 968,884 
 
 the same having an aggregate value exceeding $17,000,000 ; the 
 aggregate value of the coal and coke exceeding $9,000,000. 
 
 That its pay rolls to employes during said period exceeded 
 $600,000 monthly, and for the year aggregated $8,990,000. 
 
 2. That, prior to the year 1877, and ever since, this defendant and 
 its predecessors in interest, in order to provide water for the opera- 
 tions aforesaid, have been engaged in acquiring, by purchase from 
 the owners thereof, water rights on and along the Arkansas river 
 and its tributaries in Colorado, many of such rights having priori- 
 ties under the laws of the United States and Colorado antedating the 
 year 1860, and this defendant now owns such water rights to an 
 aggregate amount of about 100 cubic feet per second. 
 
 3. That prior to the year 1877, and ever since, this defendant and 
 its predecessors in interest have also been engaged in constructing 
 reservoirs within such area for the purpose of collecting and con- 
 serving the flood and surface water of said area as well as the water 
 so purchased as aforesaid, and to be thereafter purchased by them 
 and it. 
 
 That prior to or about the year 1877 there was so constructed the 
 defendant’s reservoir No. 1, situated near the city of Pueblo in 
 Pueblo county, Colorado, having a storage capacity of 500,000,000 
 gallons of water. 
 
 That in 1900 there was so constructed the defendant’s reservoir 
 No. 2, situated in said Pueblo county, having a storage capacity of 
 
 500.000. 000 gallons of water. 
 
 That in 1902 there was so constructed the defendant’s reservoir 
 No. 3, situated in said Pueblo count}', having a storage capacity of 
 
 2.700.000. 000 gallons of water. 
 
THE STATE OF COLORADO ET AL. 
 
 203 
 
 That ever since their construction said reservoirs have been an- 
 nually filled or partially filled by and through the feeders thereof 
 with the flood water and the other water so acquired from the San 
 Carlos river, a tributary of the Arkansas, and with surface water 
 falling or coming upon the lands of defendant and others adjacent 
 to said reservoirs. 
 
 That the water so collected was continuously, during each year, 
 taken into and used in its steel plant for the purposes incident 
 thereto, without unnecessary use or waste, there being consumed or 
 lost by such use less than fifty per cent, of that so taken in, more 
 than fifty per cent, being returned to the stream. 
 
 That most of the water so collected in said reservoirs and used 
 and returned as aforesaid, was flood and surface water, collected in 
 early spring at a time when, if not so collected, conserved and re- 
 turned, it would, as it formerly did, flow down the Arkansas river 
 in such large volume during short periods that the principal por- 
 tion of it would be and was of no value or benefit to the plaintiff or 
 anyone it claims to represent, but many times a serious injury to 
 them. 
 
 That by reason of such collection, conservation and return of 
 water, and notwithstanding the partial consumption thereof by de- 
 fendant as aforesaid, the flow of water in the Arkansas river in Kan- 
 sas was during said time greater in the aggregate, more continuous 
 and more equally distributed throughout each year than before, 
 and the plaintiff and those it claims to represent were in no way in- 
 jured thereby, but were, in fact, greatly benefited, as were many 
 other citizens of Kansas who were then and still are dependent on 
 the equal flow of water in said river for irrigating their lands in 
 Kansas, and for other purposes. 
 
 4. That this defendant has just completed its Sugar Loaf reser- 
 voir, situated in Lake county, Colorado, having a storage capacity 
 of 5,600,000,000 gallons of water, and has also partially completed its 
 Purgatory reservoir, situated in Las Animas county, Colorado, to 
 have a storage capacity of 650,000,000 gallons of water, in which 
 reservoirs it also proposes to collect, for use in its steel plant and in 
 its coal mines, washers, coke ovens, etc., and return, as aforesaid, the 
 flood water of the upper Arkansas river and of the Purgatory river, 
 a tributary of the Arkansas, and surface water aforesaid, and which 
 will still further tend to augment and equalize the flow of water in 
 said river in Kansas, and result in no injury, but to the great and 
 further benefit of the plaintiff and those it claims to represent, as 
 well as to many other citizens of Kansas who are dependent on the 
 increased and equal flow of the water of said river. 
 
 5. That said Sugar Loaf reservoir was constructed by this defend- 
 ant under and by virtue of an act of Congress, entitled “An act to 
 vacate the Sugar Loaf Reservoir site in Colorado,” etc., approved 
 March 2, 1897, which act vacated the Government’s rights therein, 
 restored it to the public domain and authorized the Secretary of the 
 Interior to sell the same at public auction under such regulations as 
 
204 
 
 THE STATE OF KANSAS VS. 
 
 lie might prescribe to secure the early building and permanent 
 maintenance of a reservoir to increase the flow of the Arkansas river, 
 and to supply water for mechanical, manufacturing and other pur- 
 poses, subject to such control by the State of Colorado as is provided 
 by its laws. 
 
 That in pursuance of said act this defendant acquired said site 
 and on or about October 17, 1903, completed said reservoir at an 
 expense exceeding $120,000, and is authorized and entitled to main- 
 tain and operate the same as contemplated in said act. 
 
 6. That the other reservoirs above referred to were and are to be 
 constructed in accordance with the general laws of the United States 
 and of the State of Colorado, in relation to the construction of reser- 
 voirs, and its water rights aforesaid have been adjudicated and con- 
 firmed hy decrees of court in conformity with the laws of Colorado. 
 
 7. That in connection with the purchase of the ditches and water 
 rights aforesaid the defendant also acquired and now owns the lands 
 to which said ditches and water rights were appurtenant, to an 
 amount exceeding 8,000 acres, all of which adjoin or abut upon the 
 beds of the Arkansas, San Carlos and Purgatory rivers, and were 
 then and are now entitled to all the rights accruing to them as 
 riparian lands, which rights are now owned and entitled to be en- 
 joyed by this defendant. 
 
 8. That the water which defendant has at any time taken or used, 
 or now takes or uses, or is proposing to take and use, from the ordi- 
 nary flow of said streams, does not equal that acquired in connection 
 with the purchase of said lands, and which was appurtenant thereto, 
 and in such use defendant has at no time done more than to exer- 
 cise its riparian rights as a user of such water. But defendant does 
 not by this plea waive or abandon any right it has under the Con- 
 stitution and laws of the United States and the State of Colorado, on 
 account of priority of appropriation for beneficial uses. 
 
 9. That in the purchase of said ditches, water rights and lands, 
 and the construction of its ditches and reservoirs the defendant has 
 expended about $500,000, and it has invested in its other lands and 
 plants in the drainage area of the Arkansas river about $25,000,000, 
 all of which depend for their operation on the water so collected, 
 taken and used as aforesaid, and if deprived of such water or any 
 considerable portion thereof the value of its investment and prop- 
 erty would be effectually destroyed, and this defendant would be 
 thereby irreparably injured, there being no other available water 
 supply therefor. 
 
 10. The defendant and its predecessors have also purchased and 
 constructed since 1877 about twenty miles of ditches, and defendant 
 has now in course of construction about seventy miles of additional 
 ditches within the area aforesaid, all of which are intended to be 
 used in connection with its operations, but which will not tend to 
 decrease the usual and ordiuary flow of water in said Arkansas 
 river into or through the State of Kansas. 
 
 11. That in its operations aforesaid the defendant employs about 
 
THE STATK OE COLORADO ET AL. 
 
 205 
 
 18.000 persons, their families and dependents numbering about 
 
 80.000 persons additional, all of whom are at present wholly and 
 directly dependent on such operations for support. 
 
 That in addition to the persons so directly employed or depending 
 for support on said employes, the defendant’s operations furnish to 
 other auxiliary and dependent industries and to railroads a large 
 amount of business, and thereby indirectly furnish to about 100,000 
 other persons a large proportion of their present employment and 
 support. 
 
 That of the employes and other persons so directly and indirectly 
 dependent on its operations more than fifty per cent, reside on and 
 along the Arkansas river and its tributaries, and within the drainage 
 area of said river. 
 
 12. That at its various mines and plants, situated in the drainage 
 area of the Arkansas river, flourishing towns of greater or less size 
 have grown up, which are wholl} 7 dependent for their present and 
 future existence on the continuation of said operations at such points, 
 said towns having an aggregate population of about 22,000 persons. 
 
 That the inhabitants of most of these towns are also wholly and 
 directly dependent for their water for domestic purposes, fire pro- 
 tection, etc., on the water supply furnished to them by this defendant 
 from its general water supply. 
 
 13. This defendant also has in course of construction extensive 
 additions to its steel and other plants, which when completed will 
 increase the number of its employes about 1,000, and the number 
 of persons dependent on them for support in proportion. 
 
 14. That the resident population of the drainage area of the 
 Arkansas river in Colorado exceeds 175,000. 
 
 That the assessed value of property in said area is as follows: 
 
 Farms and grazing lands $10,000,000 
 
 Live stock 8,000,000 
 
 Miscellaneous 18,000,000 
 
 Total $36,000,000 
 
 The actual value is about twice the above. Many of these resi- 
 dents are either direct^ or indirectly dependent on the operations 
 of this defendant as aforesaid, while the balance of them are either 
 farmers having large and extensive farms in a high state of cultiva- 
 tion, or stock growers, or engaged in other occupations, all depend- 
 ing, directly or indirectly, for their existence and prosperity upon 
 the continuance of the right to appropriate and use the water of such 
 area for agricultural, mining, manufacturing and domestic purposes. 
 
 15. That in the event that this defendant and the residents of the 
 drainage area of the Arkansas river in Colorado should be deprived 
 of their right to so use such water, almost the entire drainage area 
 of said river would become a desert and of little value, as it was prior 
 to its settlement and improvement aforesaid, resulting in irreparable 
 
206 
 
 THE STATE OE KANSAS VS. 
 
 and incalculable injury and damage to the people so immediately 
 concerned as well as to the State of Colorado. 
 
 16. That substantially all the fuel used in western Kansas by beet 
 sugar factories, flour mills and other industries, and for domestic 
 purposes, is coal mined in Colorado, and within the drainage area 
 of the Arkansas river, and a very large proportion of it is mined by 
 this defendant from lands owned by it, which comprise the principal 
 available supply of coal within that area. 
 
 That in the winter time the demand and necessity for coal from 
 Colorado, especially for domestic purposes, in the treeless region of 
 Kansas, is very great, and it is often very difficult to supply it to a 
 sufficient extent to prevent suffering. 
 
 That during the fiscal year aforesaid this defendant’s shipments 
 of coal into Kansas for consumption by its beet sugar factories, flour 
 mill and other industries, and for domestic use, was as follows : 
 
 Tons. 
 
 To points west of Hutchinson 150,000 
 
 To points east of Hutchinson 75,000 
 
 Total 225,000 
 
 the same having an aggregate value at points of deliverv of 
 $1,350,000. 
 
 That in producing steel, coal andcoke a considerable and constant 
 supply of water is required for power, domestic and other purposes, 
 and tlie continuance of sucli production within the drainage area 
 aforesaid is wholly dependent on the use of water from such drain- 
 age area. 
 
 17. That this defendant also owns the principal available supply, 
 and furnishes a large proportion of the coal and coke used by the 
 smelters and other large industries of Colorado, Nebraska, Idaho, 
 Wyoming, Montana, Utah and New Mexico, and to some extent that 
 so used in other States adjacent thereto. 
 
 That in addition to the fuel supplies furnished to industrial plants 
 and for domestic use in the States aforesaid, it furnishes a large 
 amount of steel and fuel to the various railroad systems within said 
 States. 
 
 18. That the cutting off of such fuel supplies furnished by this 
 defendant, or any considerable portion thereof, would result in the 
 shutting down of, or material injury to, most of such indus- 
 tries and cause distress among the inhabitants, to the great and irrep- 
 arable injury of the citizens of all said States, as well as those of 
 western Kansas. 
 
 19. This defendant avers that in its operations aforesaid it is a 
 user rather than a consumer of water, returning to the streams a 
 large percentage of the water originally taken out by it, and that at 
 no time, nor in any manner, have its operations aforesaid injured 
 the State of Kansas nor any citizen thereof, nor deprived them or 
 
THE STATE OE COLORADO ET AL. 
 
 207 
 
 any of them of their rights, directly or indirectly, nor will they do 
 so in the future. 
 
 V. Waiver, estoppel, laches, and the statutes of limitation. 
 
 1. This defendant further avers that it, its grantors and predeces- 
 sors in interest, acquired the property, water and water rights, made 
 all the improvements hereinbefore referred to in good faith, and re- 
 lying on the laws, customs and usages of the United States, of the 
 State of Colorado, and of the State of Kansas, in relation to the ap- 
 propriation and use of water for agricultural, mining, manufactur- 
 ing and domestic purposes, and on the waiver and surrender by said 
 State of Kansas and all other owners of lands along said Arkansas 
 river of all riparian rights inconsistent therewith, as hereinbefore 
 more fully set forth. 
 
 2. That the State of Kansas and those whom it claims to repre- 
 sent had also full knowledge of the operations of this defendant 
 and of the other appropriators of water in Colorado and Kansas 
 hereinbefore set forth as the same occurred ; and of the effect of the 
 same, whatever it may have been, upon the flow of water in said 
 Arkansas river, but made no objection to or protest against any of 
 the operations hereinbefore referred to, but acquiesced therein and 
 appropriated and enjoyed the benefits accruing to them therefrom 
 and recognized that priority of appropriation of the water of the 
 Arkansas river gave priority of right, regardless of riparian owner- 
 ship, and the said State of Kansas, and the citizens it claims to rep- 
 resent, are guilty of laches, and have no right to maintain this suit 
 as against this defendant. 
 
 3. That the State of Kansas is not, as the owner or the representa- 
 tive of the owners of lands in said Arkansas valley in Kansas, en- 
 titled to the relief sought in said amended bill of complaint against 
 this defendant, because, by the acts, doings and conduct of said 
 State of Kansas and of the owners of lands in said valley as herein- 
 before set forth, and by the delay of said State in filing its said bill, 
 and by the failure of the owners of lands in said valley to assert the 
 rights claimed in their behalf by said State, this defendant, and the 
 other appropriators aforesaid, have been induced to make their large 
 investments in reliance thereon, and said State of Kansas, and the 
 citizens it claims to represent are, in equity and good conscience, 
 estopped from now claiming any relief which would impair or de- 
 stroy the value of the same. 
 
 4. That the principal acts performed by defendant and its prede- 
 cessors, and its and their original appropriation and use of water 
 from the Arkansas river and its tributaries, of which plaintiff com- 
 plains, occurred prior to the year 1895, and the right of action on 
 the part of said State or those whom it claims to represent, if any 
 such rights they have on account thereof, accrued more than six 
 years prior to the filing of the amended bill, and this suit as to such 
 
208 
 
 THE STATE OF KANSAS VS. 
 
 acts and appropriation is barred by the statute of limitations of the 
 State of Colorado. 
 
 5. That the principal acts performed by defendant and its prede- 
 cessors, and its and their original appropriation and use of water 
 from the Arkansas river and its tributaries, of which plaintiff com- 
 plains, occurred prior to the year 1888, ami the right of action on 
 the part of said State or those whom it claims to represent, if any 
 such right they have on account thereof, accrued more than fifteen 
 years prior to the filing of the amended bill, and this suit as to such 
 acts and appropriation is barred by the statute of limitations of the 
 State of Kansas. 
 
 6. The defendant further avers that by its long continued appro- 
 priation and use of said waters, as aforesaid, and the acquiescence 
 and conduct of the State of Kansas and its citizens, it has acquired 
 a prescriptive right thereto to the full extent of its appropriation 
 and use thereof. 
 
 This defendant, now having fully answered all the allegations in 
 the plaintiff’s amended bill of complaint, or so much thereof as the 
 defendant is advised should be answered, asks to be hence dismissed 
 with costs and charges in this behalf sustained. 
 
 DAVID C. BEAMAN, 
 
 Solicitor for the Colorado Fuel and Iron Company. 
 
 CASS E. HERRINGTON, 
 FRED HERRINGTON, 
 
 E. PARMALEE PRENTICE, 
 
 Of Counsel. 
 
 [Endorsed :] Supreme Court U. S. October terra, 1903. Term 
 No. 7, original. The State of Kansas, complainant, vs. The State of 
 Colorado et al. Answer of Colorado Fuel and Iron Company to 
 amended bill. Filed Nov. 11, 1903. 
 
 And afterwards, to wit, on the 12th day of January, A. D. 1904 
 the following order appears of record, viz : 
 
 In the Supreme Court of the United States, October Term, 1903. 
 The State of Kansas, Complainant, 
 
 vs. 
 
 The State of Colorado et al. 
 
 On motion of Mr. John F. Shafroth, in behalf of counsel for the 
 defendants, leave is hereby granted to file a stipulation of counsel 
 in relation to filing additional pleadings herein, and, in pursuance 
 of said stipulation, 
 
 It is now here ordered by the court that the complainant .herein 
 be, and it is hereby, required to plead on or before the first Monday 
 
Tttti STATE O# COLORADO eT At. 
 
 209 
 
 of March next, to the answer of the State of Colorado filed herein on 
 October 12th, 1903, and to each and every of the other answers 
 filed by the other defendants. 
 
 January 12th, 1904. 
 
 And on the same day, to wit, on the 12th day of January, A. D. 
 1904, a stipulation was filed in the words and figures following, viz : 
 
 In the Supreme Court of the United States. 
 
 The State of Kansas, Complainant, 
 
 V- I 
 
 The State of Colorado, The Arkansas } 
 Valley Sugar Beet and Irrigated Land | 
 Company, et al., Defendants. ) 
 
 Original Proceedin 
 No. 7. 
 
 Stipulation. 
 
 It is hereby stipulated and agreed between C. C. Coleman, attor- 
 ney-general of the State of Kansas, attorney of record in the above- 
 entitled cause for plaintiff, and N. C. Miller, attorney-general of the 
 State of Colorado, attorney of record for defendant in the above en- 
 titled cause, that an order may be entered in said cause requiring 
 the plaintiff to plead on or before the first Monday in March, A. I). 
 1904, to the answer of the State of Colorado, filed on the 12th day of 
 October, 1903, and to each and every of the other answers filed by 
 other defendants in the above entitled cause, to said amended peti- 
 tion of plaintiff ; and for the purpose of the execution of this stipu- 
 lation and securing said order, the said N. C. Miller represents each 
 and every one of the defendants in said cause: 
 
 Dated this 5th day of December. A. D. 1903. 
 
 C. C. COLEMAN, 
 Attorney General of Kansas. 
 
 N. C. MILLER, 
 
 Attorney General of Colorado. 
 
 Endorsed : In the Supreme Court of the United States. The State 
 of Kansas, complainant, vs. The State of Colorado, defendants. 
 Stipulation. N. C. Miller, attorney-general. 
 
 Endorsed : Supreme Court, U. S., October term, 1903. Term No. 
 7, original. The State of Kansas, complainant, vs. The State of 
 Colorado. Stipulation for an order requiring complainant to plead 
 to answers to cross-bill. Filed January 12", 1904. 
 
 And afterwards, to wit, on the 7th day of March, A. D. 1904, a 
 motion was filed in the words and figures following, viz : 
 
 14 — 7 
 
210 
 
 TltE STATE OF KANSAS V§. 
 
 In the Supreme Court of the United States, October Term, 1903. 
 
 The State of Kansas, Complainant, J 
 
 vs. > Original No. 7. 
 
 The State of Colorado. I 
 
 Now comes the State of Kansas, complainant in the above-entitled 
 cause, by George A. King, Esq., appearing on behalf of C. C. Cole- 
 man, Esq., attorney general of said State of Kansas, and moves the 
 court for leave to file replications to the answers of all the defend- 
 ants who have answered the bill of complaint. 
 
 GEORGE A. KING, 
 Solicitor and of Counsel. 
 
 Endorsed : In the Supreme Court of the United States, October 
 term, 1903. Original No. 7. The State of Kansas, complainant, vs. 
 The State of Colorado. Motion for leave to file replications. George 
 A. King, solicitor and of counsel for complainant. 
 
 Endorsed : Supreme Court, U. S., October term. 1903 Term No. 
 7, orig’l. The State of Kansas, complainant, vs. The State of Colo- 
 rado. Motion for leave to file replications. Filed Mar. 7", 1904. 
 
 And on the same da} r , to wit, on the 7th day of March, A. D. 1904, 
 the following order appears of record, viz : 
 
 In the Supreme Court of the United States, October Term, 1903. 
 
 The State of Kansas, Complainant,! 
 
 vs. yNo. 7, Original. 
 
 The State of Colorado et al. ) 
 
 On motion of Mr. George A. King, in behalf of counsel for the com- 
 plainant, leave is hereby granted to file replications to the several 
 answers of the defendants herein. 
 
 March 7th, 1904. 
 
 And on the same day, to wit, on the 7th day of March A. D. 1904, 
 replications were filed in the words and figures following, viz : 
 
THE STATIC OF COLORADO FT AL. 
 
 211 
 
 Iii the Supreme Court of the United States. 
 
 The State of Kansas, Complainant, 
 vs. 
 
 The State of Colorado and The Besse- 
 mer Ditch Company, a Corporation ; The 
 Oxford Ditch Company, a Corporation ; 
 The Otero Canal Company, a Corporation ; 
 The Laguna Canal Conpany, a Corpora- 
 tion (in the Amended Bill Called The Lake 
 Canal Company, a Corporation) ; The 
 Riverside Ditch Company, a Corporation ; 
 The Catlin Consolidated Canal Company, a 
 Corporation ; The Graham Ditch Company, 
 a Corporation ; The Lamar Land and 
 Canal Company, a Corporation; The Amity 
 Canal and Reservoir Company, a Corpo- 
 ration ; The Rock}' Ford Canal, Reservoir, 
 Land, Loan and Trust Company, a Corpo- 
 ration; The Fort Lyon Canal Company, a 
 Corporation; The Colorado Land and Canal 
 Company, a Corporation ; The Great Plains 
 Water Company, a Corporation ; The Ar- 
 kansas Valley Sugar-beet and Irrigated 
 Land Company, a Corporation ; The Colo- 
 rado Fuel and Iron Company, a Corpora- 
 tion, and The Bent Otero Improvement 
 Company, a Corporation, Defendants. 
 
 No. 7, Original. Oct. 
 Term, 1903. 
 
 Replication of the Complainant to the Separate Answer of the De- 
 fendant, The State of Colorado. 
 
 C. C. Coleman, attorney-general. 
 
 N. H. Loomis, F. Dumont Smith, S. S. Ashbaugh, attorneys for 
 complainant. 
 
THE STATE OF KANSAS Vfl. 
 
 In the Supreme Court of the United States. 
 
 The State of Kansas, Complainant, 
 vs. 
 
 The State of Colorado and The Bessemer Ditch Com- 
 panv, a Corporation ; The Oxford Ditch Company, a Cor- 
 poration ; The Otero Canal Company, a Corporation ; The 
 Laguna Canal Company, a Corporation (in the Amended 
 Bill Called The Lake Canal Company, a Corporation) ; 
 
 The Riverside Ditch Company, a Corporation ; The 
 Catlin Consolidated Canal Company, a Corporation ; The 
 Graham Ditch Company, a Corporation ; The Lamar 
 Land and Canal Company, a Corporation; The Amit}' } No. — . 
 Canal and Reservoir Company, a Corporation ; The 
 Rocky Ford Canal, Reservoir, Land, Loan and Trust 
 Company, a Corporation ; The Fort Lyon Canal Com- 
 pany, a Corporation ; The Colorado Land and Canal 
 Company, a Corporation ; The Great Plains Water Com- 
 pany, a Corporation ; The Arkansas Valley Sugar-beet 
 and Irrigated Land Company, a Corporation ; The Colo- 
 rado Fuel and Iron Company, a Corporation, and The 
 Bent Otero Improvement Company, a Corporation, De- 
 fendants. 
 
 Replication of the Complainant to the Separate Answer of the 
 Defendant, The State of Colorado. 
 
 Comes now the said The State of Kansas, complainant, saving and 
 reserving to itself all and all manner of advantage and exception 
 which may be had and taken to the manifold errors, uncertainties 
 and insufficiencies of the answer of the defendant The State of Colo- 
 rado to the amended bill of complaint, filed herein, for replication 
 thereunto says that it does and will aver, maintain and prove its 
 said amended bill of complaint to be true, certain and sufficient in 
 the law to be answered unto by the said defendant, and that the 
 answer of the said defendant is very uncertain, evasive and insuffi- 
 cient in the law to be replied unto by this complainant; without 
 this, that any other matter or thing in the said answer contained 
 material or effectual in the law to be replied unto and not herein 
 and hereb\r well and sufficient^ replied unto, confessed or avoided, 
 traversed or denied, is true; all which matters and things this com- 
 plainant is ready to aver, maintain and prove as this honorable court 
 shall direct; and the said complainant humbly prays as in and by 
 its said amended bill it has alreadv praved. 
 
 C. C. COLEMAN, 
 
 Attorney General. 
 
 N. H. LOOMIS, 
 
 F. DUMONT SMITH, 
 
 S. S. ASH BAUGH, 
 
 Attorneys for Complainant. 
 
THE STATE OF COLORADO ET AL. 
 
 213 
 
 [Endorsed :] Supreme Court U. S. October term, 1903 Term No. 
 7, orig’l. The State of Kansas, complainant, vs. The State of Colo- 
 rado et al. Replication of complainant to separate answer of de- 
 fendant The State of Colorado. Filed March 7, 1904 
 
 In the Supreme Court of the United States. 
 
 The State of Kansas, Complainant, 
 
 vs. 
 
 The State of Colorado and The Bessemer 
 
 Ditch Company, a Corporation ; The Ox- 
 ford Ditch Company, a Corporation; The 
 Otero Canal Company, a Corporation ; 
 The Laguna Canal Company, a Corpora- 
 tion (in the Amended Bill Called The Lake 
 Canal Company, a Corporation) ; The River- 
 side Ditch Company, a Corporation; The 
 Gatlin Consolidated Canal Company, a 
 Corporation ; The Graham Ditch Com- 
 pany, a Corporation ; The Lamar Land 
 and Canal Company, a Corporation ; The 
 Amity Canal and Reservoir Company, a 
 Corporation; The Rocky Ford Canal, Res- 
 ervoir, Land, Loan and Trust Company, a 
 Corporation; The Fort Lyon Canal Com- 
 pany, a Corporation ; The Colorado Land 
 and Canal Company, a Corporation ; The 
 Great Plains Water Company, a Corpora- 
 tion ; The Arkansas Valley Sugar-beet and 
 Irrigated Land Company, a Corporation ; 
 The Colorado Fuel and Iron Company, a 
 Corporation, and The Bent Otero Improve- 
 ment Company, a Corporation, Defendants. 
 
 / 
 
 No. 7, Original, Oct. 
 Term, 1903. 
 
 Replication of the Complainant to the Separate Answer of the 
 Defendant, The Graham Ditch Company. 
 
 C. C. Coleman, attorney-general. 
 
 N. H. Loomis, F. Dumont Smith, S. S. Ashbaugh, attorneys for 
 complainant. 
 
214 
 
 THE STATE OF KANSAS VS. 
 
 In the Supreme Court of the United States. 
 
 The State of Kansas. Complainant, 
 
 vs. 
 
 The State of Colorado and The Bessemer Ditch 
 Company, a Corporation : The Oxford Ditch Company, a 
 Corporation ; The Otero Canal Company, a Corporation ; 
 The Laguna Canal Company, a Corporation (in the 
 Amended Bill Called The Lake Canal Company, a Cor- 
 poration) ; The Riverside Ditch Company, a Corporation ; 
 The Catlin Consolidated Canal Company, a Corporation ; 
 The Graham Ditch Company, a Corporation ; The Lamar 
 Land and Canal Company, a Corporation ; The Amity 
 Canal and Reservoir Company, a Corporation ; The 
 Rocky Ford Canal Reservoir, Land, Loan and Trust Com- 
 pany, a Corporation ; The Fort Lyon Canal Company, a 
 Corporation ; The Colorado Land and Canal Company, 
 a Corporation ; The Great Plains Water Company, a Cor- 
 poration ; The Arkansas Valley Sugar-beet and Irrigated 
 Land Company, a Corporation ; The Colorado Fuel and 
 Iron Company, a Corporation, and The Bent Otero Im- 
 provement Company, a Corporation, Defendants. 
 
 y No. — . 
 
 i 
 
 Replication of the Complainant to the Separate Answer of the De- 
 fendant, The Graham Ditch Compan}^. 
 
 Comes now the said The State of Kansas, complainant, saving 
 and reserving to itself all and all manner of advantage and excep- 
 tion which may be had and taken to the manifold errors, uncer- 
 tainties and i insufficiencies of the answer of the defendant The Gra- 
 ham Ditch Company to the amended bill of complaint filed herein, 
 for replication thereunto says that it does and will aver, maintain 
 and prove its said amended bill of complaint to be true, certain and 
 sufficient in the law to be answered unto by the said defendant, and 
 that the answer of the said defendant is very uncertain, evasive and 
 insufficient in the law to be replied unto bv this complainant ; with- 
 out this, that any other matter or thing in the said answer contained 
 material or effectual in the law to be replied unto and not herein 
 and hereby well and sufficiently replied unto, confessed or avoided, 
 traversed or denied, is true ; all which matters and things this 
 complainant is ready to aver, maintain and prove as this honorable 
 court shall direct; and the said complainant humbly prays as in 
 and by its said amended bill it has already prayed. 
 
 C. C. COLEMAN, 
 
 Attorney General. 
 
 N. II. LOOMIS, 
 
 F. DUMONT SMITH, 
 
 S. S. ASHBAUGH, 
 
 Attorneys for Complainant. 
 
THE STATE OF COLORADO ET AL. 
 
 215 
 
 [Endorsed:] Supreme Court U. S. October term, 1903. Term 
 No. 7, orig’l. The State of Kansas, complainant, vs. The State of 
 Colorado et al. Replication of complainant to separate answer of 
 defendant The Graham Ditch Co. Filed March 7, 1904. 
 
 In the Supreme Court of the United States. 
 
 The State of Kansas, Complainant, 
 vs. 
 
 The State of Colorado and The Bessemer 
 Ditch Company, a Corporation ; The Ox- 
 ford Ditch Company, a Corporation ; The 
 Otero Canal Company, a Corporation ; The 
 Laguna Canal Company, a Corporation (in 
 the Amended Bill Called The Lake Canal 
 Company, a Corporation) ; The Riverside 
 Ditch Company, a Corporation ; The Catlin 
 Consolidated Canal Company, a Corpora- 
 tion ; The Graham Ditch Company, a Cor- 
 poration ; The Lamar Land and Canal 
 Company, a Corporation; The Amity Canal 
 and Reservoir Company, a Corporation ; 
 The Rocky Ford Canal, Reservoir, Land, 
 Loan and Trust Company, a Corporation; 
 The Fort Lyon Canal Company, a Cor- 
 poration ; The Colorado Land and Canal 
 Company, a Corporation; The Great Plains 
 Water Company, a Corporation ; The Ar- 
 kansas Valley Sugar-beet and Irrigated 
 Land Company, a Corporation ; The Col- 
 orado Fuel and Iron Company, a Corpora- 
 tion, and The Bent Otero Improvement 
 Company, a Corporation, Defendants. 
 
 No. 7, Original, Oct. 
 Term, 1903. 
 
 Replication of the Complainant to the Separate Answer of the De- 
 fendant The Arkansas Valley Sugar-beet and Irrigated Land 
 Company. 
 
 U C. Coleman, attorney -general. 
 
 N. H. Loomis, F. Dumont Smith, S. S. Ashbaugh, attorneys for 
 complainant. 
 
216 
 
 '.THE STATE OF KANSAS VS. 
 
 In the Supreme Court of the United States. 
 
 The State of Kansas, Complainant, 
 vs. 
 
 The State of Colorado and The Bessemer Ditch Com- 
 pany, a Corporation ; The Oxford Ditch Company, a 
 Corporation ; The Otero Canal Company, a Corporation ; 
 
 The Laguna Canal Company, a Corporation (in the 
 Amended Bill Called The Lake Canal Company, a Cor- 
 poration); The Riverside Ditch Company, a Corpora- 
 tion; The Catlin Consolidated Canal Company, a Cor- 
 poration ; The Graham Ditch Company, a Corporation ; 
 
 The Lamar Land and Canal Company, a Corporation ; } No. — . 
 The Amity Canal and Reservoir Company, a Corpora- 
 tion ; The Rocky Ford Canal, Reservoir, Land, Loan, 
 and Trust Company, a Corporation ; The Fort Lyon 
 Canal Company, a Corporation ; The Colorado Land and 
 Canal Company, a Corporation ; The Great Plains Water 
 Company, a Corporation ; The Arkansas Valley Sugar- 
 beet and Irrigated Land Company, a Corporation ; The 
 Colorado Fuel and Iron Company, a Corporation, and 
 The Bent Otero Improvement Company, a Corporation, 
 Defendants. 
 
 Replication of the Complainant to the Separate Answer of the De- 
 fendant The Arkansas Valley Sugar-beet and Irrigated Land 
 Company. 
 
 Comes now the said The State of Kansas, complainant, saving and 
 reserving to itself all and all manner of advantage and exception 
 which may be had and taken to the manifold errors, uncertainties 
 and insufficiencies of the answer of the defendant The Arkansas 
 Valley Sugar-beet and Irrigated Land Company to the amended 
 bill of complaint, filed herein, for replication thereunto says that it 
 does and will aver, maintain and prove its said amended bill of 
 complaint to be true, certain and sufficient in the law to be 
 answered unto by the said defendant, and that the answer of the 
 said defendant is very uncertain, evasive and insufficient in the 
 law to be replied unto by this complainant ; without this, that any 
 other matter or thing in the said answer contained material or 
 effectual in the law to be replied unto and not hereiu and hereby 
 well and sufficiently replied unto, confessed or avoided, traversed or 
 denied, is true ; all which matters and things this complainant is 
 ready to aver, maintain and prove as this honorable court shall 
 direct; and the said complainant humbly prays as in and by its 
 said amended bill it has already praved. 
 
 C. C. COLEMAN, 
 Attorney' -General, 
 
 N. H. LOOMIS, 
 
 F. DUMONT SMITH, 
 
 S. S. ASLIBAUGH, 
 
 Attorneys for Complainant. 
 
THE STATE OF COLORADO ET AL. 
 
 217 
 
 [Endorsed :] Supreme Court U. S. October term, 1903. Term 
 No. 7, orig’l. The State of Kansas, complainant, vs. The State of 
 Colorado et al. Replication of complainant to separate answer of 
 defendant The Arkansas Valley Sugar Beet & Irrigated Land Co. 
 Filed March 7, 1904. 
 
 In the Supreme Court of the United States. 
 
 The State of Kansas, Complainant, ) 
 vs. 
 
 The State of Colorado and The Besse- 
 mer Ditch Company, a Corporation ; The 
 Oxford Ditch Company, a Corporation ; The 
 Otero Canal Company, a Corporation ; The 
 Laguna Canal Company, a Corporation (in 
 the Amended Bill Called The Lake Canal 
 Company, a Corporation) ; The Riverside 
 Ditch Company, a Corporation ; The Catlin 
 Consolidated Canal Company, a Corpora- 
 tion ; The Graham Ditch Company, a Cor- 
 poration ; The Lamar Land and Canal Com- 
 pany, a Corporation ; The Amity Canal and 
 Reservoir Company, a Corporation ; The 
 Rocky Ford Canal, Reservoir, Land, Loan, 
 and Trust Company, a Corporation ; The 
 Fort Lyon Canal Company, a Corporation ; 
 The Colorado Land and Canal Company, a 
 Corporation ; The Great Plains Water Com- 
 pany, a Corporation ; The Arkansas Val- 
 ley Sugar-beet and Irrigated Land Com- 
 pany, a Corporation ; The Colorado Fuel 
 and Iron Company, a Corporation, and 
 The Bent Otero Improvement Company, a 
 Corporation, Defendants. 
 
 No. 
 
 7, Original, Oct. 
 Term, 1903. 
 
 Replication of the Complainant to the Separate Answer of the De- 
 fendant The Fort Lyon Canal Company. 
 
 C. C. Coleman, attorney-general. 
 
 N. H. Loomis, F. Dumont Smith, S. S. Ashbaugh, attorneys for 
 complainant. 
 
218 
 
 THE STATE OF KANSAS VS. 
 
 In the Supreme Court of the United States. 
 
 The State of Kansas, Complainant, 
 
 vs. 
 
 The State of Colorado and The Bessemer Ditch Com- 
 pany, a Corporation ; The Oxford Ditch Company, a Cor- 
 poration ; The Otero Canal Company, a Corporation ; 
 The Laguna Canal Company, a Corporation (in the 
 Amended Bill Called The Lake Canal Company, a Cor- 
 poration) ; The Riverside Ditch Company, a Corpora- 
 tion; The Catlin Consolidated Canal Company, a Corpo- 
 ration ; The Graham Ditch Company, a Corporation ; 
 The Lamar Land and Canal Company, a Corporation; 
 The Amity Canal and Reservoir Company, a Corpora- 
 tion ; The Rocky Ford Canal, Reservoir, Land, Loan 
 and Trust Company, a. Corporation ; The Fort Lyon 
 Canal Company, a Corporation ; The Colorado Land and 
 Canal Company, a Corporation ; The Great Plains Water 
 Company, a Corporation ; The Arkansas Valley Sugar- 
 beet and Irrigated Land Company, a Corporation; The 
 Colorado Fuel and Iron Company, a Corporation, and 
 The Bent Otero Improvement Company, a Corporation, 
 Defendants. 
 
 VNo.— . 
 
 Replication of the Complainant to the Separate Answer of the De- 
 fendant The Fort Lyon Canal Company. 
 
 Comes now the said The State of Kansas, complainant, saving 
 and reserving to itself all and all manner of advantage and excep- 
 tion which may be had and taken to the manifold errors, uncertain- 
 ties and insufficiencies of the answer of the defendant The Fort 
 Lyon Canal Company to the amended bill of complaint, filed herein, 
 for replication thereunto says that it does and will aver, maintain 
 and prove its said amended bill of complaint to be true, certain and 
 sufficient in the law to be answered unto by the said defendant, and 
 that the answer of the said defendant is very uncertain, evasive and 
 insufficient in the law to be replied unto by this complainant ; with- 
 out this, that any other matter or thing in the said answer contained 
 material or effectual in the law to be replied unto and not herein 
 and hereby well and sufficiently replied unto, confessed or avoided, 
 traversed or denied, is true; all which matters and things this com- 
 plainant is ready to aver, maintain and prove as this honorable 
 court shall direct ; and the said complainant humbly prays as in 
 and bv its said amended bill it has already prayed. 
 
 C. C/ COLEMAN, 
 
 Attorney -General, 
 
 N. H. LOOMIS, 
 
 F. DUMONT SMITH, 
 
 S. S. ASHBAUGH, 
 
 Attorneys for Complainant. 
 
the state of Colorado kt al. 
 
 219 
 
 [Endorsed :] Supreme Court U. S. October term, 1903 Term No. 
 7, orig’l The State of Kansas, complainant, vs. The State of Col- 
 orado et al, Replication of complainant to separate answer of de- 
 fendant The Fort Lyon Canal Co. Filed March 7, 1904. 
 
 In the Supreme Court of the United States. 
 
 The State of Kansas, Complainant," 
 vs. 
 
 The State of Colorado and The 
 Bessemer Ditch Company, a Corpo- 
 ration ; The Oxford Ditch Company, 
 a Corporation ; The Otero Canal 
 Company, a Corporation ; The La- 
 guna Canal Company, a Corpora- 
 tion (in the Amended Bill Called 
 The Lake Canal Company, a Cor- 
 poration); The Riverside Ditch 
 Company, a Corporation; The Cat- 
 liu Consolidated Canal Company, a 
 Corporation ; The Graham Ditch 
 Company, a Corporation ; The La- 
 mar Land and Canal Company, 
 a Corporation ; The Amity Canal 
 and Reservoir Company, a Corpo- 
 ration ; The Rocky Ford Canal, 
 Reservoir, Land, Loan and Trust 
 Company, a Corporation ; The Fort 
 Lyon Canal Company, a Corpora- 
 tion ; The Colorado Land and Canal 
 Company, a Corporation ; The Great 
 Plains Water Company, a Corpora- 
 tion ; The Arkansas Valley Sugar- 
 beet and Irrigated Land Company, 
 a Corporation ; The Colorado Fuel 
 and Iron Company, a Corporation, 
 and The Bent Otero Improvement 
 Company, a Corporation, Defend- 
 ants. 
 
 No. 7, 
 
 Original, Oct. 
 1903. 
 
 Term, 
 
 Replication of the Complainant to the Separate Answer of the De- 
 fendant The Rocky Ford Canal, Reservoir, Land, Loan and Trust 
 Company. 
 
 C. C. Coleman, attorney-general. 
 
 N. H. Loomis, F. Dumont Smith, S. S. Ashbaugh, attorneys for 
 complainant. 
 
220 
 
 THE STATIC OF KANSAS VS. 
 
 In the Supreme Court of the United States. 
 
 The State of Kansas, Complainant, 
 vs. 
 
 The State of Colorado and The Bessemer Ditch 
 Company, a Corporation ; The Oxford Ditch Company, 
 a Corporation ; The Otero Canal Company, a Corpora- 
 tion ; The Laguna Canal Company, a Corporation (in 
 the Amended Bill Called The Lake Canal Company, a 
 Corporation) ; The Riverside Ditch Company, a Corpo- 
 ration ; The Catlin Consolidated Canal Company, a Cor- 
 poration ; The Graham Ditch Company, a Corporation ; 
 
 The Lamar Land and Canal Company, a Corporation ; } No. — . 
 The Amity Canal and Reservoir Company, a Corpora- 
 tion ; The Rocky Ford Canal, Reservoir, Land, Loan and 
 Trust Company, a Corporation ; The Fort Lyon Canal 
 Company, a Corporation ; The Colorado Land and Canal 
 Company, a Corporation ; The Great Plains Water Com- 
 pany, a Corporation; The Arkansas Valley Sugar-beet 
 and Irrigated Land Company, a Corporation ; The Colo- 
 rado Fuel and Iron Company, a Corporation, and The 
 Bent Otero Improvement Company, a Corporation, De- 
 fendants. 
 
 Replication of the Complainant to the Separate Answer of the 
 Defendant The Rocky Ford Canal, Reservoir, Land, Loan and 
 Trust Company. 
 
 Comes now the said The State of Kansas, complainant, saving and 
 reserving to itself all and all manner of advantage and exception 
 which may be had and taken to the manifold errors, uncertainties 
 and insufficiencies of the answer of the defendant The Rocky Ford 
 Canal, Reservoir, Land, Loan and Trust Company to the amended 
 bill of complaint, hied herein, for replication thereunto says that it 
 does and will ever, maintain and prove its said amended bill of 
 complaint to be true, certain and sufficient in the law to be answered 
 unto by the said defendant, and that the answer of the said defend- 
 ant is very uncertain, evasive and insufficient in the law to be re- 
 plied unto by this complainant; without this, that any other matter 
 or thing in the said answer contained material or effectual in the 
 law to be replied unto and not herein and herein well and suffi- 
 ciently replied unto, confessed or avoided, traversed or denied, is 
 true; all which matters and things this complainant is ready to 
 aver, maintain and prove as this honorable court shall direct ; and 
 the said complainant humbly prays as in aud by its said amended 
 bill it has already prayed. 
 
 C. C. COLEMAN, 
 Attorney General, 
 
 N. H. LOOMIS, 
 
 F. DUMONT SMITH, 
 
 S. S. ASHBAUGH, 
 
 Attorneys for Complainant. 
 
LHE STATE OF COLORADO EL AL. 
 
 §21 
 
 [Endorsed:] Supreme Court U. S. October term, 1903 Term 
 No. 7, orig’l The State of Kansas, complainant vs. the State of 
 Colorado et al. Replication of the complainant to the separate an- 
 swer of the defendant The Rocky Ford Canal, Reservoir, Land, 
 Loan & Trust Co. Filed March 7, 1904. 
 
 In the Supreme Court of the United States. 
 
 The State of Kansas, Complainant, 
 vs. 
 
 The State of Colorado and The Bessemer 
 Ditch Company, a Corporation ; The Ox- 
 ford Ditch Company, a Corporation ; The 
 Otero Canal Company, a Corporation ; The 
 Laguna Canal Company, a Corporation (in 
 the Amended Bill Called The Lake Canal 
 Company, a Corporation) ; The Riverside 
 Ditch Company, a Corporation ; The Cat- 
 lin Consolidated Canal Company, a Corpo- 
 ration ; The Graham Ditch Company, a 
 Corporation ; The Lamar Land and Canal 
 Compan} 7 , a Corporation ; The Amity Canal } 
 and Reservoir Company, a Corporation ; 
 The Rocky Ford Canal, Reservoir, Land, 
 Loan and Trust Company, a Corporation ; 
 The Fort Lyon Canal Company, a Corpo- 
 ration ; The Colorado Land and Canal 
 Company, a Corporation ; The Great Plains 
 Water Company, a Corporation; The Ar- 
 kansas Valley Sugar-beet and Irrigated 
 Land Company, a Corporation ; The Colo- 
 rado Fuel and Iron Company, a Corpora- 
 tion, and The Bent Otero Improvement 
 Company, a Corporation, Defendants. 
 
 No. 7, Original, Oct- 
 Term, 1903. 
 
 Replication of the Complainant to the Separate Answer of the 
 Defendant The Catlin Consolidated Canal Compan} 7 . 
 
 C. C. Coleman, attorney-general. 
 
 N. H. Loomis, F. Dumont Smith, S. S. Ashbaugh, attorneys for 
 complainant. 
 
THE STATE OF KANSAS Vg. 
 
 In the Supreme Court of the United States. 
 
 The State of Kansas, Complainant, 
 vs. 
 
 The State of Colorado and The Bessemer Ditch Com- 
 pany, a Corporation ; The Oxford Ditch Company, a Cor- 
 poration ; The Otero Canal Company, a Corporation ; The 
 Laguna Canal Company, a Corporation (in the Amended 
 Bill Called The Lake Canal Company, a Corporation) ; 
 The Riverside Ditch Company, a Corporation; The Cat- 
 li 11 Consolidated Canal Company, a Corporation ; The 
 Graham Ditch Company, a Corporation ; The Lamar 
 Land and Canal Company, a Corporation ; The Amity 
 Canal and Reservoir Company, a Corporation; The 
 Rocky Ford Canal, Reservoir, Land, Loan ad Trust Com- 
 pany, a Corporation ; The Fort Lyon Canal Company, a 
 Corporation ; The Colorado Land and Canal Company, 
 a Corporation ; The Great Plains Water Company, a Cor- 
 poration ; The Arkansas Valley Sugar-beet and Irrigated 
 Land Company, a Corporation ; The Colorado Fuel and 
 Iron Company, a Corporation, and The Bent Otero Im- 
 provement Company, a Corporation, Defendants. 
 
 } No. — . 
 
 Replication of the Complainant to the Separate Answer of the 
 Defendant The Catlin Consolidated Canal Company. 
 
 Comes now the said The State of Kansas, complainant, saving 
 and reserving to itself all and all manner of advantage and excep- 
 tion which may be had and taken to the manifold errors, uncer- 
 tainties and insufficiencies of the answer of the defendant The Catlin 
 Consolidated Canal Company to the amended bill of complaint, 
 filed herein, for replication thereunto says that it does and will aver, 
 maintain and prove its said amended bill of complaint to be true, 
 certain and sufficient in the law to be answered unto by the said 
 defendant, and that the answer of the said defendant is very uncer- 
 tain, evasive and insufficient in the law to be replied unto by this 
 complainant; without this, that any other matter or thing in the 
 said answer contained material or effectual in the law to be replied 
 unto and not herein and hereby well and sufficiently replied unto, 
 confessed or avoided, traversed or denied, is true; all which matters 
 and things this complainant is ready to aver, maintain and prove 
 as this honorable court shall direct; and the said complainant 
 humbly prays as iu and by its said amended bill it has already 
 prayed. 
 
 C. C. COLEMAN, 
 
 Attorney General. 
 
 N. H. LOOMIS, 
 
 E. DUMONT SMITH, 
 
 S. S. ASHBAUGH, 
 
 Attorneys for Complainant. 
 
^tiE STATE OF COLORADO ET AL. 
 
 [Endorsed :] Supreme Court U. S. October term, 1903. Term 
 No. 7, orig’l. The State of Kansas, complainant, vs. The State of 
 Colorado et al. Replication of the complainant to separate answer 
 of defendant The Catlin Consolidated Canal Co. Filed March 7, 
 1904. 
 
 In the Supreme Court of the United States. 
 
 The State of Kansas, Complainant, 
 vs. 
 
 The State of Colorado and The Bessemer 
 Ditch Company, a Corporation ; The Oxford 
 Ditch Company, a Corporation; The Otero 
 Canal Company, a Corporation ; The La- 
 guna Canal Company, a Corporation (in the 
 Amended Bill Called The Lake Canal Com- 
 pany, a Corporation) ; The Riverside Ditch 
 Company, a Corporation ; The Catlin Con- 
 solidated Canal Company, a Corporation ; 
 The Graham Ditch Company, a Corpora- 
 tion ; The Lamar Land and Canal Corn- 
 pan}^ a Corporation ; The Amity Canal and 
 Reservoir Company, a Corporation ; The 
 Rocky Ford Canal, Reservoir, Land, Loan 
 and Trust Company, a Corporation ; The 
 Fort Lyon Canal Company, a Corporation; 
 The Colorado Land and Canal Company, a 
 Corporation ; The Great Plains Water Com- 
 pany, a Corporation ; The Arkansas Valley 
 Sugar-beet and Irrigated Land Company, 
 a Corporation ; The Colorado Fuel and Iron 
 Company, a Corporation, and The Bent 
 Otero Improvement Company, a Corpora- 
 tion, Defendants. 
 
 i 
 
 ;• 
 
 No. 7, Original, Oct. 
 Term, 1903. 
 
 Replication of the Complainant to the Separate Answer of the De- 
 fendant The Oxford Ditch Company. 
 
 C. C. Coleman, attorney-general. 
 
 N. H. Loomis, F. Dumont Smith, S. S. Ashbaugh, attorneys for 
 complainant. 
 
m 
 
 'THE sTAtE ot? tt A NS A3 VS. 
 
 In the Supreme Court of the United States. 
 
 The State of Kansas, Complainant, 
 vs. 
 
 The State of Colorado and The Bessemer Ditch 
 Company, a Corporation; The Oxford Ditch Company, a 
 Corporation ; The Otero Canal Company, a Corporation ; 
 
 The Laguna Canal Company, a Corporation (in the 
 Amended Bill Called The Lake Canal Company, a Cor- 
 poration) ; The Riverside Ditch Company, a Corporation ; 
 
 The Catlin Consolidated Canal Company, a Corporation ; 
 
 The Graham Ditch Company, a Corporation ; The Lamar 
 Land and Canal Company, a Corporation; The Amity } No. — . 
 Canal and Reservoir Company, a Corporation ; The 
 Rocky Ford Canal, Reservoir, Land, Loan and Trust 
 Company, a Corporation ; The Fort Lyon Canal Com- 
 pany, a Corporation ; The Colorado Land and Canal 
 Company, a Corporation ; The Great Plains Water Com- 
 pany, a Corporation; The Arkansas Valley Sugar-beet 
 and Irrigated Land Company, a Corporation ; The Colo- 
 rado Fuel and Iron Company, a Corporation, and The 
 Bent Otero Improvement Company, a Corporation, De- 
 fendants. 
 
 Replication of the Complainant to the Separate Answer of the 
 Defendant The Oxford Ditch Company. 
 
 Comes now the said The State of Kansas, complainant, saving and 
 reserving to itself all and all manner of advantage and exception 
 which may be had and taken to the manifold errors, uncertainties 
 and insufficiencies of the answer of the defendant The Oxford Ditch 
 Company to the amended bill of complaint, filed herein, for replica- 
 tion thereunto says that it does and will aver, maintain and prove 
 its said amended bill of complaint to be true, certain and sufficient 
 in the law to be answered unto by the said defendant, and that the 
 answer of the said defendant is very uncertain, evasive and insuf- 
 ficient in the law to be replied unto by this complainant; without 
 this, that any other matter or thing in the said answer contained 
 material or effectual in the law to be replied unto and not herein 
 and hereby well and sufficiently replied unto, confessed or avoided, 
 traversed or denied, is true ; all which matters and things this com- 
 plainant is ready to aver, maintain and prove as this honorable court 
 shall direct; and the said complainant humbly prays as in and by 
 its said amended bill it has already prayed. 
 
 C. C. COLEMAN, 
 
 Attorney General. 
 
 N. H. LOOMIS, 
 
 F. DUMONT SMITH, 
 
 S. S. ASHBAUGH, 
 
 Attorneys for Complainant. 
 
THE STATE O# COLORADO ET AL 
 
 225 
 
 [Endorsed:] Supreme court U. S. October term, 1903. Term No. 
 7, orig’l. The State of Kansas complainant vs. The State of Colo- 
 rado et cil. Replication of complainant to separate answer of defend- 
 ant The Oxford Ditch Co. Filed March 7, 1904. 
 
 In the Supreme Court of the United States. 
 
 The State of Kansas, Complainant, 
 
 vs. 
 
 The State of Colorado and The Bessemer 
 Ditch Company, a Corporation ; The Ox- 
 ford Ditch Company, a Corporation ; The 
 Otero Canal Company, a Corporation ; The 
 Laguna Canal Company, a Corporation (in 
 the Amended Bill Called The Lake Canal 
 Company, a Corporation); The Riverside 
 Ditch Company, a Corporation ; The Gatlin 
 Consolidated Canal Company, a Corpora- 
 tion ; The Graham Ditch Company, a Cor- 
 poration ; The Lamar Land and Canal 
 Com pan}", a Corporation ; The Amity Canal 
 and Reservoir Company, a Corporation ; 
 The Rocky Ford Canal, Reservoir, Land, 
 Loan and Trust Company, a Corporation; 
 The Fort Lyon Canal Company, a Corpora- 
 tion ; The Colorado Land and Canal Com- 
 pany, a Corporation ; The Great Plains 
 Water Company, a Corporation; the Ar- 
 kansas Valley Sugar-beet and Irrigated 
 Land Company, a Corporation ; The Colo- 
 rado Fuel and Iron Company, a Corpora- 
 tion; and The Bent Otero Improvement 
 Company, a Corporation, Defendants. 
 
 ► No. 7, Original, Oct. 
 Terra, 1903. 
 
 Replication of the Complainant to the Separate Answer of the De- 
 fendant, The Laguna Canal Company (in the Amended Bill Called 
 The Lake Canal Company, a Corporation). 
 
 C. C. Coleman, attorney-general. 
 
 N. H. Loomis, F. Dumont Smith, S. S. Ashbaugh, atttorneys for 
 complainant. 
 
 15—7 
 
226 
 
 THE STATE OF KANSAS VS. 
 
 In the Supreme Court of the United States. 
 
 The State of Kansas, Complainant, 
 vs. 
 
 The State of Colorado and The Bessemer Ditch 
 Company, a Corporation; The Oxford Ditch Company, a 
 Corporation; The Otero Canal Company, a Corporation ; 
 
 The Laguna Canal Company, a Corporation (in the 
 Amended Bill Called The Lake Canal Company, a Cor- 
 poration); The Riverside Ditch Company, a Corpora- 
 tion ; The Catlin Consolidated Canal Company, a Cor- 
 poration; The Graham Ditch Company, a Corporation; 
 
 The Lamar Land and Canal Company, a Corporation; } No. — . 
 The Amity Canal and Reservoir Company, a Corpora- 
 tion; The Rocky Ford Canal, Reservoir, Land, Loan 
 and Trust Company, a Corporation ; The Fort Lyon 
 Canal Company, a Corporation ; The Colorado Land and 
 Canal Company, a Corporation; The Great Plains Water 
 Company, a Corporation; The Arkansas Valley Sugar- 
 beet and Irrigated Land Compaq, a Corporation; The 
 Colorado Fuel and Iron Company, a Corporation, and 
 The Bent Otero Improvement Company, a Corporation, 
 Defendants. 
 
 Replication of the Complainant to the Separate Answer of the De- 
 fendant The Laguna Canal Company (in the Amended Bill 
 Called The Lake Canal Company, a Corporation). 
 
 Comes now the said The State of Kansas, complainant, saving and 
 reserving to itself all and all manner of advantage and exception 
 which may be had and taken to the manifold errors, uncertainties 
 and insufficiencies of the answer of the defendant The Laguna 
 Canal Company (in the amended bill called The Lake Canal Com- 
 pany) a corporation, to the amended bill of complaint, filed herein, 
 for replication thereunto says that it does and will aver, maintain 
 and prove its said amended bill of complaint to be true, certain and 
 sufficient in the law to be answered unto by the said defendant, and 
 that the answer of the said defendant is very uncertain, evasive and 
 insufficient in the law to be replied unto by this complainant; with- 
 out this, that any other matter or thing in the said answer con- 
 tained material or effectual in the law to be replied unto and not 
 herein and hereby well and sufficiently replied unto, confessed or 
 avoided, traversed or denied, is true; all which matters and things 
 this complainant is ready to aver, maintain and prove as this hon- 
 orable court shall direct; and the said complainant humbly prays 
 as in and bv its said amended bill it has already prayed. 
 
 C. C. COLEMAN, 
 
 Attornev-General. 
 
 N. H. LOOMIS, 
 
 F. DUMONT SMITH, 
 
 S. S. ASLIBAUGH, 
 
 Attorneys for Complainant. 
 
THE STATE OF COLORADO ET AL 
 
 { 22l 
 
 [Endorsed :] Supreme Court U. S. October term, 1903. Term 
 No. 7, orig’l. The State of Kansas, complainant, vs. The State of 
 Colorado et al. Replication of complainant to separate answer of 
 defendant The Laguna Canal Co. Filed March 7, 1904. 
 
 In the Supreme Court of the United States. 
 
 The State of Kansas, Complainant, 
 vs. 
 
 The State of Colorado and The Bessemer 
 Ditch Company, a Corporation ; The Ox- 
 ford Ditch Company, a Corporation ; The 
 Otero Canal Company, a Corporation; 
 The Laguna Canal Company, a Corpora- 
 tion (in the Amended Bill Called The 
 Lake Canal Company, a Corporation) ; 
 The Riverside Ditch Company, a Corpora- 
 tion ; The Catlin Consolidated Canal Com- 
 pany, a Corporation ; The Graham Ditch 
 Company, a Corporation; The Lamar Land 
 and Canal Company, a Corporation ; The 
 Amity Canal and Reservoir Company, a 
 Corporation; The Rocky Ford Canal, Res- 
 ervoir, Land, Loan and Trust Company, a 
 Corporation; The Fort Lyon Canal Com- 
 pany, a Corporation ; The Colorado Land 
 and Canal Company, a Corporation ; The 
 Great Plains Water Company, a Corpora- 
 tion ; The Arkansas Valley Sugar-beet 
 and Irrigated Land Company, a Corpora- 
 tion ; The Colorado Fuel and Iron Com- 
 pany, a Corporation, and The Bent Otero 
 Improvement Company, a Corporation, 
 Defendants. 
 
 No. 7, Original, Oct. 
 Term, 1903. 
 
 Replication of the Complainant to the Separate Answer of the De- 
 fendant The Colorado Fuel and Iron Company. 
 
 C. C. Coleman, attorney-general. 
 
 N. H. Loomis, F. Dumont Smith, S. S. Ashbaugh, attorneys for 
 complainant. 
 
THE STATE OF KANSAS VS. 
 
 228 
 
 In the Supreme Court of the United States. 
 
 The State of Kansas, Complainant, 
 vs. 
 
 The State of Colorado and The Bessemer Ditch Com- 
 pany, a Corporation; The Oxford Ditch Company, a 
 Corporation ; The Otero Canal Company, a Corporation ; 
 
 The Laguna Canal Company, a Corporation (in the 
 Amended Bill Called The Lake Canal Company, a Cor- 
 poration); The Riverside Ditch Company, a Corpora- 
 tion ; The Catlin Consolidated Canal Company, a Cor- 
 poration ; The Graham Ditch Company, a Corporation ; 
 
 The Lamar Land and Canal Company, a Corporation ; y No. — . 
 The Amity Canal and Reservoir Company, a Corpora- 
 tion ; The Rocky Ford Canal, Reservoir, Land, Loan 
 and Trust Company, a Corporation ; The Fort Lyon 
 Canal Company, a Corporation ; The Colorado Land and 
 Canal Company ,a Corporation ; The Great Plains Water 
 Company, a Corporation ; The Arkansas Valley Sugar- 
 beet and Irrigated Land Company, a Corporation ; The 
 Colorado Fuel and Iron Company, a Corporation, and 
 The Bent Otero Improvement Company, a Corporation, 
 Defendants. 
 
 Replication of the Complainant to the Separate Answer of the De- 
 fendant The Colorado Fuel and Iron Company. 
 
 Comes now the said The State of Kansas, complainant, saving 
 and reserving to itself all and all manner of advantage and excep- 
 tion which may be had and taken to the manifold errors, uncertain- 
 ties and insufficiencies of the answer of the defendant The Colorado 
 Fuel and Iron Company to the amended bill of complaint, filed 
 herein, for replication thereunto says that it does and will aver, 
 maintain and prove its said amended bill of complaint to be true, 
 certain and sufficient in the law to be answered unto by the said de- 
 fendant, and that the answer of the said defendant is very uncer- 
 tain, evasive and insufficient in the law ,to be replied unto by this 
 complainant; without this, that any other matter or thing in the 
 said answer contained material or effectual in the law to be replied 
 unto and not herein and hefe|by well and sufficiently replied unto, 
 confessed or avoided, traversed or denied is true; all which matters 
 and things this complainant is ready to aver, maintain and prove as 
 this honorable court shall direct ; and the said complainant humbly 
 prays as in and by its said amended bill it has already praved. 
 
 C. C. COLEMAN, 
 
 Attorney-General 
 
 N. H. LOOMIS, 
 
 F. DUMONT SMITH, 
 
 S. S. ASHBAUGH, 
 
 Attorneys for Complainant. 
 
THE STATE OF COLORADO FT AL. 
 
 229 
 
 [Endorsed:] Supreme Court U. S. October term, 1903. Term No- 
 7, original. The State of Kansas, complainant, vs. The State of 
 Colorado et al. Replication of the complainant to the separate an- 
 swer of defendant The Colorado Fuel and Iron Co. Filed March 7, 
 
 1904. 
 
 And afterwards, to wit, on the 14th day of March, A. D, 1904, a 
 motion was filed in the words and figures following, viz: 
 
 In the Supreme Court of the United States, October Term, 1903. 
 The State of Kansas, Complainant, 
 
 v. 
 
 This State of Colorado et al., Defendants, j 
 Motion on Behalf of the United States for Leave to Intervene. 
 In the Supreme Court of the United States, October Term, 1903. 
 This State of Kansas, Complainant, 
 
 Original. 
 
 v. 
 
 The State of Colorado et al., Defendants, j 
 
 Motion on Behalf of the United States for Leave to Intervene. 
 
 The Attorney-General, on behalf of the United States, moves the 
 court for leave to intervene in the above-entitled cause, and for such 
 purpose to file therein its petition, a copy of which is attached hereto, 
 marked “'AT 
 
 As cause for this motion it is shown — 
 
 1. The cause presents several questions of law of general public 
 interest, the determination of which will affect the public domain 
 of the United States and the navigability of interstate streams. 
 
 2. The cause presents several questions of law, the determination 
 of which will affect the administration and enforcement of several 
 acts of Congress, and especially the so-called reclamation act of June 
 17, 1902 (32 Stat., 388). 
 
 3. The United States owns several thousands of acres of arid lands 
 in Colorado and Kansas, within the watershed of the Arkansas 
 river, which will be vitally affected by the determination of the 
 questions of law involved in said cause. 
 
 4. The questions of law presented in said cause are of such char- 
 acter that their determination will vitally affect the interests of the 
 United States and the general welfare. 
 
 P. C. KNOX, 
 
 Attorney-General. 
 
230 
 
 THE STATE OF KANSAS VS. 
 
 In the Supreme Court of the United States, October Term, 1903. 
 
 The State of Kansas, Complainant, 1 
 
 v. >No. 7, Original. 
 
 The State of Colorado et al, Defendants. I 
 
 Notice of Motion on Behalf of the United States for Leave to 
 
 Intervene. 
 
 In the Supreme Court of the United States, October Term, 1903. 
 
 The State of Kansas, Complainant, 1 
 
 v. > No. 7, Original. 
 
 The State of Colorado et al., Defendants. 1 
 
 Notice of Motion on Behalf of the United States for Leave to 
 
 Intervene. 
 
 To The State of Kansas, complainant in the above-entitled suit, and 
 to The State of Colorado, The Bessemer Ditch Company, The Ox- 
 ford Farmers’ Ditch Company, The Otero Canal Company, The 
 Laguna Company (in the amended bill of complaint by mistake 
 called The Lake Canal Company), The Riverside Ditch Company, 
 The Catlin Consolidated Canal Company, The Graham Ditch 
 Company, The Lamar Land and Canal Company, The Amity 
 Canal and Reservoir Company, The Rocky Ford Canal, Reser- 
 voir, Land, Loan and Trust Company, The Fort Lyon Canal 
 Company, The Colorado Land and Canal Company, The Great 
 Plains Water Company, The Arkansas Valley Sugar-beet and 
 Irrigated Land Company, The Colorado Fuel and Iron Company, 
 and The Bent-Otero Improvement Company, defendants therein : 
 
 You, and each of you, are hereby notified that on Monday, 
 March 14, 1904, the Attorney-General of the United States will, on 
 behalf of the United States, move the above court for leave to inter- 
 vene in the above-entitled cause and for such purpose to file therein 
 its petition. A copy of said proposed motion and petition are here- 
 with attached. 
 
 P. C. KNOX, 
 
 Attorney-General. 
 
 Copy of enclosed notice served on me March 2d, 1904. 
 
 C. C. COLEMAN, Att’y Gen. 
 
 [Endorsed :] Supreme Court U. S. October term, 1903 Term 
 No. 7, orig’l. The State of Kansas, complainant, vs. The State of 
 Colorado et al. Motion on behalf of the U. S. for leave to intervene,, 
 with notice and acceptance of service. Filed March 14, 1904. 
 
THE STATE OF COLORADO ET AL 
 
 231 
 
 And on the same day, to wit, the 14th day of March, A. D. 1904, 
 the following entry appears of record, viz : 
 
 In the Supreme Court of the United States, October Term, 1903. 
 
 The State of Kansas, Complainant,') 
 
 vs. >No. 7, Original. 
 
 The State of Colorado et al. ) 
 
 Mr. Solicitor General Hoyt submitted to the consideration of the 
 court a motion for leave to the United States to intervene herein. 
 March 14th, 1904. 
 
 And on the same day, to wit, on the 14th day of March, A. D. 
 1904, the following order appears of record, viz : 
 
 In the Supreme Court of the United States, October Term, 1903. 
 
 The State of Kansas, Complainant,! 
 
 vs. >No. 7, Original. 
 
 The State of Colorado et al. j 
 
 On motion of Mr. Platt Rogers of counsel for the defendants, 
 leave is hereby granted to file a motion to dismiss herein, and said 
 motion was ordered to be submitted on printed briefs on or before 
 April 29th next. 
 
 March 14th, 1904. 
 
 And on the same day, to wit, the 14th day of March, A. D. 1904, 
 a motion was filed in the words and figures following, viz: 
 
 In the Supreme Court of the United States, October Term, 1903. 
 
 The State of Kansas, Complainant, 
 
 v. 
 
 The State of Colorado et al., Defendants. 
 
 1 No. 7, Original. 
 
 Motion on Behalf of the Arkansas Valley Sugar Beet and Irrigated 
 Land Company et al., to Dismiss. 
 
 In the Supreme Court of the United States. 
 
 The State of Kansas, Complainant, 
 
 y. 
 
 The State of Colorado et al., Defendants. 
 
 Now come the defendants, The Arkansas Valley Sugar Beet and 
 Irrigated Land Company, The Graham Ditch Company, The Colo- 
 
 I Original Proceeding 
 j No. 7. Motion. 
 
232 
 
 THE STATE OF KANSAS VS. 
 
 ,rado Fuel & Iron Company, The Fort Lyon Canal Company, The 
 Rocky Ford Canal, Reservoir, Land, Loan and Trust Company, The 
 Catlin Consolidated Canal Company, The Oxford Fanners Ditch 
 Company and The Lake Canal Company, and jointly and severally 
 move the court to dismiss the bill and all proceedings herein as 
 against said defendants, for want of jurisdiction, as apparent on the 
 bill, the separate answers of said defendants and the replications 
 filed thereto : 
 
 1st. Because it appears by the bill and the several separate answers 
 that the controversy is between the State of Kansas and citizens and 
 residents of Kansas, as the owners of lands along the Arkansas river 
 in said State, claiming certain rights, as riparian proprietors, in the 
 flow of said river, and said defendants, as appropriators of the waters 
 of said river in Colorado, claiming the right to divert and use said 
 waters for irrigation purposes adversely to the claims of each and 
 all of said owners of lands in Kansas, and that all or a representa- 
 tive part of said owners of lands in Kansas are necessary parties to 
 a determination of said controversy. 
 
 2nd. Because it appears by the several answers filed herein that 
 certain citizens and residents of the State of Kansas are the owners 
 of lands in Colorado, under certain canals of said defendants and 
 appropriators and users, through said canals, of the waters of said 
 Arkansas river adversely to the claims of the owners of lands along 
 said river in said State of Kansas, and that they are necessary parties 
 to a determination of the controversy. 
 
 3rd. Because, notwithstanding the State of Kansas and the several 
 citizens and residents of said State owning lands along the Arkansas 
 river in said State, or some of them, may have been original 1} T 
 entitled to the continued flow of the waters of said river, as claimed 
 in the bill of complaint, it appears by the several answers filed herein 
 that each and all of the said owners of lands have lost, waived,; 
 surrendered or abandoned all right to the flow of said river as 
 against said defendants and by their conduct are estopped to assert 
 or maintain their said claim, and they are therefore necessary parties 
 to a determination of the rights asserted by said defendants to the 
 waters of said river. 
 
 4th. Because, in the several separate answers filed herein, certain 
 citizens and residents of the State of Kansas, owners of land along 
 said river in said State, in whose behalf said bill was filed, are 
 named as persons not entitled to the relief demanded in said bill, 
 by reason of laches, estoppel, surrender or abandonment or by the 
 operation of the statutes of limitation of the State of Kansas, and 
 certain others are named as not entitled to the relief demanded be- 
 cause the title to their said lands was acquired from the Govern- 
 ment of the United States, subject to the vested and accrued rights of 
 said defendants to the use of the waters of said river in the State of 
 Colorado for irrigation purposes; that all of said persons so named, 
 together with all other persons in the like situation, are necessary 
 
THE STATE OF COLORADO ET AL. 
 
 233 
 
 parties to a determination of the rights of said defendants, as alleged 
 in said several answers. 
 
 5th. Because the coinnlainant, instead of excepting to the suf- 
 ficiency of the allegations of said separate answers, concerning the 
 rights of said defendants against the citizens and residents of Kan- 
 sas owning land along said Arkansas river in Kansas, and suggest- 
 ing the necessity of their being made parties to this proceeding, and 
 instead of in any way seeking a determination of the questions 
 thus presented in advance of further hearing, has filed its reply 
 traversing the allegations made in said answers and has assumed 
 the right to have said issues determined, but without making said 
 citizens and residents of Kansas parties, to the end that the claims 
 made by said defendants as against said persons may be established 
 and said persons thereby concluded. 
 
 6th. Because the issues tendered by the pleadings filed herein do 
 not disclose a controversy justiciable in this court within the mean- 
 ing of the Constitution and statutes of the United States which 
 create and define the original jurisdiction of this court. 
 
 PLATT ROGERS, 
 
 JOHN F. SHAFROTH, 
 FRANK E. GREGG, 
 
 Attorneys of the Arkansas Valle}' Sugar Beet 
 
 and Irrigated Land Company. 
 
 C. C. GOODALE, 
 
 Attorney of the Graham Ditch Company. 
 
 D. C. BEAMAN, 
 
 Attorney of the Colorado Fuel and Iron Company. 
 
 C. E. GAST, 
 
 Attorney of the Fort Lyon Canal Co. 
 
 F. A. SABIN, 
 
 Attorney of the Rocky Ford Canal, Reservoir, Land, Loan 
 and Trust Company, the Catlin Consolidated Canal Co., 
 the Oxford Farmers Ditch Company and the Lake Canal 
 Company. 
 
 In the Supreme Court of the United States. 
 
 The State of Kansas, Complainant, 
 vs. 
 
 The State of Colorado et al., Defendants. 
 
 To the State of Kansas, complainant in the above entitled suit : 
 
 You are hereby notified that on Monday, March 14th, 1904, the 
 undersigned will on behalf of the several individual defendants 
 named move the above court for leave to file their motion to dis- 
 miss the bill of complaint and the proceedings herein, a copy of said 
 motion being hereto attached, and upon the filing of the same will 
 
234 
 
 THE STATE OF KANSAS VS. 
 
 upon said date apply to said court to fix a day for the argument of 
 said motion. 
 
 PLATT ROGERS, 
 
 JOHN F. SHAFROTH, 
 FRANCIS E. GREGG, 
 Attorneys for the Arkansas Sugar Beet 
 
 and Irrigated Land Company. 
 
 C. C. GOODALE, 
 
 Attorney for the Graham Ditch Company. 
 
 D. C. BEAMAN, 
 
 Attorney for the Colorado Fuel & Iron Company. 
 
 C. E. GAST, 
 
 Attorney for the Fort Lyon Canal Company. 
 
 F. A. SABIN, 
 
 Attorney of the Rocky Ford Canal, Reservoir, Land, Loan 
 & Trust Company, the Catlin Consolidated Canal Com- 
 pany, the Oxford Farmers Ditch Company and the Lake 
 Canal Company. 
 
 Due service of the foregoing notice and of the motion to dismiss 
 therein referred to is hereby acknowledged to have been made on 
 the attorney general of Kansas at Topeka, Kansas, this 7" day of 
 March, A. D. 1904 at 2 o’clock. 
 
 C. C. COLEMAN, 
 
 Attorney General of the State of Kansas, 
 Per JAY F. CLORE, 
 
 Ass’t Att’y Gen’l. 
 
 Endorsed : In the Supreme Court of the United States. The State 
 of Kansas v. The State of Colorado et al. No. 7, original. 
 
 Endorsed : Supreme Court, U. S., October term, 1903 Term No. 
 7, orig’l. The State of Kansas, complainant, vs. The State of Colo- 
 rado et al. Motion on behalf of the Arkansas Valley Sugar Beet & 
 Irrigated Land Company et al., to dismiss. Filed Mar. 14", 1904. 
 
 And afterwards, to wit, on the 21st day of March A. D. 1904, the 
 following order appears of record, viz : 
 
 In the Supreme Court of the United States, October Term, 1903. 
 
 The State of Kansas, Complainant, } 
 
 vs. I No. 7, Original. 
 
 The State of Colorado et al. ] 
 
 On consideration of the motion of the United States for leave to in- 
 tervene in this cause, 
 
 It is now here ordered by the court that said motion be, and the 
 same is hereby granted. 
 
 March 21st, 1904. 
 
THE STATE OF COLORADO ET AL. 
 
 235 
 
 And on the same day, to wit, on the 21st day of March, A. D. 
 1904, a petition of intervention was filed in the words and figures 
 following, viz : 
 
 In the Supreme Court of the United States, October Term, 1903. 
 
 The State of Kansas, Complainant, | 
 
 v. >No. 7, Original. 
 
 The State of Colorado et al., Defendants. ] 
 
 Petition of Intervention on Behalf of the United States. 
 
 P. C. Knox, Attorney-General. 
 
 In the Supreme Court of the United States, October Term, 1903. 
 
 The State of Kansas, Complainant, | 
 
 v. V No. 7, Original. 
 
 The State of Colorado et al., Defendants. I 
 
 Petition of Intervention on Behalf of the United States. 
 
 To the honorable the Chief Justice and the associate justices of the 
 
 Supreme Court of the United States: 
 
 Comes now the United States of America, by Philander C. Knox, 
 Attorney-General, and by leave of the court first had and obtained 
 files this its petition of intervention in the above-entitled cause, and 
 alleges and shows as follows : 
 
 1. That the Arkansas river mentioned and described in complain- 
 ant’s bill of complaint is a natural stream of water and has its rise 
 and source in the Rocky mountains, in the State of Colorado ; thence 
 flows through said State in a southeasterly and easterly direction 
 for approximately 280 miles to a point on the boundary line which 
 separates Kansas and Colorado, near the thirty-eighth degree north 
 latitude, at which point it enters the State of Kansas; thence flows 
 easterly, southeasterly, northeasterly, and southeasterly through the 
 last-named State, a distance of about 310 miles to a point about 6 
 miles east of the ninety-seventh degree west longitude, where it en- 
 ters the Territory of Oklahoma; thence flows through said Terri- 
 tory, the Indian Territory, and the State of Arkansas, and enters into 
 the Mississippi river at the eastern boundary of said State. That 
 said stream is not navigable in the States of Colorado and Kansas 
 and the Territory of Oklahoma, but is navigable in the State of Ar- 
 kansas and in the Indian Territory. 
 
 2. That all the lands lying within the watershed of said stream 
 west of the ninety-ninth degree longitude are situated in what is 
 known as the arid region of the United States — that is, within that 
 part of the United States where the normal annual rainfall is not 
 
236 
 
 THE STATE OF KANSAS VS. 
 
 sufficient to supply the moisture necessary to enable the soil to pro- 
 duce by cultivation agricultural or other crops in paying quanti- 
 ties. 
 
 3. That within the watershed of said stream west of the ninety- 
 ninth degree longitude there are about 1,000,000 acres of lands be- 
 longing to the United States which are now uninhabitable, unpro- 
 ductive, and unsalable, for the reason that the normal annual rain- 
 fall does not supply sufficient moisture to enable the soil to produce 
 crops in paying quantities. 
 
 4. That only by means of irrigation — that is by taking and di- 
 verting the waters of said stream and its tributaries, or by impound- 
 ing and storing the flood and other watersarising in said watershed, 
 and conducting the waters so taken, diverted, impounded, and 
 stored to and upon the lands in said watershed so owned by the 
 United States — can any of said lands be reclaimed from their arid 
 condition, rendered inhabitable and salable, and made to produce 
 crops in paying quantities. 
 
 5. That because of the insufficient rainfall in the arid region to 
 supply the moisture necessary to render the soil capable of produc- 
 ing crops in paying quantities, and for the reason that the lands in 
 said arid region can only be made to produce crops in such quan- 
 tities by irrigation, the common-law doctrine of riparian rights has, by 
 usage and custom of the inhabitants in said region, and by statute 
 law of some of the States and Territories in which the arid region is 
 situated, been abrogated, and in lieu thereof there has grown up and 
 been established the doctrine that the waters of natural streams, also 
 the flood and other waters in said region, may be impounded, appro- 
 priated, diverted, and used for the purposeof reclaimingand irrigating 
 the arid lands therein, and for other lawful and beneficial purposes; 
 and that the prior appropriation of such waters, followed by the con- 
 tinuous use for and application to the purposes named, gives a right in 
 and to the waters appropriated superior to any right or rights asserted 
 or claimed by the owner or owners of riparian lands bordering oil 
 the stream from which the appropriation is made or in which said 
 waters would otherwise flow, and superior to any right or rights 
 claimed or asserted under any and all subsequent appropriations of 
 said waters. 
 
 6. That it would seem, from Congressional legislation, from the 
 decisions of this court and from executive acts, the United States has 
 sanctioned and approved the aforesaid usage, custom, and statute 
 law respecting the abrogation of the common- law doctrine of ripa- 
 rian rights, and respecting the doctrine of the appropriation and use 
 of waters for irrigation and other beneficial purposes, and has rec- 
 ognized that the common-law doctrine of riparian rights is inap- 
 plicable to the public lands owned by it in the arid region, and as 
 applicable thereto has approved the doctrine in respect to the ap- 
 propriation and use of water for irrigation and other beneficial pur- 
 poses, provided such appropriation and use does not tend to destroy 
 
the; state: of Colorado ft al. 
 
 237 
 
 or interfere with the navigability of the streams into which such 
 waters flow. 
 
 7. That in accordance with and in reliance upon the above-men- 
 tioned recognized doctrine respecting the appropriation and use of 
 waters for irrigation and for other beneficial purposes, the inhabit- 
 ants of the arid region in the United States have, by appropriating 
 and using upon the arid lands the waters of natural streams, also 
 flood and other waters, reclaimed and made productive and profit- 
 able not less than 10,000,000 acres of land, which now provide 
 homes for and support a population of several millions; that 
 in accordance with and in reliance upon said doctrine the 
 inhabitants of Colorado and Kansas, within the watershed of 
 the Arkansas river, by appropriating and using upon the lands 
 within said watershed the waters of said river and its tributaries, 
 have reclaimed and made productive and profitable about 200,000 
 acres of land, which have provided and now provide homes for and 
 support a population of many thousands. 
 
 8. That the common-law doctrine of riparian rights is inapplica- 
 ble to riparian lands within the arid region; for if such doctrine 
 were held to be applicable to riparian lands in said region, and en- 
 forced, the lands in said region belonging to the United States would 
 forever remain uninhabitable, unproductive, and unsalable, and the 
 area of ten million acres now irrigated therein, and supporting a 
 population of several million people must be deprived of water for 
 irrigation and be returned to its original desert condition ; that only 
 by the application to the lands in both public and private owner- 
 ship in the arid region of the doctrine in respect to the appropria- 
 tion and use of the waters of natural streams, of flood and other 
 waters, for irrigation and other beneficial purposes, can such lands 
 continue productive and additional large areas be reclaimed and 
 rendered inhabitable, productive, and salable. 
 
 9. Acting upon the assumption that only the doctrine respecting 
 the appropriation and use of the waters of natural streams and of flood 
 and other waters, for irrigation and other beneficial purposes, was 
 applicable to the public lands in said region, Congress passed an 
 act, which was approved by the President June 17, 1902 (32 Stat., 
 388), commonly called and hereinafter referred to as the “ reclama- 
 tion act,” the object, intent, and purpose of which act is to promote 
 the interests of the United States and to enhance the general wel- 
 fare by providing the means whereby reservoirs and dams may be 
 erected and maintained by the United States in the arid region to 
 catch, store, and impound the unappropriated waters of the natural 
 streams in said region, and the flood and other waters arising within 
 the watersheds of said streams, to the end that said waters may be 
 used to reclaim, render inhabitable and salable, and make produc- 
 tive and profitable the lands now belonging to the United States 
 within the arid region and other lands in private ownership in said 
 region which could not otherwise be used to raise agricultural crops. 
 
 10. That not less than 60,000,000 acres of land belonging to the 
 
238 
 
 THE STATIC OF KANSAS VS. 
 
 United States within the arid region, which are now uninhabitable, 
 unproductive, and unsalable, can be reclaimed and rendered in- 
 habitable, productive, and salable, provided that under said act 
 reservoirs and dams are erected and maintained to catch, store, and 
 impound the unappropriated waters of natural streams in said 
 region, and to catch, store, and impound the flood and other waters 
 therein, and provided such waters when stored and impounded are 
 conducted to and used upon such arid lands as by said act intended. 
 
 11. That the amount of land now owned by the Government 
 which can be so reclaimed and made inhabitable, productive, and 
 salable will, when so reclaimed, provide homes for and support a 
 population of many millions. 
 
 12. That within the watershed of the Arkansas river, west of the 
 ninety-ninth degree west, about 100,000 acres of land, belonging to 
 the Government, which are now uninhabitable, unproductive, and 
 unsalable, can be reclaimed and rendered inhabitable, productive, 
 and salable, provided reservoirs and dams are erected and constructed 
 to catch, store, and impound unappropriated waters of said river, as 
 above described, and the flood and other waters arising within its 
 watershed ; and provided such waters, when so stored and im- 
 pounded, are conducted and used upon said lands for the purpose of 
 reclaiming and irrigating the same. 
 
 13. That the lands situated in said watershed west of the ninety- 
 ninth meridian west, which can be so reclaimed and irrigated, will, 
 when so reclaimed and irrigated, be capable of supporting a popula- 
 tion of not less than 50,000. 
 
 14. That the officers of the United States whose duty it is to ad- 
 minister said act and to enforce its provisions are now endeavoring 
 to carry it into effect, and have already expended about $1,000,000 
 in exploring for, selecting, procuring, and setting apart sites upon 
 which reservoirs and dams contemplated by the act can be con- 
 structed and maintained; that said officers have let contracts, under 
 the provisions of said act, for the erection and construction of reser- 
 voirs and dams which, when completed, will cost over $2,000,000 
 and will have a storage capacity of water sufficient to reclaim and 
 make productive, inhabitable, and salable not less than 500,000 
 acres of the arid lands belonging to the United States, which land, 
 when so reclaimed, will sustain a population of not less than 250,000 ; 
 and that by surveys and investigations already made under said 
 reclamation act plans of irrigation are under consideration for the 
 irrigation of about 1,000,000 acres more of arid public lands, at a 
 probable cost of over $20,000,000. 
 
 15. That there is now available, under the provisions of said act, 
 the sum of more than sixteen millions ($16,000,000) of dollars, for 
 the procuring, selecting, and setting apart of reservoir sites and for 
 the constructing and maintaining of reservoirs and dams; and that 
 the proceeds from the disposal of public lands will add to the fund 
 at the rate of several millions of dollars per year. 
 
 16. That the State of Kansas, in and by its amended bill of com- 
 
THE STATU OF COLORADO ET AL. 
 
 239 
 
 plaint herein, claims that it owns riparian lands in the valley of 
 said Arkansas river, in said State, and as such riparian owner con- 
 tends that it is entitled to a decree compelling the State of Colorado 
 and its inhabitants to permit all the waters of the Arkansas river 
 within the State of Colorado to flow into the State of Kansas unin- 
 terrupted, unimpeded, and undiminished. That such contention on 
 the part of said State in effect challenges the validity of the doctrine 
 which prevails in the arid region in respect to the waters of natural 
 streams, and of flood and other waters, which doctrine the Govern- 
 ment of the United States has sanctioned and approved, and the 
 maintenance of which is essential to the interests of the United States 
 and the general welfare of the citizens thereof. 
 
 17. That the State of Colorado, in and by its answer to the com- 
 plainant’s amended bill of complaint, contends that all the waters 
 of the Arkansas river and its tributaries, and all the waters within 
 the watershed of said river from whatsoever source arising in said 
 State, belong to it in its sovereign capacity ; and that as such owner, 
 and in its sovereign capacity, it can authorize its inhabitants to di- 
 vert and appropriate all the waters of the Arkansas river within the 
 boundaries of said State, leaving none thereof to flow into the State 
 of Kansas for the use of said State or its inhabitants, or for the use 
 of the United States, notwithstanding said State of Kansas or its 
 inhabitants, or the United States may have previously made appro- 
 priations of water from said river in Kansas and used said waters 
 continuously since said appropriations were made, in the reclama- 
 tion and irrigation of lands in said State, orfor any lawful and bene- 
 ficial purposes. This contention on the part of the State of Colorado, 
 if sustained, would limit, by State lines, the aforesaid doctrine of 
 prior appropriation, as applied to interstate streams; would permit 
 said State to assert an absolute dominion over and a sole ownership 
 of the waters within said State flowing within the natural beds of 
 the Arkansas river and other interstate streams; would allow it to 
 authorize its inhabitants to appropriate and use all of said waters 
 to the damage of prior appropriations in adjoining and other States 
 through which said interstate streams extend, irrespective of whether 
 such prior appropriate rs were individuals, States, or the United 
 States ; and would tend to destroy the navigable capacity of the 
 Arkansas river and other interstate streams. 
 
 18. That neither the contention of the State of Colorado nor the 
 contention of the State of Kansas is correct; nor does either conten- 
 tion accord with the doctrine prevailing in the arid region in respect 
 to the waters of natural streams and of flood and other waters. That 
 either contention, if sustained, would defeat the object, intent, and 
 purpose of the reclamation act, prevent the settlement and sale 
 of the arid lands belonging to the United States, and especially 
 those within the watershed of the Arkansas river west of the ninety- 
 ninth degree west longitude, and would otherwise work great dam- 
 age to the interests of the United States. 
 
 19. That the passage of the reclamation act is the first direct and 
 
240 
 
 THE STATE OF KANSAS VS. 
 
 positive declaration of the intention of the Congress of the United 
 States to undertake active operations in relation to its dominion and 
 control over the unappropriated waters on the public domain from 
 time to time, as feasible irrigation projects are found on any stream, 
 which can be developed for purposes beneficial to the United States 
 and all of the citizens thereof ; and that while no definite action has 
 as yet been determined upon with reference to the application of the 
 terms and conditions of said act to the Arkansas river, it may be 
 deemed desirable for the proper authorities of the United States, act- 
 ing under the Secretary of the Interior, to commence operations 
 upon said river at any time; and it therefore becomes important 
 and necessary to determine the status of the United States and the 
 extent and character of its interests, its powers, its control, and its 
 rights as to the disposal of the unappropriated water of said river, 
 at the earliest possible opportunity consistent with the progress of 
 the case in which this petition for intervention is filed. 
 
 20. This petitioner therefore prays that it may be permitted to 
 intervene in this case and court, and may be permitted to take 
 proofs, examine witnesses, and be heard in argument; and also, that 
 this petitioner shall have such other aud further relief in the prem- 
 ises as shall be found agreeable to equitv and good conscience. 
 
 P. C. KNOX, 
 
 Attorney-General. 
 
 [Endorsed:] Supreme Court U. S. October term, 1903 Term 
 No. 7, origi The State of Kansas, complainant, vs. The State of 
 Colorado et al. Petition of intervention on behalf of the United 
 States Filed March 21, 1904 
 
 And afterwards, to wit, on the 29th day of April, A. D. 1904, an 
 appearance for complainant was filed in the words and figures fol- 
 lowing, viz : 
 
 Order for Appearance. 
 
 Supreme Court of the United States, October Term, 1903. 
 
 The State of Kansas, Comp’t, ) 
 
 vs. > No. 7, Orig’l. 
 
 The State of Colorado et al. | 
 
 The clerk will enter my appearance as counsel for the complain- 
 ant. 
 
 (Name.) F. DUMONT SMITH, 
 
 (P. O. Address.) Kinsley, Kan. 
 
 jf^grNoTE. — Must be signed by a member of the bar of the Su- 
 preme Court United States. Individual and not firm names must be 
 signed. 
 
 [Endorsed :] Supreme Court U. S. October term, 1903 Term 
 No. 7, orig’l. Appearance for comp’t Filed April 29, 1904 
 
TttE STATE OE COLORADO ET AT. 24 1 
 
 And on the same day, to wit, the 29th day of April A. D. 1904, a 
 motion was filed in the words and figures following, viz : 
 
 In the Supreme Court of the United States. 
 
 The State of Kansas, Complainant, 
 vs. 
 
 The State of Colorado et al 
 Motion. 
 
 Now come- the complainant above named and moves the court for 
 leave to file its answer to the bill of intervention herein filed by the 
 United States. 
 
 C. C. COLEMAN & 
 
 F. DUMONT SMITH, 
 Attorneys for Complainant. 
 
 Endorsed: Supreme Court, U. S., October term, 1903. Term No 
 7, orig’l. The State of Kansas, complainant, v. The State of Colo- 
 rado et al. Motion of complainant for leave to file answer to petition 
 of intervention. Filed April 29, 1904. 
 
 And afterwards, to wit, on the 29th day of April, A. D. 1904, the 
 following order appears of record, viz: 
 
 In the Supreme Court of the United States, October Term, 1903. 
 
 The State of Kansas, Complainant, ) 
 
 vs. >No. 7, Original. 
 
 The State of Colorado et al. j 
 
 On motion of Mr. F. Dumont Smith, of counsel for the complain- 
 ant, leave is hereby granted to file the answer of the State of Kansas 
 to the intervention of the United States herein. 
 
 April 29th, 1904. 
 
 And on the same day, to wit, the 29th day of April, A. D. 1904, 
 an answer was filed in words and figures following, viz : 
 
 16-7 
 
242 
 
 The sTate Of eansAs Vs. 
 
 In the Supreme Court of the United States, October Term, 1903. 
 
 The State of Kansas, Complainant, 1 
 
 vs. V No. 7, Original. 
 
 The State of Colorado et al., Defendants, j 
 
 Answer of the State of Kansas to the Petition of Intervention on 
 Behalf of the United States. 
 
 In the Supreme Court of the United States, October Term, 1903. 
 
 The State of Kansas, Complainant, 1 
 
 vs. V No. 7, Original. 
 
 The Statu of Colorado et al., Defendants. ) 
 
 Answer of the State of Kansas to the Petition of Intervention on 
 Behalf of the United States. 
 
 This complainant, now and at all times hereafter saving to itself, 
 all and all manner of benefit or advantage of exception or otherwise 
 that can or may be had or taken to the many errors, uncertainties 
 or imperfections in the said petition of intervention, for answer 
 thereto, or to so much thereof as this complainant is advised it is 
 material or necessary for it to make answer to, answering, says: 
 
 That it denies each and every, all aud singular the allegations 
 contained in said petition of intervention which are contrary to or 
 in conflict with the amended bill of complaint filed herein. 
 
 C. C. COLEMAN, 
 
 Attorney-General, 
 
 N. H. LOOMIS, 
 
 F. DUMONT SMITH. 
 
 S. S. ASHBAUGH, 
 
 Attorneys for Complainant. 
 
 [Endorsed:] Supreme Court U. S. October term, 1903. Term 
 No. 7, orig’l. The State of Kansas, complainant, vs. The State of 
 Colorado et al. Answer of the State of Kansas to petition of inter- 
 vention of the United States. Filed April 29, 1904. 
 
 And afterwards, to wit, on the 2d day of May, A. D. 1904, the fol- 
 lowing entry appears of record, viz : 
 
 In the Supreme Court of the United States, October Term, 1903. 
 
 The State of Kansas, Complainant, ] 
 
 vs. yNo. 7, Original. 
 
 The State of Colorado et al. i 
 
 The motion to dismiss the bill of complaint herein was submitted 
 to the consideration of the court on printed arguments by Mr. Platt 
 
THE STATIC OP COLORADO Ft AL. 
 
 243 
 
 Rogers, Mr. John F. Shafroth, Mr. Frank E. Gregg, Mr. C. C. Good- 
 ale, Mr. D. C. Beaman, Mr. C. E. Gast, and Mr. F. A. Sabin, in sup- 
 port of the same, and Mr. C. C. Coleman, Mr. N. H. Loomis, Mr. F. 
 Dumont Smith, and Mr. S. S. Ashbaugh, in opposition thereto. 
 
 May 2d, 1904. 
 
 And afterwards, to wit, on the 16th day of May, A. D. 1904, the 
 following order appears of record, viz : 
 
 In the Supreme Court of the United States, October Term, 1903. 
 
 The State of Kansas, Complainant, | 
 
 vs. >No. 7, Original. 
 
 The State of Colorado et al. I 
 
 It is ordered by the court that the further consideration of the mo- 
 tion to dismiss herein be, and the same is hereby, postponed until 
 the hearing of the cause on its merits. 
 
 May 16th, 1904. 
 
 And on the same day, to wit, on the 16th day of May, A. D. 1904, 
 a motion was filed in words and figures following, viz : 
 
 In the Supreme Court of the United States, October Term, 1903. 
 
 The State of Kansas, Complainant, ) 
 
 vs ^ • • 
 
 The State of Colorado et al., Defendants; l ^°' ^ r ^ na ^’ 
 
 The United States, Intervener. j 
 
 Motion for Appointment of a Special Commissioner to Take 
 
 Testimony. 
 
 Come now the complainant, the defendants and the intervener in 
 the above-entitled cause, by their respective attorneys, and move the 
 court that Granville A. Richardson, a member of the bar of this 
 court, and a resident of the Territory of New Mexico, be appointed 
 a special commissioner, under the rules of the court, relating to 
 masters in chancery, to take the testimony in this cause and to 
 report the same to the court without findings of fact or his conclu- 
 sions of law. 
 
 THE STATE OF KANSAS, 
 
 C. C. COLEMAN, Attorney General, 
 
 Bv , Its Attorneys. 
 
 “ THE STATE OF COLORADO ET AL., 
 
 By N. C. MILLER, Att’y Gen’l, Their Attorneys. 
 
 THE UNITED STATES, Intervener, 
 
 By P. C. KNOX, Attorney General. 
 
£44 
 
 THE STATIC OF E A NS AS Vfc. 
 
 Endorsed : In the Supreme Court of the United States, October 
 term, 1903. The State of Kansas, complainant, v. The State of 
 Colorado et al., defendants, The United States, intervener. No. 7, 
 original. Motion for appointment of a special commissioner to take 
 testimony and report the same. 
 
 Endorsed : Supreme Court U. S., October term, 1903. Term No 7, 
 original. The State of Kansas, complainant, vs. The State of Colo- 
 rado et al. Motion for appointment of special commissioner to 
 take testimony, Filed May 16, 1904. 
 
 And on the same day, to wit, on the 16th day of May, A. D. 1904, 
 the following order appears of record, viz : 
 
 In the Supreme Court of the United States, October Term, 1903. 
 
 In Equity. 
 
 The State of Kansas, Complainant, ) 
 
 The Static of Colorado et al. ; The United j ^°‘ 1 ’ O-iginal. 
 
 States, Intervenor. J 
 
 This cause coming on to be beard on the application of the par- 
 ties duly appearing by their counsel, for the appointment of a 
 special commissioner to take testimony herein, and their stipulation 
 in regard to the same heretofore filed by leave, said application and 
 stipulation having been duly considered; 
 
 It is ordered that Granville A. Kichardson, a member of this bar 
 and a resident of the Territory of New Mexico, be and he is hereby, 
 appointed a commissioner to take and return the testimony in this 
 cause, with the powers of a master in chancery as provided in the 
 rules of this court; but said commissioner shall not make any 
 findings of fact or state any conclusions of law. 
 
 It is further ordered, that the taking of testimony on complainant’s 
 behalf shall begin on or before tbs fifteenth day of July, A. D. 1904, 
 at such place as counsel for complainant may designate, ten days’ 
 notice thereof to be given to counsel for defendants, and for the 
 United States respectively, and shall be concluded on or before 
 the fifteenth da} 7 of September, A. D. 1904, and that the taking of 
 the testimony on behalf of the defendants shall commence on or be- 
 fore the first day of October A. D. 1904, and be concluded on or be- 
 fore the first day of February, A. D. 1905, ten days’ notice of the 
 place where such testimony will be taken being given to counsel for 
 complainant and to the counsel for the United States. 
 
 That the taking of testimony on behalf of the United States as 
 intervenor shall commence on or before the fifteenth day of Febru- 
 ary A. D. 1905, and be concluded on or before the fifteenth day of 
 March, A. D. 1905, ten days’ notice of the place where such testi- 
 mony will be taken being given to counsel for complainant and de- 
 fendants, respectively. 
 
TilE STATE OE COLORADO ET AL. 
 
 215 
 
 That testimony in rebuttal shall then be taken, five days’ notice 
 of the place being given, and shall be concluded on or before the 
 fifteenth day of April, A. L). 1905, on which day the taking of testi- 
 mony in the cause shall be closed. 
 
 Said commissioner shall report to the court the testimony taken 
 by him without findings of fact or conclusions of law, with all con- 
 venient speed, and shall receive, as agreed by the parties, fifteen 
 dollars per day for his compensation, and his actual expenses, an 
 itemized statement of which shall accompany his report. 
 
 A stenographer, or stenographers to take and transcribe the tes- 
 timony may be employed by agreement of the parties, the com- 
 pensation for whose services shall be reported by the commissioner 
 to be taxed in the costs. 
 
 May 16th, 1904. 
 
 And afterwards, to wit, on the 29th day of November A. D. 1904, 
 a motion was filed in words and figures following, viz : 
 
 Supreme Court of the United States, October Term, 1904. 
 The State of Kansas, Complainant, ) 
 
 vs. 
 
 The State of Colorado et al., Defendants;^ 0, ^ Oiiginal. 
 The United States, Intervener. j 
 
 Motion for Leave to Print and File Abstract of Evidence. 
 
 Now comes the complainant, The State of Kansas, by C. C. Cole- 
 man, the attorney general for the State of Kansas, also comes The 
 State of Colorado and the other defendants by N. C. Miller , attorney 
 general for the State of Colorado, also comes The United States, in- 
 tervenor by Frank L. Campbell, Assistant Attorney General, and ask 
 that the court make an order that the parties be allowed to prepare 
 an abstract of the evidence taken and to be taken in the above 
 entitled cause and for leave to print said abstract and to file it with 
 the clerk of the court in lieu of printing the original evidence ; and 
 that the parties be allowed to file the original evidence as taken by 
 the commissioner without printing the same ; and that the parties 
 be allowed to print the abstract upon terms to be agreed upon 
 among themselves. 
 
 C. C. COLEMAN, 
 
 Attorney General of Kansas. 
 
 N. C. MILLER, 
 
 Attorney General of Colorado. 
 
 FRANK L. CAMPBELL, 
 
 Assistant Attornev General of the U. S. 
 
246 
 
 THE STATE OF KANSAS VS. 
 
 Endorsed : In the Supreme Court of the United States. State 
 of Kansas, complainant, vs. State of Colorado et al., defendants, The 
 United States, intervenor. Motion for leave to print and file ab- 
 stract of evidence. 
 
 Endorsed : Supreme Court, U. S., October term, 1904. Term 
 No. 7, original. The State of Kansas, complainant, v. The State of 
 Colorado et al. Motion for leave to print and file abstract of evi- 
 dence. Filed Nov. 29, 1904. 
 
 And on the same day, to wit, on the 29tli day of November, A. D. 
 1904, the following order appears of record, viz : 
 
 Supreme Court of the United States, October Term, 1904. 
 
 The State of Kansas, Complainant, ) 
 
 The State of Colorado et al., Defendants; f^ 0, 0 Original. 
 
 The United States, Intervenor. J 
 
 On motion of Mr. Assistant Attorney General. Campbell of coun- 
 sel for The United States, intervenor herein, and on consent of coun- 
 sel for the respective parties to this cause, 
 
 It is now here ordered bv the court that the parties to this cause 
 be permitted to prepare and print an abstract of the evidence taken 
 and to be taken in this cause, and to file the same with the clerk of 
 this court in lieu of the printing of the original evidence. 
 
 It is further ordered that the commissioner appointed by this 
 court to take and report the evidence in this cause shall, as soon as 
 the evidence is taken and completed, file a written report of the 
 same with the clerk of this court. 
 
 And it is further ordered that the parties be allowed to print said 
 abstract at their own expense. 
 
 November 29th, 1904. 
 
 And afterwards, to wit, on the 30th day of January, A. D. 1905, a 
 stipulation was filed in the words and figures following, viz : 
 
 In the Supreme Court of the United States, October Term, 1904. 
 
 The State of Kansas, Complain- ) 
 ant, 
 
 vs. 
 
 The State of Colorado et al., De- 
 fendants ; The United States, In- 
 tervenor. 
 
 )■ No. 7, Original. 
 
 i 
 
 j 
 
 In Equity. 
 
 It is hereby stipulated and agreed, by and between the complain- 
 ant, The State of Kansas, and the defendants, The State of Colorado 
 
THE STATE OF COLORADO ET AL. 
 
 247 
 
 et al., and The United States of America, intervener, that the inter- 
 venor shall immediately commence the introduction of its evidence 
 and shall conclude the same within sixty (60) days from this date : 
 
 That the State of Colorado, et al., shall have sixty (60) days there- 
 after in which to conclude the taking of its evidence, and that there- 
 after the State of Kansas shall have thirty (30) days in which to 
 conclude the taking of its evidence, whereupon the taking of evi- 
 dence shall be concluded. 
 
 >Dated at Denver, Colorado, this 20th dav of January, A. D. 1905. 
 
 N. C. MILLER, 
 
 Attorney General of Colorado. 
 
 C. C. COLEMAN, 
 Attorney General of Kansas. 
 
 A. C. CAMPBELL, 
 
 Special Assistant to Attorney-General of the United States. 
 
 Endorsed : In the Supreme Court of the United States. State of 
 Kansas, complainant, vs. State of Colorado, defendant, United 
 States of America, intervenor. Stipulation. 
 
 Endorsed : Supreme Court, U. S. October Term, 1904. , Term 
 No. 7, orig’l. The State of Kansas, complainant, v. The State of 
 Colorado et al. Stipulation as to taking testimony. Filed Jan. 30, 
 1905. 
 
 And on the same day, to wit, on the 30th day of January, A. D. 
 1905, the following order appears of record, viz : 
 
 In the Supreme Court of the United States, October Term, 1904. 
 
 The 
 
 The State of Kansas, Complainant, 
 vs. 
 
 State of Colorado et al. ; The United 
 States, Intervenor. 
 
 No. 7, Original. 
 
 On motion of Mr. Assistant Attorney General Campbell, of counsel 
 for the United States, and in pursuance of a stipulation of counsel 
 for the respective parties this day filed, 
 
 It is now here ordered by the court that the United States, as in- 
 tervenor, shall begin to take its evidence in said cause on the 20th 
 day of January, 1905, and shall finish the taking of same within 
 sixty days thereafter ; that The State of Colorado and the other de- 
 fendants shall have sixty days thereafter to present and finish taking 
 their evidence ; and that the State of Kansas shall have thirty days 
 thereafter in which to present and finish taking its evidence in said 
 cause. 
 
 January 30th, 1905. 
 
 And afterwards, to wit, on the 26th day of September, A. D. 1905, 
 a motion was filed in the words and figures following, viz ; 
 
248 
 
 THE STATE OF KANSAS VS. 
 
 In the Supreme Court of the State of Kansas. 
 
 The State of Kansas, Complainant, 
 
 The State of Colorado et al, Defendants; The f ^ r ^ na ^* 
 
 United States, Intervenor. j 
 
 Motion to Assign Case for Argument, &c. 
 
 Comes now C. C. Coleman, attorney general of the State of Kansas, 
 and in behalf of the said complainant, The State of Kansas, moves 
 this honorable court that a rule or an order be entered in this cause 
 advancing the same upon the docket of the court and setting the 
 same down for final argument before this court at a time to be fixed 
 by the court, and a further rule or order specifying the time within 
 which briefs and written arguments for the said complainant, the 
 said defendants, and the said intervenor shall be filed with this pro- 
 ceeding, and such other and further orders in connection with the 
 assignment of said cause for final hearing as to the court shall seem 
 just, equitable, and reasonable. 
 
 C. C. COLEMAN, 
 Attorney General of Kansas. 
 
 N. H. LOOMIS, 
 
 F. DUMONT SMITH, 
 
 S. P. ASHBAUGH, 
 
 Of Counsel. 
 
 (Endorsed :) Supreme Court U. S., October term, 1905. Term No. 
 7, original. The State of Kansas, complainant, vs. the State of Col- 
 orado et al. Motion to fix day for hearing of cause and for an order 
 as to filing of briefs. Filed Sept. 26th, 1905. 
 
 And afterwards, to wit, on the 10th day of October, A. D. 1905, 
 the following entry appears of record, viz : 
 
 Supreme Court of the United States, October Term, 1905. 
 
 The State of Kansas, Complainant, | 
 
 vs. >No. 7, Original. 
 
 The State of Colorado et al. I 
 
 Mr. C. C. Coleman, of counsel for the complainant, submitted to 
 the consideration of the court a motion to fix a day for the hearing 
 of this cause, and leave was granted counsel for the defendants to 
 file a brief in relation thereto. 
 
 October 10, 1905. 
 
THE STATE OF COLORADO ET AL. 
 
 249 
 
 And afterwards, to wit, on the 16th day of October, A. D. 1905, 
 the following order appears of record, viz : 
 
 Supreme Court of the United States, October Term, 1905. 
 
 The State of Kansas, Complainant, 
 vs. 
 
 The State of Colorado et al. ; The United 
 States, Intervenor. 
 
 1 
 
 i 
 
 Y No. 7, Original. 
 
 On consideration of the application of all parties to this cause to 
 fix a day for the hearing of this cause — 
 
 It is now here ordered by the court that this cause be, and the 
 same is hereby, assigned for argument on Tuesday, October 9th 
 1906. 
 
 It is further ordered that counsel for the State of Kansas file their 
 briefs within three months hereafter; that counsel for the State of 
 Colorado et al. file their briefs within three months thereafter ; and 
 that counsel for the United States be allowed three months to file 
 briefs thereupon. 
 
 October 16, 1905. 
 
 The abstract of evidence prepared under the order of November 
 29, 1904, follows : 
 
250 
 
 THE STATE OF KANSAS VS. 
 
 In the Supreme Court of the United States. 
 
 The State of Kansas, Complainant, ) 
 
 vs. ! No. 7, Original, October 
 
 The State of Colorado et al., De- { Term, 1904. 
 
 fend ants. J 
 
 Abstract of Evidence. 
 
 Appearances. 
 
 Attorneys for complainant: C. C. Coleman, attorney general of 
 Kansas ; S. S. Ashbaugli, N. H. Loomis, F. Dumont Smith, of coun- 
 sel ; 
 
 Attorneys for defendant, the State of Colorado : Nathan C. Miller, 
 attorney-general of Colorado, Irving B. Melville, assistant attorney 
 general of Colorado; Joel F. Vaile, Charles D. Hayt, Platt Rogers, 
 Charles W. Waterman, Frank E. Gregg, Clyde C. Dawson, of coun- 
 sel ; 
 
 Attorneys for the Colorado Fuel & Iron Company : David C. Bea- 
 man, Cass E. Herrington, Fred Herrington, E. Parmalee Prentice ; 
 
 Attorneys for the Arkansas Valley Sugar Beet & Irrigated Land 
 Company: Platt Rogers, John F. Shafroth, Frank E. Gregg; 
 
 Attorneys for the Fort Lyon Canal Company : Charles E. Gast, 
 H. L. Lubers ; 
 
 Attorney for the Rocky Ford Canal, Reservoir, Land, Loan & Trust 
 Company ; the Catlin Consolidated Canal Co. ; the Oxford Farmers 
 Ditch Company and the Lake Canal Company : F. A. Sabin ; 
 
 Attorney for the Graham Ditch Company : C. C. Goodale : 
 
 Attorneys for the United States as intervenor: Henry M. Hoyt, 
 Solicitor General ; Frank L. Campbell, assistant attorney general for 
 the Interior Department; A. C. Campbell, special assistant to the 
 Attorney General. 
 
 Stipulation in Regard to Objections. 
 
 It is hereby stipulated and agreed by the parties to this suit that 
 each party hereby retains the right to refer to and insist upon any 
 and all objections made by such party appearing in the original 
 record, without repetition in this abstract. Such objections as shall 
 be insisted upon shall be referred to in the briefs of counsel. 
 
 It is further stipulated and agreed that the defendants duly ob- 
 jected — 
 
 First. To all evidence with reference to the navigation of the Ar- 
 kansas river and the effect upon such navigation of irrigation in 
 the State of Colorado. 
 
 Second. To all evidence with reference to a certain power plant 
 or canal located in the vicinity of Arkansas City, Kansas, and the 
 
THE STATIC OF COLORADO ET AL. 
 
 251 
 
 effect upon the supply of water for said canal said to have been pro- 
 duced by irrigation in the State of Colorado. 
 
 Third. To all evidence with reference to irrigation in western 
 Kansas, and particularly with reference to the priority of right to 
 the use of water for irrigation in western Kansas. 
 
 Fourth. To all evidence with reference to the effect in other States 
 of taking water in Colorado for irrigation from streams other than 
 the Arkansas river. 
 
 Fifth. To the opinions of all witnesses as to the effect upon the 
 administration of the reclamation act and to the effect upon other 
 States of the doctrine giving the State having the source of supply 
 of the natural streams the prior right to use the waters of those 
 streams for irrigation. 
 
 The evidence covered by the above objections was all objected to 
 as incompetent, irrelevant and immaterial under the issues in this 
 case. 
 
 Direct Evidence on Behalf of the State of Kansas. 
 Witnesses testified as follows: 
 
 Wichita, Kansas, August 15-21, 1904. 
 
 M. M. Murdock, Wichita, Kansas. 
 
 Direct examination. 
 
 By Mr. Ashbaugh : 
 
 (Note. — The marginal numerals following refer to the pages in 
 the original record). 
 
 1 I am sixty-seven years of age; I came to Wichita in the 
 winter of 1871 or the spring of 1872 and have lived here 
 
 thirty-two years. I established the “ Wichita Eagle” in 1872 and 
 have been editor of it ever since. I have been acquainted with the 
 Arkansas river since June, 1860, at which time I first saw 
 
 2 the river near where Hutchinson is now located and followed 
 it up to the springs at its .fountain head beyond where the 
 
 city of Leadville is now located, and have been up and down it 
 many times since. 
 
 The Arkansas river rises on the east side of the continental divide, 
 near the Frying Pan, Tin Cup, Iowa gulch and Tennessee pass, in 
 the State of Colorado, and flows south and southeast into the State 
 of Kansas; it then flows through Kansas into Oklahoma, Indian 
 Territory, and the State of Arkansas and empties into the Missis- 
 sippi, flowing about two hundred and fifty or three hundred miles 
 through the State of Kansas. The elevation at Wichita is about 
 1,326 feet, and at the west Kansas line about 3;600 feet. There are 
 four streams in the State of Kansas which flow into the Arkansas 
 river and have a natural, annual, and continuous flow. These 
 
 3 are the Little Arkansas at Wichita, Cow creek at Hutchinson, 
 the Ninnescah, about twenty-five miles south of Wichita, and 
 
252 
 
 THE STATE OF KANSAS VS. 
 
 the Walnut at Arkansas City. There are no streams above Hutchin- 
 son in the State of Kansas emptying into the Arkansas river that 
 have a continuous flow. Three ol the streams named flow into the 
 Arkansas river from the north side and one from the south side. 
 The Ninnescah is about one hundred or one hundred and twenty- 
 five miles long, flowing into the Arkansas river from the 
 
 4 south. When I struck the Arkansas river, first, on June 6, 
 1860, it was at the time of the great trans-Mississippi drought, 
 
 the greatest ever known, when it didn’t rain from September, 1859, 
 to November, 1860. It was not a very large river. I at that time 
 by digging down in the valley for water for myself and teams ascer- 
 tained that there was an underflow that went east, to the river, and 
 out of that came my hobby — and the Eagle was the first paper that 
 advanced such a theory — that the agriculture of this valley was 
 largely influenced by the underflow, and I called it “sub-irrigation.” 
 It is hard to say how much of a stream the Arkansas river was from 
 the time I saw it in 1860 down to 1885. The Arkansas river rises 
 in June or July and stays up until the June rise runs out. We call 
 them “June rises.” Then herds of Texas cattle would have to swim 
 the river to get over to the other banks. We kept a ferry here in 
 the early days instead of a bridge, and we thought the river had 
 been navigable, and we nominated Tom Ryan, now First Assistant 
 Secretary of the Interior, for Congress upon that issue. We got the 
 appropriations from year to year until the stream commenced to 
 play out from the ditches, and then I told Mr. Ryan to “cut it out.” 
 He went before the Committee on Rivers and Harbors, and they told 
 him he probably knew more about that river than they did. They 
 thought they knew the most because the engineers and ex- 
 
 5 perts said it was navigable to Wichita. The ferry was here 
 before I came here in 1872. The first bridge was built across 
 
 the Arkansas river at Wichita in 1872, and Complainant’s Exhibit 
 A-l (introduced in evidence) is a photograph of that first 
 
 6 bridge and is a correct picture of the same. This bridge was 
 located on Douglas avenue. It was about a thousand feet 
 
 long, with eight or nine spans. This bridge stayed there five or six 
 or seven years and the new bridge was built on the site of the old 
 bridge. 
 
 I should say that Exhibit A-l shows the river at the average 
 stage [of the water. You see it is ten or twelve or fourteen 
 
 7 feet from that bridge down to the water, which was the aver- 
 age stage it used to be. Originally, the lightest flow of the 
 
 Arkansas river was in the winter time, and the river would com- 
 mence to shrink along in July or August, and would then remain 
 practically stationary until the spring following, except occasional 
 precipitations on the plains — cloud bursts, rainstorms or something 
 of that kind. The Arkansas river ordinarily commences to make 
 a show with the spring rains in February and March, and generally 
 reaches its highest state in the June rise, which is really about July, 
 and the months of May, June and July may properly be called the 
 
THE STATE OP COLORADO ET AL. 
 
 253 
 
 wet season of the year so far as the flow of the river is concerned, 
 and so far as the river is concerned the balance of the year 
 
 8 may be called the dry season. The picture shown as Exhibit 
 A-l might have been taken as late as 1877 or 1878, and was pub- 
 lished in a directory which I printed in the year 1878. This picture 
 was taken from the south side of the bridge and from the east side of 
 the river, the river flowing almost due south at the city of Wichita. 
 Exhibit A-2 (introduced in evidence) is a picture of the new bridge, 
 taken from the south side of the bridge and the west side of the 
 river. This is the present bridge, and shows eight spans. As the 
 
 river kept dwindling away we kept taking spans out of the 
 
 9 original bridge, taking two from the east and one from the 
 west side, leaving five spans in the bridge now. I have caught 
 
 fish where the Union mill stands now. Probably in the eighties I 
 took up the question with the Secretary of War of the fact of ditches 
 being built in Colorado and western Kansas, and of the fact that 
 people here in the city were filling in our river, and I wanted to stop 
 it, and it was my understanding that the Secretary of War controlled 
 navigable rivers, and the Arkansas is a navigable river under the 
 law. His answer to me was that in the absence of some en- 
 
 10 abling act he could probably not do anything. Then I com- 
 menced the racket in the newspaper that brought about this 
 
 contention here today. 
 
 Exhibit A-3 (introduced in evidence) is a picture of the bridge 
 across the Arkansas river at Douglas avenue in the city of Wichita, 
 taken from the south side of the bridge and east side of the river, 
 showing the bridge with seven spans. This picture shows the river 
 a little low. The sand bar formed below the middle pier in- 
 
 11 dicates that the river was low; but I couldn’t give the num- 
 ber of courses of stone in the abutments which would show 
 
 when the river was low. During the seventies the average flow of 
 the river during the dry season of the year was such that if a fellow 
 didn’t want to go across the bridge he could ford it, and he did. I 
 would sometimes go down there with the teams for water and there 
 would probably be three or four feet of water. It wouldn’t run up 
 to the bed of the wagon; and this would be something like the 
 average flow of the water during the dry season of the year. For 
 the last ten years during the dry season of the year there has some- 
 times been no flow at all. In 1891 or 1892 there was no flow of 
 water above the mouth of the Little Arkansas at all, and the river 
 was perfectly dry. For the last four, five, six, or seven years 
 
 12 every once in a while in the summer time from the mouth of 
 the Little river up there would be no flow at all in the main 
 
 bed of the Arkansas river. The Little Arkansas river is a continu- 
 ous stream that comes from other streams, and the Big river would 
 be dry from here to Hutchinson, I think, certainly. In both the 
 years 1901 and 1902 there was no water in the Arkansas river, I 
 think I would be safe in saying, and I doubt if there was any in 
 1903. The average flow of the river during the dry season of the 
 
254 
 
 THE STATE OF KANSAS VS. 
 
 year has been materially decreased since about the years 1885 to 
 1890, and the aggregate flow of the year round has been de- 
 creased. Of course we have had floods. We had one here the 
 other day that spread over the town, which came from the Little 
 Arkansas, and the Big river was up and choked the outflow 
 
 13 of the Little river. This last flood lacked about eighteen 
 inches of being as high as the flood of 1877, when the river 
 
 was two or three feet higher and went over our town. These two 
 are the only floods that have been disastrous or very high. Every 
 year, of course, comes the June rise, and that would affect the bot- 
 toms west of us here somewhat. I suppose the decrease in the aver- 
 age flow of the river during the dry season comes because the Colo- 
 rado fellows have sequestered our water, and is because of irrigating 
 ditches up the river. There is an underflow of waters from the 
 base of the Rocky mountains to the Mississippi river. There is a 
 river here a thousand feet deep under us — loose gravel and 
 
 14 sand. But what I mean by an underflow is that immedi- 
 ately under the surface, within eight or ten feet, anywhere in 
 
 this valley, you strike water. This water has a perceptible flow. I 
 originally discovered the underflow by digging a series of holes on 
 different nights to get water for myself and the oxen. The dust 
 would blow in, and one night I sprinkled some bran on the surface 
 of the water and next morning when I got up it was on the south 
 or southeast side of the hole. I called the attention of the 
 Government man to it and he said he had found the same thing. 
 This Government agent reports that the underflow was moving at 
 the rate of eight or nine feet in twenty-four hours. The Arkansas 
 river ordinarily rises in June, while the Ninnescah would rise the 
 same time fifteen or twenty miles south, which rises out here on the 
 plains, showing that there is a free circulation of the river 
 
 15 waters over into the Ninnescah. The direction of the underflow 
 is generally southeasterly. If you spread something on the 
 
 surface of the water in a hole you will find in the morning that the 
 surface has moved with the direction of the river. If the overflow 
 affects the Ninnescah, then it is twenty miles wide anyhow. My 
 home is a mile and a half east of the Big river and the water comes 
 into my cellar. During the flood of July 7, 1904, three of my 
 
 16 cellars had three or four feet of water in them, and when the 
 river went down the water went out. If I had pumped the 
 
 water out of my cellar it would have come in again as long as the 
 river was up. This water did not come from the surface but from 
 the seepage. When the river is full the water out in that valley is 
 much nearer the surface than when the water in the river is low. 
 After we lost our water in the river the farmers in what we call the 
 bottom lands complained that their corn crops were not as strong as 
 when we had more water in the Big river, because, as I say, this 
 sub-irrigation, this water that came up near the surface, 
 
 17 benefited the corn. 
 
$HK S'TATK OP* COLORADO lCT At. 
 
 
 Cross-examination. 
 
 By Mr. Dawson : 
 
 537 I first saw the river in .June, 1860. By meandering the river 
 I mean that we followed it with our ox teams. I was not acting 
 
 538 in any official capacity or representing any government. We 
 were out for a buffalo hunt, with the intention of winding up 
 
 in the gold country. We came up the Neosha river and crossed the 
 divide between the Neosha and the Little Arkansas, and I suppose 
 struck the Big Arkansas about half way between Wichita and the 
 city of Hutchinson. The Little Arkansas, as I remember it, was a 
 delightful stream of clear running water. Compared with what we 
 know of it to-day, it was probably low, but it had running water at that 
 time, and I have never seen it since when it didn’t have. That was 
 a dry year, and there was no rain from September, 1859, to 
 
 November, 1860. We kept on the banks of the river 
 
 539 and hunted buffalo. There were millions of buffalo then. 
 And when we got on the south side of the river we would 
 
 wade. I can’t tell how deep it was, but we could ford it. It was at 
 
 a pretty low stage compared with the river in later years. I 
 
 left Council Grove or Emporia about the lltli of June, and 
 probably struck the Arkansas about the 15th of June. We 
 celebrated the Fourth of July where Pueblo now is, and the inter- 
 vening time was consumed in going between the point where I 
 struck the river and that place. When we got up the river a little 
 way, somewhere probably toward Bent’s old fort, the water was so 
 low in the river that we dug holes to get water to drink ; that 
 
 540 is, in the margin of the river we dug wells. In the vicinity 
 of where Dodge City is now located, in the evening after a 
 
 hot day there would be hardly any flow at all, and my impression is 
 that from Dodge City up to Bent’s old fort we didn’t strike water 
 of any amount. It seemed to come up in the night. And as we 
 approached the mountains we found plenty of water. I think that 
 in the region where Coolidge and Garden City are now located the 
 river was especially dry, and we began to find some water 
 
 541 again at Bent’s fort. Bent’s old fort was located near the 
 present town of Lamar. As we proceeded toward the moun- 
 tains from Bent’s old fort, we found the flow of water in the river 
 increasing, and at Pueblo there was considerably more water in the 
 river than at Bent’s fort. The river was more particularly dry at 
 that time from Fort Dodge to Fort Bent during the evening or after- 
 noon of the day. The last buffalo we killed was away up beyond 
 Great Bend probably twenty or thirty miles. There was some water 
 
 there, because when the buffalo used to go over the bank it 
 
 542 was great sport for us to see them go into the water head over 
 heels. At that time in the vicinity of Pueblo, Colorado, there 
 
 543 were evidences of a prior settlement of Mexicans or Mormons. 
 When we got up to where the Fountain comes out of the 
 
 mountains there was a little shanty town there — Colorado City. I 
 
sTAtfF of ic ANSAs VS. 
 
 2M 
 
 cannot recall whether or not there were any crops raised in that 
 locality. From Colorado City we passed over into South Park, and 
 from there onto the Arkansaw river at Iowa gulch, the first gulch 
 this side of California gulch. At that time the mesas or plateaus 
 looking out from the mountains this side of Leadville were heavily 
 timbered, and from Leadville down on this side of the Arkansas 
 river all those mesas were heavily timbered, and over on 
 
 544 Tennessee pass the same conditions existed. The forests 
 were immense. I have been in that country since. The tim- 
 ber lias been all cut off. I was there a year ago. On the first trip 
 I did not go up the Arkansas river to where Canyon City is now lo- 
 cated. We left the river at the present town of Pueblo. I don’t 
 
 know whether irrigation was being carried on at the point 
 
 545 where Canyon City is now located at that time. Ingoing up the 
 river we dug holes for water for ourselves and cattle through 
 
 western Kansas and eastern Colorado. The water in the river was 
 warm, and when we stopped to camp we would dig a hole, and 
 then the water would be cooler. We did this several times. With 
 our ox teams we would make only seven or eight miles a day. It 
 was at this time that I formed a theory in regard to the underflow. 
 One of the boys spilled some bran in one of the holes and it had 
 gone to the other side of the hole, and I said “ This is an under- 
 ground river.” The hole was sunk close to the river, in the sand. 
 It was within such limits as would likel} 7 be covered by the 
 
 546 river w r aters when the river was high. We didn’t notice this 
 peculiarity of things moving on the surface at any other time 
 
 on that trip. The hole that I have spoken of was located at some 
 place between Dodge City and Bent’s old fort, and the river at the 
 point where this hole was sunk was running in an easterly or 
 
 547 southeasterly direction, and the bran moved in the same di- 
 rection. I have no recollection as to the way the wind was 
 
 blowing over the water at the particular time when this bran was in 
 the hole. We didn’t sink any holes out any distance from 
 
 548 the bank of the river. At places the river would almost dis- 
 appear at night, and in the morning there would be quite a 
 
 flow of water. We had only one shower on that trip. When we 
 reached the mountains most of the snow had disappeared. The 
 basin or drainage at the headwaters of the Arkansas river is 
 
 549 quite limited. The Arkansas river at Leadville is but a 
 brook. The old Santa Fe trail crossed the river somewhere, I 
 think, not veiy far beyond Bent’s fort. There was considerable 
 
 550 water at the crossing. The bottom was hard. Between 1860 
 and 1870 I didn’t have any particular familiarity with the 
 
 Arkansas river. I located at Wichita in the winter of 1871-2. The 
 first bridge was built after I came to Wichita. At that time 
 
 551 they forded the river. The ferry was just above. This was 
 a Texas cattle shipping point. They generally crossed right 
 
 below Douglas avenue. I would go down to the river in June and 
 
257 
 
 THE STATE OF COLORADO KT AL. 
 
 July and see the cattle mixed up in the water, swimming 
 
 552 around and around. That is the only recollection I have of 
 the water that summer. The first bridge was a toll bridge. 
 
 I tbink the bridge stock paid some dividends. We consented that 
 if they would not put more than fifteen cattle in a bunch they might 
 cross the bridge. The large herds forded the river. The valley 
 between the Cow Skin and Ninnescah commenced to settle up rap- 
 idly bv 1872, and by 1873 pretty nearly every quarter section 
 
 553 was taken. During the fall and winter months a large part 
 of the travel forded the river. My recollection is that the 
 
 river ordinarily in the fall of the year was fordable, and especially 
 for city teams or anything like that, along from knee deep to belly 
 deep. That is the way it stood. It shrank more in the winter than 
 at any other time. My recollection is that the old bridge had a 
 stone abutment on this side, a big, heavy stone abutment, but what 
 the distance was between the end of the street and the end of 
 
 554 the bridge I cannot recall. Not a very great distance, I 
 think. 
 
 555 The second bridge was built about 1879. I don’t know 
 how long it was made. It seems to me it was about a thou- 
 sand feet. It was a bridge of eight spans of one hundred feet each. 
 After it was constructed two of the spans on the east side and one 
 on the other side of the river were taken out, I think. The bridge 
 
 was narrowed three hundred feet. At the time of building 
 
 556 the new bridge I was conducting a paper and had a good 
 deal to say as to the wisdom of building a bridge long enough 
 
 to take care of the water at high-water times. I have been protest- 
 ing against the filling of this river for a good many years. It has 
 been my judgment, and I have said through the paper, that the 
 shortening up of the bridge and the narrowing of the channel was 
 injuring the city. When the present bridge was built I had in 
 mind the flood of 1877 ; that was the largest flood that ever came 
 down the river at this point. It was greater than the flood 
 
 557 of this year. This last flood was more on account of the Little 
 river than the Big river. The Douglas Avenue bridge in 
 
 this city was built in 1879 or 1880 in reference to the flood of 1877. 
 I would not like to say that it was built higher, because it is too un- 
 certain in my mind. I suppose we discussed this thing, and my 
 understanding is that the rule in building a bridge is to build it 
 large enough — that is, high enough and long enough — to 
 
 558 take care of the high water. During the first ten or fifteen 
 years after I came to Wichita the flow of water in the Big 
 
 river was greater than it has been for the last ten years. In ordi- 
 nary stages it does not come up as high on the piers of the bridge 
 as formerly. The conclusion I draw is that the waters go out into 
 the ditches of Colorado and only a small percentage of them return 
 to the river. In 1860 when there were no ditches there was plenty 
 of water at Pueblo and there was none at Dodge Ci ty r ; but that was an 
 
 17—7 
 
258 
 
 THE STATE OF KANSAS VS. 
 
 exceptional year. We have not had such a year since. The 
 
 559 water was in the underflow and the underflow comes 
 from that great distance. I know that more water falls 
 
 in eastern Kansas up to the Flint hills than in this section 
 of Kansas. There is more water here than at Dodge, and more 
 at Dodge than at the State line, and in eastern Colo- 
 
 560 rado and western Kansas very little water falls at all. 
 We get our supply for the water works at Wichita from 
 
 an island in the river, where we go down thirty or forty feet with 
 six-inch pipes and put a suction pump in, and we get Colorado water, 
 without any question. The American Water Works Company, that 
 new water works, made a certificate of the fact and told me that out- 
 side of the lime — minerals — in the water here we have as pure 
 water as any city in the United States. Now, it could not be the 
 seepage of these plains and be as pure as that. I distinguish the 
 Kansas water from the Colorado water because our waters are harder 
 than the Colorado waters, but it flows through five hundred miles of 
 shale and sand, and that shale is rotten shells, and it is lime. 
 
 562 The water, of course, becomes impregnated with the lime. I 
 don’t mean that the water which we get in our wells is Colo- 
 rado water; I mean the water in the water works wells is Colorado 
 water. In sinking these pipes down, at the lower end of them the 
 gravel is very scarce and there must be a free flow of water, because 
 we have enough water over there on that little island to supply a 
 million inhabitants; so there must be an immense underflow there, 
 and I think it comes from Colorado rather than the drainage of 
 
 Kansas because of its depth down there. I don’t think it 
 
 563 draws its supply from the river. It is on an island, and I 
 don’t think if the river were dry it would affect the water 
 
 works wells. Of course the river is all around and over it. If the 
 river were dry there at the surface and for a hundred miles above 
 to the gorge, not a drop of water coming through the gorge, we 
 would still have ample water in the underflow. I think practically 
 all the precipitation of these mountains on this eastern slope never 
 reaches the plains on the surface at all ; it goes down through those 
 rocks. I don’t think it is accumulated in the river above. You can 
 go down there and put a well down twenty or thirty feet and 
 
 564 it goes into the air. Well, that is Rocky Mountain water. 
 That is artesian water. The water at the water works is not 
 
 artesian. These plains were once a lake, and its bed was sand and 
 gravel, and the chances are that the water falling on the rocks in 
 the mountains of Colorado gets down onto the old gravel bed of 
 that lake and seeps clear through this country, ojear to the Missis- 
 sippi. We have sunk wells here one thousand feet deep and found 
 the valley underlaid with sand all the way. I never saw anything 
 else but sand and gravel. This last well sunk up here is about 
 twelve or thirteen hundred feet, and I being editor of a paper, of 
 course they would send me in every day some of the stuff they took 
 out, a bottle at a time, and I don’t remember getting anything up 
 
TflE STATE OF COLORADO ET AL. 
 
 259 
 
 near the packing house — it is two miles from the river — anything 
 but gravel and sand — anything but coarse gravel. There is another 
 river channel over here four or five miles, an old channel of the 
 river, and in my judgment the river may in different periods 
 have run in different channels. I am told that when the 
 June flood comes or formerly came in the Big river the waters in the 
 bed of the Ninnescah would rise, and between the Ninnescah and 
 the Big river, say at Hutchinson and along there, the hills are sandy ; 
 they are called sand hills; and I concluded years ago that the water 
 was percolating away so freely that it only took three or four days 
 after a big rise came before it got clear down through into that river. 
 As to the water conditions on the Platte river and from there 
 
 566 to the Bed river on the south, as I have said before, that 
 whole country was underlaid by sand and gravel, and that 
 
 the Bocky Mountain water percolated all through that. Of course, 
 now, there is a divide between here and the Kaw river, and a divide 
 between the Republican and the Platte. There that might not hold 
 true, but you take it from here to the Bed river, two or three hun- 
 dred miles, and it is all sandy formation, it was once a lake. Going 
 now up to the Boyal gorge, there is no soil ; it is granite. It might 
 pour down a ten-inch rainfall, and five minutes after it goes 
 
 567 down into these rocks and the water never appears again ex- 
 cept as we catch it. My notion is that the rains which fall 
 
 along the crest of the mountains sink into the ground without going 
 to the river and proceed on their course with the pitch of the 
 country, and that furnishes a great underground flow or sheet of 
 water underlying this country. I don’t know how much of a sheet 
 it is, but I can’t account for this great body of water underlying this 
 land in any other wav. The little body of water coming out of the 
 gorge — it doesn’t come out of that. That country from here to the 
 Bocky mountains is a great inclined plane, falling seven or eight 
 feet to the mile. Now, on the base of that inclined plane the sub- 
 stratum or what it is made up of is all sand and gravel. If water is 
 poured in up at the upper end, why would it not come down 
 
 568 this way ? It does. 
 
 The width of the valley here varies. Eighteen or twenty 
 miles above it will be twenty miles wide; at this point it is only 
 about five miles wide. It varies. And from the information I have 
 gathered I am inclined to think that this valley of about five miles 
 in width is practically Ailed something like one thousand feet deep. 
 I don’t know how fast this water under the surface moves. I was 
 told the other day by the United States expert that he thought it 
 went only about nine feet in twenty-four hours ; but I scouted that 
 idea. I can’t see how a country could fall eight feet to the mile and 
 the water not flow faster than that through this gravel and sand. I 
 have never made any tests myself. When I speak of the 
 
 569 Boyal gorge I mean the Grand canon of the Arkansas above 
 Canyon City. I have been through there many times and 
 
 know that it is narrow and right straight up on the sides, and that 
 
260 
 
 THE STATE OF KANSAS VS. 
 
 it is granite, and through that gorge flows the channel of the Ar- 
 kansas. My recollection is that the gorge at the bridge is about 
 twenty-five to thirty feet wide, and the walls there are about one or 
 two thousand feet high. So impressed have I been for years about 
 this underflow business and sub irrigation that I gave this locality 
 the name of “ The Nile of America.” It is like the Nile in many 
 respects. I was about the first person to publicly commence agita- 
 tion on this subject of the depletion of the waters of the Arkansas 
 river by the people of Colorado and partly by the Kansas fellows 
 too. 1 appealed to the Secretary of War or brought the fact 
 
 570 to his attention that in my judgment the lands that the Gov- 
 ernment had sold to the settlers of this country were being 
 
 deteriorated and were losing in value because you fellows out there 
 in Colorado and western Kanteas were digging ditches and taking 
 the water away. I think that was in the early eighties. I think it 
 was about fifteen or eighteen years ago that I took it up in my news- 
 paper, and I kept whacking it along pretty nearly every 
 
 571 week. I knew if something could not be done by the Inte- 
 rior Department or some authority, if it ever reached the Su- 
 preme Court it would stump the Supreme Court or anybody else. 
 This question of Colorado and the Rio Grande river in New Mexico, 
 it would be like a fellow going up the Nile and going into irrigation 
 up there. It could destroy all Egypt. But it seems to me the Su- 
 preme Court is up against one of the biggest questions that ever 
 confronted it, because in this case they will have to decide the whole 
 irrigation question, which is becoming a national question, affecting 
 a dozen or fifteen States and Territories. I cannot say how early I 
 noticed that the water in the river commenced fallingoff. It seems 
 to me it was fifteen or eighteen years ago. It was when Senator 
 
 Plum was Senator. He had an interest in a ditch out here, and 
 
 572 of course he didn’t urge the Secretary of War to do very much. 
 I think this ditch was near Garden City, Kansas, that Senator 
 
 Plum was interested in. I have never had any money interest 
 in any ditch. Mv paper stood for Kansas and the development of 
 the whole country, but when it came to a ditch question, I 
 was afraid of it. I probably discussed the construction of ditches in 
 western Kansas in my paper, but I never thought whatever they 
 might do with those ditches would affect us any. The first time I 
 had any apprehension about the ditch business was this 
 
 573 twenty-mile ditch near Garden City in which Senator Plum 
 was interested. There was an effort made, I think, about 
 
 this time to run in on a grade and catch the underflow in one ditch 
 and conduct it out to the surface for irrigating purposes. My boy 
 was in Congress and he had a scheme with some fellows. He had 
 no moneyed interest, simply a political interest. I was one of the 
 fellows that started the appropriations for the Arkansas river, and 
 we built boats out here. Senator Plum and myself and one or two 
 other fellows got up a scheme of running a fellow for Congress 
 
 574 from Topeka for this district down here, a gerrymandered 
 district, that 1 got through the State Senate myself, to get the 
 
THE STATE OF COLORADO ET AL. 
 
 261 
 
 support of the people down here for the fellows up there. The advo- 
 cacy of the navigability of the Arkansas caught them. The freight 
 rate schedules of the railroads at the present time are all based upon 
 navigable waters. The running of steam boats up and down the 
 river would give water rates for our wholesalers. Of course the en- 
 gineers sent out here were told to keep in touch with me, because at 
 that time I was quite a fellow here. One of these engineers assured 
 me that there could be a channel put through from here down to 
 Arkansas city sufficient for navigation with little boats. They 
 built their boats here at Sankey’s on the channel. A fellow 
 
 575 by the name of Walton built a flat-boat at Arkansas City and 
 put a saw mill engine on it and some kind of a wheel and 
 
 started for Wichita. He got here within ten or twelve miles and 
 went back. That must have been in 1870. They built a number 
 of boats here in the early days to haul lumber down to Arkansas 
 City. This was at the end of the railroad. There was no other road 
 in this city. The Santa Fe came here and stopped. I didn’t pay 
 much attention to it, but I know they built some boats here, little 
 flat-boats that came from Colorado down. They never carrid on any 
 commerce further than that. I don’t know but there was some 
 
 576 flour or something shipped down in the river flats. No boat 
 ever got back that went down. They didn’t go with that idea. 
 
 The river was not navigable for any practical purpose after you folks 
 commenced taking the water, and before that it was not, in my honest 
 judgment, navigable for any practical purpose. Grant once said 
 when he was lieutenant in the army that the Arkansas river would 
 be navigable from this city to its mouth if they would copper-line it, 
 and I guess he was about right, because I know how shifting those 
 sands are. According to my theory the injury to the farmers oc- 
 curred in this way : All the water being underflow water, the higher 
 the underflow was the nearer it would go to the roots of the corn. 
 In other words, when this river was bank full the year round there 
 was five or eight miles of valley here that raised great crops 
 
 577 of anything whether we ever had rain or not. I contend that 
 the surface of this ground water has fallen off by reason of 
 
 the depletion of the water in the river in Colorado. I have found 
 that out in a good many ways — by the sewers constructed in this 
 city, by a sink that I dug in 1872 or 1873. I could only dig a cellar 
 under my home three or four feet on account of running into 
 
 578 water. This cellar that I have spoken of was in the northern 
 part of the city, probably a mile east of the Big river. I still 
 
 have that place, and the cellar is deeper and the water doesn’t come 
 into it now. This cellar is about four feet underground ; the first 
 one was about three feet. When I got down to water I had to quit. 
 I put in my foundation where it was pretty damp; so that there is 
 at least a difference of a foot in the distance you could go down in 
 these two places. In a year or two I had to clean out that sink 
 
 579 and I had to go a good deal deeper to get water — I think 
 three or four feet. It was just a kitchen sink for the women 
 
262 
 
 THFJ STATE OF KANSAS VS. 
 
 580 to get rid of their extra water. My notion as to the differ- 
 ence in the level of the surface water in the last ten years as 
 
 581 compared witli the first fifteen years is that the volume of 
 water that comes down the river on an average is not over 
 
 582 one half of what it was fifteen or twenty years ago. As to the 
 surface of the water in the river during ordinary seasons, I 
 
 suppose it is lower, but there is the matter of the filling in of sand ; 
 as tlie waters of the river have been decreased the bed of the river 
 has come up — filled in. Several years ago I made an effort 
 
 583 to have the farmers in the valley organize to see what rights 
 they had. It was suggested to me that the thing to do was to 
 
 get out and see some of the farmers and organize so as to see what 
 rights they had. That was about two years ago. There had been 
 considerable discussion both oral and through the paper for years 
 before that about this matter. I know that the farmers made con- 
 tributions, but I believe the commissioners made appropriations too, 
 but I wouldn’t be certain, — the commissioners in two or three counties 
 here. I don’t know whether or not we got appropriations out of 
 any of the other counties. I know that there are windmills and 
 wells in western Kansas. About Dodge City, Garden City and that 
 country there are such wells being pumped constantly for cattle. I 
 know that the pumps cut very little figure when it comes to 
 
 585 irrigation. The strongest pump and the biggest windmill you 
 can put up will not irrigate more than an acre or two. It 
 
 would not decrease any underflow. 
 
 I never attended as delegate of any kind any meetings of irriga- 
 tion congresses held in this or Western States. I was appointed a 
 delegate once or twice. But I never went. I never go to public 
 meetings of any kind. One of these irrigation meetings or con- 
 gresses was held in this city and their proceedings were reported in 
 the papers in full from day to day. I don’t know when this 
 
 586 was. It has only been four or five or six years since we had 
 a meeting of that kind. During these irrigation congresses 
 
 what was being done in Colorado as well as in Utah and other 
 States was quite fully set forth at their meetings. I didn’t hear 
 the discussions. The lands in this valley in the vicinity of Wichita 
 have not lost in productiveness except as they have been deprived 
 of water. The corn crop here is not as sure a crop as it was fifteen 
 years ago, for the reason that the water does not come up as 
 
 587 near the surface as it did then. This year we have had one 
 or two pretty good floods of water here, I think, but it was 
 
 not from Colorado ; it was from western Kansas. They had very 
 heavy rains out there this spring, all over this western country. 
 Statistics will show that the average corn crop for the last five or 
 six years in the Arkansas valley has not been equalled by those of 
 twelve or fifteen years ago. I can’t say whether the corn crop has 
 shown a falling off in the particular years when the river was low,, 
 but the corn crops in the Arkansas valley have not been satisfac- 
 tory. 
 
THE STATE OF COLORADO ET AL 
 
 263 
 
 £>88 When I first came to this country it was mostly an un- 
 broken prairie. There was not much if any timber in the 
 country except the little strips along the water edge. The face of 
 the country is entirely changed. The planting of groves — most 
 every farmer has his little grove and orchard and everything of 
 that kind, and it has completely changed the face of the country. 
 Go out on this hill and look over this valley for twenty miles and 
 you would think it was half timber: of course it is not. A 
 
 589 great deal of sod land has been broken ; I guess two thirds of 
 our country is under the plow. The growing of this timber 
 
 and the increase of plowed land has a large climatic effect. Formerly 
 the rains came in hard floods on dry land and ran off into the stream 
 because it would not readily sink into the ground. I don’t think 
 there has been much change in the precipitation. When it falls on 
 plowed ground it goes off very slowlv and makes a more humid 
 atmosphere and is better for crops. We have fogs now where we 
 formerly had no fogs at all. The percentage of water out of any 
 given fall that would run off into the river now would be 
 
 590 less than formerly. If it should appear from statistics that 
 the falling off of the corn crop in the counties along the 
 
 Solomon, Republican and Smoky Hill country had about corre- 
 sponded with that in the Arkansas valley in the same period of 
 years, this might tend to change ray notion as to what causes the 
 falling off in this locality. Northern Kansas has worried me, 
 and of course I stand for southern Kansas; but their corn yield 
 during the last seven or eight years has been phenomenal; and in 
 southern Nebraska the same way. Those are not etreams from 
 which there is any amount of irrigation ; I don’t think there is any 
 at all. The lands are worth as much in the Arkansas valley today 
 as they ever were, on an average, but probably would not 
 
 591 sell for quite as much, that is, except during our boom times. 
 But aside from boom times they are worth as much as ever. 
 
 A good many of our land owners feel that their lands are being de- 
 teriorated in price or value, or will be, because their crops do not 
 come up to what they did formerly, which they attribute to the loss 
 of the underflow of the water. Of course values here are growing, 
 because we are a growing community. 
 
 592 Cross-examination. 
 
 By Mr. Rogers : 
 
 My paper, the Wichita Eagle, has been the vehicle, of course, for 
 keeping this thing before the people to some extent, more than any 
 other paper. There is no claim that the health of this neighbor- 
 hood or upon the lands along the river was being injured by 
 
 593 reason of this diversion of water in Colorado. I can’t see 
 why it should touch the health of the people. I have not 
 
 looked into the matter to see whether the assessed value of lands 
 and the amount of taxes paid on account of these lands has de- 
 
264 
 
 THE STATE OF KANSAS VS. 
 
 dined. All the arable lands of southern and western Kansas are 
 increasing in value because of their wheat producing qualities, and 
 of course as they increase in value they are taxed higher. As far 
 as that is concerned, we have not lost anything. My con- 
 
 594 tention — I said to those people who owned their lands, who 
 bought their farms from the Government, with the river 
 
 there, and the supposition, of course, that it would always be there, 
 “You are going to lose your river and the value of your lands will 
 deteriorate.” Now, that is the kind of argument I make. 
 
 This suit was authorized by the legislature, I think, by reason of 
 the action of the people in Cowley, Sumner, Sedgwick and Reno 
 counties acting in concert. We had to convince our own legislature 
 that we were being damaged by the loss of water. I don’t 
 
 595 expect that the counties of Hamilton, Kearney, Finney, Gray, 
 Ford, or Edwards take an interest in having this action in- 
 stituted. I don’t know. They wanted to profit by Colorado’s ex- 
 ample, I reckon. They were in fact taking out the water from the 
 river themselves to some extent. My first complaint was against 
 the western people of Kansas and not against Colorado. 
 
 Q. What the people here desire is not only to establish a rule as 
 against the people of Colorado appropriating water but also against 
 the people in western Kansas who appropriate water? (Objection.) 
 
 A. The people here desire — being afraid they would be robbed of 
 the river entirely — a decision from the Supreme Court to the effect 
 that the Arkansas river shall not be appropriated in whole, either 
 in Kansas or Colorado or by anybody else. 
 
 596 Our fight was against the other fellow not against the Kan- 
 sas fellow particularly, because the irrigation enterprises of 
 
 western Kansas have never amounted to much, and we had no par- 
 ticular fear of western Kansas. It was the big corporation ditches 
 of Colorado that convinced us that in a little while we should have 
 no water at all, and the bed would be filled with shifting sands. I 
 don’t distinguish between present irrigation enterprises in western 
 Kansas and present irrigation enterprises in Colorado ex- 
 
 597 cept as Colorado enterprises are greater than in Kansas. I 
 am not in favor of cutting out the Colorado people and allow- 
 ing western Kansas to appropriate the water. I am not in favor of 
 anybody destroying the river. My contention really was and this 
 scheme was, of course, sub-irrigation and navigability of the river 
 
 and sewerage for the cities along its course. The object of 
 
 598 this suit is to save the river for the people who settled along 
 it. 
 
 Q. That is, on this part of the river, you mean ? (Objection.) 
 
 A. Well, self preservation is the first law of life. Of course we are 
 for ourselves first. 
 
 We are perfectly willing that the people of western Kansas and 
 Colorado shall have the use of the river the same as we have or for 
 the same purposes. This excludes their use of the river for irri- 
 gation. (Objection). 
 
THE STATE OF COLORADO ET AL. 
 
 265 
 
 599 Victor Murdock is my son. He is a candidate for Congress. 
 He is before the public now. He has been in Congress only 
 
 one term and has been looking up the subject of irrigation quite ex- 
 tensively, and be is, 1 believe, — I am not certain, — at least be is 
 going to advocate or does advocate the idea of reservoir storage for irri- 
 gation purposes. I never heard him say anything about the Arkan- 
 sas river one way or another. 
 
 Q. I notice in the Eagle of August 18, 1904, that it is reported 
 that at Garden City he said that “I am going to give you 
 
 600 irrigation.” Now, does that mean anything but irrigation 
 from the waters of the Arkansas river. (Objection.) 
 
 A. Well, I don’t know. 
 
 601 I don’t know specifically or exactly of an association that 
 has been formed for the purpose of promoting, encouraging 
 
 and aiding irrigation works in Kansas utilizing waters from the 
 Arkansas river, either the upper flow or the underflow at 
 
 602 Garden City. I don’t recall having noticed their proceed- 
 ings in the Wichita Eagle. I don’t know whether the 
 Kansas statutes since 1886 authorize the taking of water in 
 
 603 western Kansas exactly as it has been done in Colorado. 
 (Objection.) 
 
 You can determine what the crops amounted to for the dif- 
 ferent years by the agricultural reports; that would he my 
 
 604 only way of getting at it. I mean to say that if we find from 
 the returns there was a large crop in any given year that that 
 
 meant that that was not a year of drought; in other words, that the 
 climatic conditions that year were all right. The small ditches in 
 Colorado didn’t take enough water to make it perceptible to us ; we 
 didn’t know that we were losing water. I didn’t make any 
 
 605 claim as to those ditches. I don’t remember any complaint 
 being made against Colorado or its ranchmen up there pre- 
 vious to the time of the digging of the big ditches or previous to the 
 time our water flow was affected. Logically, we can take it from 
 that that prior to that time these lands were not materially affected. 
 Of course I don’t know ; it is a mere matter of opinion. 
 
 Q. I want to get at how far it is thought necessary to obtain re- 
 lief against ditches in Colorado, and I want to know from your 
 knowledge of the views of the people concerned in this suit, 
 
 606 that is, those who have lands that have been affected, 
 whether this is a correct statement of their position. It is a 
 
 statement made by Senator Frederick Dumont Smith at Garden 
 City on April 16th and 17th before the Western Kansas Irrigation 
 Association. He said: “The suit of the State of Kansas against 
 the State of Colorado is a bill in equity for a permanent injunction 
 against Colorado restraining that State from granting any more 
 charters or other rights to take water out of the Arkansas river. 
 The suit will not affect any ditch now existing or appropriation of 
 water now effected or water rights now vested. It will not affect the 
 rights of any riparian owner. It is to prevent the taking of water 
 
266 
 
 THE STATE OF KANSAS VS. 
 
 from now on, not for riparian lands but for lands back on the up- 
 land, wholly non-riparian in character and many miles from the 
 river, depriving true riparian owners in Kansas of the water to 
 which they are entitled for the benefit of 11011 -riparian owners 
 
 607 in Colorado. This is the whole gist of the suit.” Is that the 
 understanding here? (Objection.) 
 
 A. I would like to make a double answer to that if it is per- 
 missible. I am referred to for my knowledge or conclusion. Indi- 
 vidually, I expected if we gained the suit it would be to the extent 
 of stopping further ditch digging, but unquestionably the great 
 majority of the land owners here who have been complaining and 
 who are back of this complaint want Colorado estopped not only 
 from digging ditches but to dry up the ditches she has already dug, 
 that is, tlie corporation ditches. I don’t think a Kansas man or 
 farmer would have any objection or raise any objection to any indi- 
 vidual owner of a ditch in Colorado or anv place else. 
 
 Examination by Mr. A. C. Campbell: 
 
 608 At the time I took the trip on the Arkansas river in 1860 
 I didn’t go to the Tennessee pass in Colorado, but I was all 
 
 around on the tributary streams around Leadville and California 
 gulch that make the Arkansas river. From Salidaor at least to Twin 
 Lakes the banks of the stream were heavily timbered, and from 
 Twin Lakes to Tennessee pass. Twin Lakes is above Salida fifteen 
 or sixteen miles, below the mouth of California gulch. It is very 
 heavily timbered from Salida to Leadville, on the west side 
 
 609 of the pass. The fact is that it was very heavily timbered on 
 both sides of the stream when I first went there in 1860. The 
 
 last time I was on the Arkanses river in Colorado was in September 
 or October, 1903. At that time the land surrounding the streams 
 was entirely denuded of its timber, that is, all the merchantable 
 timber, the big trees, were all gone. Of course there is some little 
 brush around there. I have made some examination in respect to 
 the Ohio river as to the effect of cutting timber from along its 
 banks, and the effect is that the rains are simply precipi- 
 
 610 tated into the channels of the river much more rapidly than 
 when there is timber. The water from the snows in the timber 
 
 melt more slowly than where it is open. I don’t know whether the 
 cutting of the timber from the head waters of the Arkansas river in 
 Colorado has had any effect upon the flow of the river in the dry 
 seasons here in Kansas. I never gave it any thought. 
 
 611 Redirect examination. 
 
 By Mr. Ashbaugh : 
 
 It was an exceptionally dry year from 1859 to 1860. There were 
 a number of boats came down the river from above, and a number 
 of them were moored here at our bridge; you would call them 
 
THE STATE OF COLORADO ET AL. 
 
 267 
 
 house boats, I reckon ; and I think there were at least two boats 
 built here, pretty good size boats, thirty or forty or fifty feet long 
 and ten or fifteen feet wide, to go down the river. 
 
 612 The Government engineers cleared out some snags and ob- 
 structions in the river here and built some jetties out of wil- 
 lows to force the water into the channel. They did that successfully 
 after awhile. They were regular army engineers and were here 
 carrying out the appropriations that were made. It is my recollec- 
 tion that flour and lumber were shipped down the river. 
 
 613 The Solomon and Republican valleys are great corn val- 
 leys. 
 
 18 Oliver Mulvey, Wichita, Kansas. 
 
 Direct examination. 
 
 By Mr. Ashbaugh: 
 
 I am sixty-seven years old, now live in the State of Arkansas, and 
 lived in the city of Wichita, Kansas, from the spring of 1879 until 
 the year 1900. I am a civil engineer by profession, taking my de- 
 gree in 1859 at Hanover, Indiana, and followed my profession as 
 civil engineer nearly all of the time when I was living in the 
 
 19 city of Wichita. 1 am well acquainted with the Arkansas 
 river and the location of the city of Wichita. I was city en- 
 gineer of the city of Wichita for five years, and the first sewer sys- 
 tem was put in the city under my direction and some sixty miles of 
 sewer pipe were putin. The plans were made by myself, and we 
 made a topographical survey of the surface of the ground and also 
 of the surface of the water underneath for the purpose of keeping 
 
 our sewers out of the water so as to reduce expenses. 
 
 20 I never saw the old bridge shown in Exhibit A-l. When 
 I came here in the spring of 1879 they were building the 
 
 present iron bridge shown in Exhibit A-2, which bridge was com- 
 pleted in the year 1879. It had eight spans of one hundred feet 
 each. Exhibit A-3 is a photograph of the same bridge, 
 
 21 showing seven spans. The first span was taken out of the 
 west end of the bridge about the year 1888, I presume to ac- 
 commodate some of those people on the west side that wanted some 
 
 more land. I don’t know. The third span was not taken 
 
 22 out before I left Wichita in 1900. The second span had been 
 taken out before I left the city in 1900, and had been taken 
 
 out between the year 1890 and the year 1900. The water as shown 
 in the river in Exhibit A-3 1 would call low. There are six tiers 
 of stone shown in the abutment. The abutment stands probably 
 fourteen to sixteen inches out of the water. The base of the abut- 
 ment — of the stone work — stands up about that much out of the 
 surface of the water and is supported by grillage which rests on 
 wooden piling. The piling shows above the water this 15th day of 
 August, 1904. Piling above the water will decay and must either 
 
268 
 
 THE STATE OF KANSAS VS. 
 
 be cut off, and replaced by material that will not decay or 
 
 23 these piers will cotne down. I should say that the average 
 flow of t lie river during the dry season of the year for the 
 
 first ten years that I knew the river was as much or more than is 
 shown in Exhibit A-3. During the dry season of the year at 
 that time in very dry seasons we could see some of those sand- 
 bars. The average flow of the river for the nine months known 
 as the dry season of the year I should say was perhaps a little 
 above that. Not very much. During the first ten or fifteen years 
 after I came here I never saw the river so low as to show the oiling 
 under the stone abutments. The water as shown in Exhibit A-3 is 
 perhaps as low as it would be shown on the average during that fif- 
 teen years at the lowest. I do not recollect when I saw the grillage 
 first. The grillage is the wood that rests on the top of the piling. 
 I had been told that the stone piers rested upon piling and grillage, 
 and I had taken an interest in looking for that, trying to see it, dur- 
 ing the different low waters, and it was some years before I ever 
 saw any of it. I took an interest in that every time I crossed 
 
 24 that river, to look and see whether I could see the bottom of 
 the stone work, to see whether I could see any of that wood- 
 work appearing. I saw a little of the woodwork underneath the 
 stone piers, perhaps ten years ago. Among the first years I couldn’t 
 see that, although I was really looking for it. Today you can see 
 fourteen to sixteen inches of that wood work. The level of the water 
 when Exhibit A-3 was taken was twenty-four to thirty inches 
 higher. I think that the average flow of the river during the dry 
 season of the year during the last ten years has decreased in com- 
 parison with the average flow of the river during the first ten 
 
 25 years that I knew it. In digging the ditches for our sewers 
 we came across the underflow in a number of places; that is, 
 
 came across the water in the ditches — found the water in the ditches. 
 It interfered somewhat with our work, and was flowing in the gen- 
 eral direction of south or southeast. The water under the city of 
 Wichita has a decided flow southeast and extends all the wav be- 
 tween these river markings — the College hill or the east, perhaps 
 two miles, to the bridge west of the present river — some six miles 
 wide. The flow in all parts of the valley is presumably about the 
 same. At the corner of Topeka and Williams streets, near the 
 opera house, you would strike water in about three or three 
 
 26 and a half feet. It is a low point. The sewers in this city 
 were commenced in 1888. We performed a number of ex- 
 periments by boring a lot of test holes at that time and went down 
 to the damp clay to find the height of the water and by that means 
 constructed the surface lines of the water over the city where our 
 test holes were bored. This was for the purpose of trying to keep 
 our sewers out of the water. My observations extended four or five 
 
 miles up the river. 
 
 The Little Arkansas river empties into the Big Arkansas 
 near Central avenue the fourth street north of Douglas avenue 
 
 27 
 
the statu: OF Colorado et al. 
 
 269 
 
 in the city of Wichita. I think the average flow of the river during 
 the dry season of the year above the mouth of the Little river has de- 
 creased within the last ten or fifteen years in comparison to what it 
 was when I knew it first. I don’t know that the decrease in the flow of 
 the river has any effect upon the underflow except as to its rapidity. 
 I believe it would decrease the rapidity of flow. The decresse in 
 the flow of the river has lowered the surface of the underflow — the 
 upper surface of the underflow. The underflow has lowered in pro- 
 portion to the surface — to the lowering of the surface of the visible 
 river. There is a point there that I would like to make, that 
 
 28 as the surface of the river lowers down the surface of this water 
 underneath would have a tendency to slope toward the visible 
 
 river. If it was a rising river the slope of the under water would 
 have a tendency to be in the other direction from the visible river, 
 the visible river then being the highest. I call it a river under- 
 neath here; that is the reason I speak of the visible river and the 
 river that is underneath. This is a mere theory or belief or judg- 
 ment. If the water is flowing through those sands in the general 
 direction of the river it would be natural to suppose that it would 
 flow towards the surface of the visible river if that were lower than 
 the surface of the water down in the sand ; that flowing through the 
 sands being of less velocity than that in the visible river, naturally 
 it would flow in that direction somewhat and parallel with the 
 river. 
 
 29 Cross-examination. 
 
 By Mr. Hayt : 
 
 I have used the words “ mere theory ” as applied to the slope of 
 the surface of the underflow towards the river whether it was higher 
 or lower than the surface of the river. When the river is high, 
 rapidly rising, I would say there might be a slight flow toward the 
 river markings, — the river banks — if you saw fit to call them so. 
 If the river was falling then the slope might be the other way. At 
 the city of Wichita I think this underflow extends about six miles 
 in width, about two miles on the east side and about four 
 
 30 miles on the west side, and as far north as the sands exist 
 beneath the surface along the valley of the Arkansas. I 
 
 don’t think there is any at Pueblo where we have a rock bot- 
 tom. In my judgment, it commences this side of Pueblo in the 
 State of Colorado, and the water is supplied from the river 
 itself. I base my opinion on the numerous drive wells that have 
 been used in this section of the country. Undoubtedly a portion of 
 this water comes from the general drainage of the country inde- 
 pendently of the river. All this surface that catches water around 
 here drains into this river and goes to supply the river and the river 
 makes all the underflow. The Arkansas river permeates the sands 
 underneath here and makes the underflow. I think the greater por- 
 tion of it comes that way and my judgment is that it comes from the 
 
270 
 
 THE STATE OF KANSAS VS. 
 
 drainage from the mountains. It may be that this water comes 
 
 31 directly through the soil — the seams in the rocks — to supply 
 this underflow without reaching the river, but I don’t think it 
 does. Where the drainage to the river extends fifty or a hun- 
 
 32 dred miles laterally from the channel of the river the underflow 
 may extend as far as those sands extend, continuously, from 
 
 the sands of the Arkansas river. I have made some investigations to 
 determine the velocity of the underflow. We saw that in digging 
 our ditches for the sewers. Little bubbles on the surface or chips 
 would fall in below. In my judgment this underflow has a velocity 
 of one to two feet per minute, or from sixty to one hundred and 
 twenty feet per hour, and of course in twenty-four hours it 
 
 33 would be twenty-four times that amount or possibly twenty- 
 five times — the number of feet per hour. If investigations 
 
 should show that this water was moving at the rate of only nine or 
 ten feet each twenty-four hours, that would not cause me to change 
 my opinion in reference to the velocity of the underflow at this point. 
 My investigation as to the underflow has been confined entirely to 
 the city of Wichita and vicinity. The rapidity of the underflow in 
 the sand may not be so great as where I observed it in the open 
 ditches. It would accumulate from all sides, and the water in the 
 ditches would flow perhaps more rapidly in those ditches than it 
 would in the sand where I couldn’t see it. When I speak of the ve- 
 locity of the underflow I refer to the flow in the ditches after the 
 trenches were dug, as I observed it in those trenches. The fall of 
 the river at this point is about four feet to the mile. By straight- 
 ening our lines we got five and a quarter feet to the mile fall 
 
 34 in our sewer. 
 
 Complainant’s Exhibit A-3 was taken after the year 1888. 
 At the time it was taken one span of the bridge had been removed, 
 and since it was taken two more spans have been removed and the 
 ground filled in ou either side of the river, near the bridge, on 
 the west side so that they have taken out fully that one span that 
 was removed and on the east side the two spans, and the channel of 
 the river has been narrowed up to that extent. I think this would 
 cause the river to scour out and lower the bottom of the river chan- 
 nel. The fact that the bottom of the river has been lowered from 
 twenty-four to thirty inches, caused by the scouring out of the river, 
 might have the effect of lowering the water in the river; but that 
 would not necessarily lower the surface unless it would lower far- 
 ther down. It would simply make a deep hole like the old swim- 
 ming hole and the general level of the surface would be the same. 
 I think if the bed of the river was narrowed up and the banks 
 brought in the tendency would be to scour the bottom of the river 
 out deeper. This would undoubtedly be the general tendency. At 
 the bridge the stream has been narrowed about three hundred feet. 
 
 When I say that the average flow of the river has been less for 
 36 the last ten or fifteen years than before that time, I speak 
 merely with reference to my general recollection and not with 
 
THE STATIC OE COLORADO ET AL. 
 
 271 
 
 37 reference to any particular examination, except my observa- 
 tions, which were of a general character, and these extended 
 
 from 1879 to 1900. I think with these casual observations I can 
 testify with some degree of certainty at this time. A person of ob- 
 servation, as I have generally been throughout my life, would notice 
 things of that kind. If I had known that I would have ever been 
 called upon to testify in reference to the flow of the river I 
 
 38 would have made careful observations, and I would deem 
 such careful observations necessary to give accurate testimony 
 
 in regard to the flow of the river. I didn’t attempt to make such 
 observations. In the year 1888 we had a bench mark — a surveyor’s 
 bench mark — on the top of one of those piers for the purpose of get- 
 ting elevations, and we m-asured from the surface of the water up 
 to the top of one of those piers. I made several measure- 
 
 40 ments at that time from the water up. I never made any 
 measurements to determine the average height of the under- 
 flow — the average water level of the country — except during the 
 years we were making those measurements for the sewers. It was 
 simply one set of measurements from the south to the north. I 
 made the measurements under the foundations of this Federal build- 
 ing in 1888. I found the water level at that time about a foot below 
 the surface of the cellar; it was then dug out. The bottom of that 
 
 cellar is perhaps five feet below the surface of the ground — I 
 
 41 mean the general, the old original surface. It has been 
 filled in around the building some since, and it might be six 
 
 and a half to seven feet below the surface of the ground now. I am 
 only giving a roughs judgment as to that. I would say that the 
 water level in 1888 was about eight and a half feet below the pres- 
 ent surface of the street — possibly less than that. I would say not 
 to exceed five or five and a half feet and about seven feet below the 
 surface of the ground adjacent to the building. I would say 
 
 42 about eight feet, in 1888. 
 
 Cross-examination continued. 
 
 By Mr. Rogers : 
 
 The sewer system extends over an area of five or six square miles, 
 and the system from north to south is about five miles long. 
 
 43 The drainage is to the south or southeast. Commencing at 
 the upper end, we started with a depth below the surface of 
 
 about nine feet and ended with a depth below the surface of four or 
 five feet at the lower end, and the fall is about five and a quarter 
 feet to the mile, and the fall of the country is about the 
 
 44 same — perhaps a little more. There was a difference in the 
 water table at the various points at which I made measurements, 
 
 but I don’t know how much difference. It showed distinctly on the 
 profile maps that there was a decided flow or slope to the water 
 table — a slope from north to south. We didn’t make the test holes 
 from east to west, we took them in a general line of north and south 
 
272 The static of Kansas vs. 
 
 nearly, and I don’t know whether, extending latterly from the river, 
 the water table at any distance from the river is higher or 
 
 45 lower than it is near the surface. 1 didn’t find the direction 
 of the underflow in the test holes ; I simply found the surface 
 
 of the water below the level of the ground. I found the direction 
 of the underflow in the open ditches. 
 
 46 I have made investigations or observations of the river as 
 to the increase or decrease of its flow at points other than the 
 
 Douglas Avenue bridge — at Swan’s island, about four or five miles 
 above, where I made a survey for the Government of an island in 
 the river. This was in 1887 — perhaps in 1886. I was there 
 
 47 for two or three days. You might say that aside from the ob- 
 servations made at the Douglas Avenue bridge the observa- 
 tions at this island are the only observations made by me of the 
 flow of water in the Arkansas river, although I have observed it at 
 other points. 
 
 I have also observed the Little Arkansas river. It does appear 
 to me there has been a decrease in it, but I don’t think there 
 
 48 has been the same decrease in the Little Arkansas river that 
 there has been in the Arkansas. The big stream is sometimes 
 
 dry, as I have observed, but the Little river I never saw dry. I 
 think the volume of water in the Little river has decreased some, 
 but not very materially. I have had no occasion to measure it. I 
 am not positive on that point. I have frequenUy seen years 
 
 49 when the Big river didn’t go dry during the year. I have 
 been up in Colorado as far as Buena Vista, not quite to Lead- 
 
 ville. I have never been at the fountain head of the Arkansas river. 
 I would think that the underflow is formed this side of Pueblo, but 
 that is all I could state in a general way. It sinks into the sands 
 wherever the sands occur underneath the river, and flows with it. 
 
 49 Examination by Mr. A. C. Campbell: 
 
 The underflow I speak of is found on both sides of the river and 
 underneath the bottom of the river. I have found this under- 
 
 50 flow above the level of the bottom of the river, on a level with 
 the river. You might find it above the level of the surface 
 
 of the river when the same is rapidly falling. 
 
 Redirect examination. 
 
 By Mr. Ashbaugh : 
 
 During the years I lived in the city of Wichita I had an oppor- 
 tunity to observe the flow of the river and did observe the flow of 
 the river, and have testified from these general observations. The 
 difference between underflow and sheet water is that sheet water 
 may be standing still and an underflow would be flowing, if I under- 
 stand your question. The ditches that 1 spoke of where the flow 
 was perceptible were ditches that were closed at the lower end — 
 closed as they were built, as we were building up from the low point 
 to the high point. 
 
THE STATE OP COEORAftO ET AT. 
 
 273 
 
 52 John W. Harrison, Colwich, Kansas. 
 
 Direct examination. 
 
 By Mr. Ashbaugh : 
 
 I have lived near Colwich, in the northwest part of Sedgwick 
 county, Kansas, continuously since 1871. I and my boys together 
 own about fifteen hundred acres of land and at the present time 
 have about a mile of Arkansas River front on the south side 
 
 53 of the river. As a fanner and stockman I have been pretty 
 well acquainted with the river for thirty odd years. The 
 
 land near m}^ place, or about a mile and a quarter wide next to the 
 river, we call first bottom, and about ten or fifteen feet above that, 
 back from the river, we call second bottom. In this country there 
 are practically three descriptions of land — first bottom, second 
 
 54 bottom and highlands. About one half of my land is first 
 bottom land. We raise on the first bottoms corn, wheat, po- 
 tatoes, cabbage, fruit, and orchard fruits, and on the second bottoms 
 we raise wheat principally. We don’t raise corn on the second bot- 
 toms because we don’t consider it a certain crop as we don’t get the 
 proper amount of rain to insure a corn crop. I have been acquainted 
 with the Arkansas river for the first fifteen years after I came here 
 and with the flow during the dry season of the year for the last ten 
 years. The average flow of the Arkansas river during the dry sea- 
 son of the year has decreased since the year 1885 to the extent of from 
 two to five feet. Along through the months of June and July the 
 snow used to melt up in the mountains and we got a full flow of 
 water in the river, and we depend on that in the bottoms carrying 
 us over the dry season just when our corn was maturing on the bot- 
 toms. It just came in at the right season to mature our crop and 
 we always looked for plenty of rainfall, when we got the full flow 
 
 of the water, when they had plenty of snow in the mountains, 
 
 55 and we got this sub-irrigation which would rise up all along 
 the road until it was quite moist. When you get up on the 
 
 upland the road is dusty. The sub-irrigation rises and falls with 
 the flow of the river. When the river is comparatively dry we don’t 
 see but very little of the sub-irrigation. We noticed the sub-irri- 
 gation plainly by cultivating, or pulling up weeds. We would see 
 the moist dirt sticking to the weeds when we pulled them up in the 
 corn field and when we are plowing. The sub-irrigation or under- 
 flow has a noticeable current from the northwest to the south- 
 east. I don’t think that my bottom lands along the river 
 
 56 and others similarly situated are as valuable and pro- 
 ductive now as they would have been if the river had re- 
 mained as it was during the first fifteen years that I lived there. 
 They are not as productive as they were during the first fifteen years 
 that I lived there. We are not so certain of a crop as we were, more 
 especially as to corn and potatoes and crops of that kind. The fall 
 of the water in the river has affected the corn crop in two ways — we 
 
 18-7 
 
274 
 
 TtiE STATIC OP KANSAS VS. 
 
 don’t get this sub-irrigation as we did, and we don’t get the amount 
 of rainfall that we did. This sub-irrigation has been reduced and 
 the level of it has gone down from two to five feet, and the fact of 
 its having gone down has affected the productiveness of our 
 
 57 soil. The lowering of the water in the river has been caused 
 by the irrigation ditches in Colorado. Our orchards have 
 
 been affected by this changed condition in the flow of the river in 
 proportion to our corn and potato crops, and this condition extends 
 on both sides of my land, and on both sides of the river. I have 
 travelled over a good part of the country and have noticed it from 
 year to year and have talked with a good many men on this sub- 
 ject. The lowering of the water in the river has also affected the 
 crops on the second bottom by reducing the rainfall by not 
 
 58 having the flood in the river. The river is not as wide be- 
 tween the banks now as it was during the first fifteen years 
 
 I lived here. Just north of my house, on section 35, township 25, 
 range 2 west, within the last twelve years the river has narrowed up 
 627 feet. The river has been narrowed because of the water being 
 abstracted and not getting the natural flow. This is a natural nar- 
 rowing up from start to finish, I think, and has not been filled in by 
 the people along the banks. The river has narrowed up on one side 
 and then on the other side it will narrow up again, which makes a 
 continual narrowing up of the river. This condition exists for sev- 
 eral miles up and down the river. Within the last five years 
 
 59 the river has narrowed up 287 feet by actual measurement. 
 During the first fifteen years that I lived there it didn’t nar- 
 row any that I ever noticed. In regard to the average flow of the 
 river during the dry season during the first fifteen years, there 
 was one year out of that fifteen that they didn’t have any snow 
 in the mountains, as I am told, and the river went almost dr\ T , 
 but the balance of the time I didn’t know what it was to have 
 a corn failure. That was in 1874. We had a nice flow of 
 water you might say almost all of the time, with that excep- 
 tion. By “a nice flow of water” I mean the river ran 
 
 60 on an average from a foot to six feet deep and five or six hun- 
 dred feet wide, and from bank to bank. That was the condition 
 
 for the first fifteen years. I noticed the water began to go down im- 
 mediately after those irrigating ditches were put in there. Why, 
 we began to notice it, and as the irrigating ditches — we would get 
 reports that the irrigating ditches increased, why, our water de- 
 creased. During the last ten years the average flow — the river has 
 been dry — comparatively dry. Of course there would be a little 
 rivulet, perhaps, running along. At sometimes we could step over 
 and sometimes jump over and sometimes we would have to wade, and 
 there would be some running water the bigger part of the season, 
 yet there were times all along when it was comparatively 
 
 61 dry. These places where there was some water during the 
 last ten years would sometimes be from ten to a hundred feet, 
 
 and in the high time up to five hundred feet wide. When the water 
 
THE STATE OF COLORADO ET AL. 
 
 275 
 
 was from ten to fifty feet wide it would run from six inches to two 
 feet deep. This falling off lias, I think, decreased the productive- 
 ness of the soil. I have made complaint to the Government about 
 this. About four years ago they said there was a cloudburst in 
 Colorado and the river came down here bank full and it took that 
 underflow about a day and a half to get out to my open well where I 
 lived, three-quarters of a mile from the river. I could see it bubble 
 up through the ground. The banks of the river were full of water, 
 and in about a day and a half I could begin to notice that un- 
 
 62 derflow worked out three-quarters of a mile from the river in 
 the well and through the low places in the field. It rose 
 
 about five feet higher than it was, and as far as I could tell was just 
 about the same gauge with the river. The underflow certainly does 
 rise and fall with the flow of the river. I have a cellar and you 
 put a light object in the north corner of the cellar and leave it there 
 over night and in the morning it will be in the southeast corner. 
 That shows that there is a current of the underflow going in that 
 direction. The water is in my cellar jufet when the river is high. 
 We call June and July the wet season of the year if they have plenty 
 of snow in the mountains. This water got into my cellar 
 
 63 through the sand underneath and was entirely seepage and 
 didn’t run in from the surface. I keep my cellar banked up 
 
 around to run the surface water off, and it is but very little affected 
 by a local shower. The underflow is but very little affected by a 
 local shower. The underflow is affected by the flow of the river 
 coming down from the mountains, and of course if there are local 
 showers and the river rises it has this same effect. 
 
 Cross-exa m i n ati on . 
 
 By Mr. Dawson : 
 
 I have been engaged in farming at least a part of these lands I now 
 occupy since 1871. I grew wheat upon the first bottom lands from 
 1882 up to the present ; that is, we changed it from corn to wheat 
 and corn to oats, and hogged our corn down ; but prior to 
 
 64 1882 I kept the land mostly in corn and oats, and for the last 
 ten 3'ears in a variety of crops — alfalfa, corn, — it is about five 
 
 feet down to the water on my lands. I don’t know how far the corn 
 extends its roots into the soil. I am satisfied the corn roots 
 
 65 go down a great deal deeper than eight inches. I don’t 
 know how far wheat extends its roots into the soil. They 
 
 claim that alfalfa digs deep into the ground after water. Water 
 doesn’t hurt alfalfa if it don’t overflow it and stand on it. In sink- 
 ing down on my lands I think we have to go from two to five 
 
 66 feet deeper to strike the water level than we used to. We 
 have to go pretty close to ten feet to reach water now. We 
 
 have had more water in the river this year than common. The 
 shortage of water in the river that I have spoken of I first noticed 
 about twelve years ago. I have never been up into Colorado to in- 
 
THE STATE OP KANSAS VS. 
 
 ( 1 % 
 
 vestigate the number and extent of the ditches. I attribute 
 67 the plentiful water in June and July in former years to the 
 snow in the mountains, but I have never myself been on the 
 head waters of the Arkansas river. 1 don’t know whether what has 
 been referred to as the May or June rise in Colorado from melting 
 snows has practically disappeared. I couldn’t tell what effect the 
 cutting off of timber at the head waters of the Arkansas river 
 
 69 has had. The second bottom, like my second bottom, is ten 
 or fifteen feet higher than the first bottom, and on the second 
 
 bottom we have to go down perhaps twenty to twenty-five feet to 
 find water, and the ground rises gradually back from the sec- 
 
 70 ond bottom for perhaps fifteen miles to the southwest from 
 my place. The general drainage is towards the southeast to 
 
 the river. The waters run pretty nearly parallel with and toward 
 the river, and that is about the same direction a chip floats in iny 
 cellar. I have never run a level from the surface of the water in 
 the river to the water shown in any well or excavation at any point 
 to see whether the level of the water in the river or the level of the 
 water in the well was the highest, but I think that they just 
 
 71 correspond. This is my notion, from observation. When you 
 get beyond the second bottom on what we call the highlands, 
 
 say three miles south of my place, the ground water is twenty-five to 
 thirty feet below the surface. We always made calculation that the 
 water ran on a level, and we estimated about how deep we would 
 have to run our wells by the level of the river. When my 
 
 72 well was first dug it was ten feet to water; now the water 
 stands from twelve to fifteen feet deep. That well is about a 
 
 74 mile and a quarter from the river. My land is more valua- 
 ble today than it has ever been in the past, and it would sell 
 
 for more on the market today than it ever would at any time in the 
 past. This is true generally speaking of the lands lying along the 
 Arkansas river in Sedgwick county, and I believe that to be true of 
 lands in the county of Harvey. The complaint I made about the 
 taking of water in Colorado by irrigation ditches to the Government 
 I made about twelve years ago to the Secretary of the Interior. I 
 followed it up with about three letters, and I saw it was getting in 
 too deep water for a private individual and I dropped it. I 
 
 75 didn’t make any complaint of the irrigation ditches in west- 
 ern Kansas. About twelve or fifteen years ago there was con- 
 siderable talk among the residents along the river in my vicinity in 
 reread to large ditches being constructed in Colorado and western 
 Kansas for the purpose of irrigation, and it was my understanding 
 that large operations were being carried on in Colorado at that time 
 looking to the taking out of great quantities of water from the 
 
 river. 
 
 76 I think that the subsiding of this ground water also affects 
 my orchard trees. It has been a gradual reduction. I always 
 
 78 put an orchard on the first bottom if I can get it there. I 
 have hopes that they will make good producers. In the good 
 
THE STATE OE COLORADO ET AL. 
 
 277 
 
 79 old days we had some high water, but the banks of the river 
 always took care of it. The river at that point was quite a 
 
 large stream originally. Without measuring it, I would say it was 
 a thousand feet on an average from bank to bank, and there were 
 times when that thousand feet were covered with water. The bed 
 of the river is composed of lo-se, shifting sand that blows with the 
 wind when it is dry. When the high waters come the bed of the 
 river changed and took it clean out. The flood would apparently 
 carry off this drift sand to quite an extent. Whenever high water 
 would come and subside, the river might be where it was before it 
 came and it might have moved almost over to the other side of the 
 channel, and the next flood it might move back. I don't 
 
 80 think it was the moving of this channel by some flood and 
 the throwing up of the sand in other places that caused the 
 
 narrowing of the river at that point. It is true that when the water 
 is absent for a period of three or four years the river is much more 
 apt to close up because of the fact that little trees get started along 
 the sand banks. What I have said about the bottom lands not be- 
 ing as productive as formerly applies to some extent to the second 
 bottom lands as well, but not as much ; but there has been 
 
 81 some falling off even on the second bottom lands. 
 
 I live on a creek. The creek is about two hundred yards from 
 my house. It is sometimes a pretty good stream and sometimes it 
 is — here in the last twelve years it has been dry the bigger part of 
 the time. When I first came there sometimes it would go dry a few 
 months, in September. It has shown a considerable falling off in 
 water in the last twelve years. I would say that this creek is fifty 
 miles long. I have lived on it since 1871. It sometimes has 
 
 82 freshets or floods, and when it does it comes within two hun- 
 dred yards of my house. When it is full, as a general thing 
 
 the river is full, for the river affects this stream. There may have 
 been a few times when the creek was up and the water was not. It 
 might be affected to a certain degree by local showers. I have never 
 noticed any effect on my cellar when the creek was up at any time 
 when the river was not high. The creek is about on a level with 
 my cellar, but it has a gummy ‘bottom ; it don’t let the water 
 through quite as readily as it goes through the Big river. It 
 
 83 is not as porous. There are tributaries to this creek that run 
 back into the highlands. There is a part of it forms up to- 
 ward the Big river, and the underflow from the Big river forces the 
 water up. There is a big lake up there and that lake is fed by the 
 river. That is one part of the head of this stream. We call this 
 creek the Big slough ; I think on the map it is marked Soldier 
 creek. This lake we used to call Pope’s lake, but there is another 
 
 man who owns it now. I have never made any excavations 
 
 84 to find whetherthe water is proceeding from the river to the lake 
 or from the lake to the river. I think the lake has no tribu- 
 taries or sloughs or creeks running into it. The productiveness of 
 this land for corn has fallen off for the last twelve years, but I can’t 
 
278 
 
 THE STATE OF KANSAS VS. 
 
 give the production per acre of corn. I know that 1874 was a bad year. 
 I think that year I raised about a bushel to the acre. 1 
 
 86 have no figures to show whether in the past twelve years I 
 have produced as much corn per acre as I did in the 
 
 twelve years before, but I know from the husking and the bushels 
 of corn, hauling it in and shelling it and delivering it, that our 
 yield is not as great as it was. I have never kept a record of 
 
 87 the production per acre. Some years it rains just in time 
 to make a good crop, even if we don’t have any river here 
 
 at all. Once in a while that has happened. But we are not certain 
 of those rains. The facts in the matter are that we used to depend 
 upon the rain up here — when we had a good flow of water in the 
 river we could depend upon getting a shower, but at the present 
 time it goes off to the north and leaves us fellows to hold the sack. 
 I certainly think that the flow of water in the river has something 
 to do with the rains that fall on the lands. To a certain extent the 
 rainfall has decreased as the flow in the river has decreased. We 
 claim a damage from both the loss of the rainfall and the loss of 
 the water in the river. I don’t think that the greatest injury has 
 been because of the lack of rainfall. We depend more on 
 
 88 corn on the first bottom, and wheat on the second bottom. 
 Tiie wheat on the second bottom does not depend upon 
 
 89 what I call the underflow or ground water. So the only 
 way the wheat has been injured has been by the diminution in 
 
 the rainfall, and that I think has been for the last twelve years. 
 I have not consulted the weather bureau here to find out whether 
 as a matter of fact the rainfall has been less. We think we have 
 good luck if we get two good crops — wheat and corn both — but 
 sometimes we get a good crop of one and not of the other. Wheat, 
 I believe, if there is any difference, gets along with the least 
 
 90 rain. I have been interested in this suit and have talked 
 with different individuals about it. I didn’t use my in- 
 fluence to bring about the commencement of the proceedings in 
 the way of securing legislative appropriations or anything of that 
 kind. The only interest I had was the general welfare of the peo- 
 ple up and down the river. I ‘have no personal knowledge of 
 the conditions in Colorado, and I don’t know anything about 
 seepage or return waters, and have never been interested in irrigation 
 
 projects in the western part of this State. Once in a while we 
 
 91 would catch a man travelling through here and we would 
 gather what little news we could from our newspapers, etc.,. 
 
 aboutirrigation,and that is all I knowabout the workings in Colorado. 
 I have been a reader of the Wichita Eagle for a great number of years, 
 and to some extent have followed its discussions and writings upon 
 the subject of water. I have actually only taken the Eagle about 
 
 92 twelve months. In 1874 the river was practically dry at my 
 place. I have never seen it as dry at any time since. It 
 
 came pretty close to it several times, but I can’t give you the dates. 
 I don’t think there has been a more regular or steaiy flow in the 
 
TH 1C STATE OF COLORADO ET AL. 
 
 279 
 
 river of a smaller amount of water, say later in the season — 
 August — September and October — than there formerly was. There 
 have been times when the river went down very low, but I can’t 
 recall the exact dates. It takes a very heavy rain to affect 
 93 this river. You might have quite a heavy rain west of here 
 and not affect the river but very little. It does not take an 
 immense amount of water to affect the flow of this river here. 
 
 Recross-examination. 
 
 By Mr. Ashbaugh : 
 
 95 The year 1874 was the grasshopper year, and there was a 
 practical failure of crops all through the country that year. 
 
 The value of lands throughout this whole country has increased in 
 spite of the taking of the water from the river and not because of it. 
 The advance in the value of lands in Sedgwick county is supposed 
 to be the cause of the scarcity of lands, the general prosperity of the 
 Government, the building up of the State, the introduction of rail- 
 roads and the general development of the country. The 
 
 96 taking of this water has been detrimental to the farmers along 
 the river regardless of the general crops throughout the 
 
 97 country in general. The certainty of our crops on the bottom 
 lands depended upon the presence of this underflow. 
 
 98 Recross-examination. 
 
 By Mr. Miller : 
 
 I base the results of 1874 upon a lack of the underflow of the water 
 and not upon a scarcity of rain. In some particulars I have a clear 
 remembrance of the rain — 1874 and in that year there was scarcely 
 any rainfall. It was not so dry that we couldn’t plow. We plowed, 
 and raised a crop of grasshoppers. 
 
 Henry Jurgensen, Mount Hope, Kansas. 
 
 100 Direct examination. 
 
 By Mr. Ashbaugh : 
 
 I have been a farmer and lived near Mount Hope from 1878 to 
 1900 and at Mount Hope since 1900. I have been acquainted with 
 the flow of the Arkansas river and the lands along the river since 
 1878. The flow of the Arkansas river, on an average, during the 
 dry season of the year, during the last ten years, has been three or 
 four feet lower than it was during the same season of the 
 
 101 year for the first ten years that I knew it. It has been lots 
 lower than it used to be. It has been dry several times, with 
 
 no water in it at all. I believe the first time I ever saw the river 
 dry was in 1887 or 1888. During the first ten years there were 
 
280 
 
 THE STATE OF KANSAS VS. 
 
 holes there where there was ten feet of water, and now I wouldn’t 
 say that there was more than four feet. It was mostly from bank 
 to bank. The banks are not more than half as wide as they were 
 then. The banks have narrowed because there was no water, 
 
 102 and from a natural cause. The bed of the river has filled up 
 some and is now filled with sand and lots of trees. They 
 
 generally say that the decreased flow has been because they take 
 the water out of the river in Colorado. The loss of water has not 
 affected the wheat crop very much, but it has affected the corn crop 
 in dry years. The wheat crop don’t depend on the underflow, but 
 the corn crop does in a dry season. It affects every crop that de- 
 pends on the underflow. The underflow, of course, has gone 
 
 103 down and has gone down proportionately with the river 
 itself. Our bottom lands have become less productive because 
 
 of the decreased amount of the underflow in a dry year. In a wet 
 year it doesn’t affect it at all, but in a dry year it does, because the 
 first years we raised corn it made no difference whether we got rain 
 or not, we raised corn ; but since the underflow went down we don’t 
 raise any corn in the dry years. 
 
 I bought section 17, 25-3, from the railroad company in 1878. I 
 owned section 8 , 25-3, which was a homestead entered in 1871. The 
 bottom lands in Sedgwick county were generally taken up and set- 
 tled as homestead lands in 1871 and the railroad lands were 
 
 104 purchased and settled from 1878 to 1882. 
 
 Cross-examination. 
 
 By Mr. Rogers : 
 
 I came here from Illinois in 1878. 1879 was a dry 3 'ear and we 
 
 didn’t have much of a wheat crop. I had corn on the bot- 
 
 105 tom lands and it was good. I 11 1880 the wheat wasn’t very 
 good but the corn was good. I am now speaking of the 
 
 second bottom, because I didn’t farm the first bottom before 1890. 
 The first bottom is about half a mile wide at mv place. The second 
 bottom, I should judge, is about 16 feet above the bottom of the 
 river. When I speak of the wheat and corn in 1879 I am referring 
 to both crops 011 this second bottom land. I didn’t own the first 
 bottom until about 1890. We are more sure of a corn crop 
 
 106 on the first bottom than on the upland. The corn crop in 
 1881 was pretty fair. It was good up to 1887 ; that was the 
 
 first failure. In 1882, 1884, 1885, and 1886 there was a good corn 
 crop on the first and second bottoms. In 1887 it was dry in 
 
 107 August and ruined the crop on the upland. 1887 and 1888 
 were about the same — both years pretty dry — aud the corn 
 
 crop was ruined. 1889 was an extremely good year, the best corn 
 crop we ever had. We had plenty of rain right along. I am not posi- 
 tive about 1890; I don’t believe we had a very good crop. It was 
 dry in August. I can’t say about t lie crops in 1891. In 1892 we 
 
THE STATE OF COLORADO ET AL. 
 
 281 
 
 had a good wheat crop, but I don’t know about the corn crop. 
 
 108 1893 was a bad year for both wheat and corn. 1894 wasn’t 
 a very good year. We didn’t have very good crops on either 
 
 the bottom or uplands that year. 1895 was an extremely good corn 
 year on both first and second bottoms. The wheat was pretty fair. 
 I expect the rainfall must have been good, else we would not have 
 had any crop. 1 don’t think we had much of a crop in 1896. 
 
 109 I don’t remember whether it was a dry year or not. We had 
 some crops in 1897. The corn was good on the bottom but 
 
 the upland was poor. 1898 was a middling year, I expect. I can’t 
 remember positively about 1898 or 1899. In 1900 — well, I don’t 
 know. We had one poor year in corn. I don’t know whether 
 
 110 it was 1900 or 1901. I believe it was 1901 we had very poor 
 
 corn. In 1902 the corn wasn’t very good. The bottom was 
 
 pretty good. On the upland it was chaffy — it didn’t fill out well. 
 As to the rain, if the corn ain’t good the rain must have been short. 
 Whenever the corn isn’t good the rain is short. They kind of run 
 together. It does, but didn’t use it. In 1903 the upland corn wasn’t 
 much. The bottom was pretty fair. Through June and July in 
 1903 it was very dry, but about the first of August we got 
 
 111 rain that made some corn. We call a corn crop here 40 or 
 
 50 bushels to the acre. From 1879 to 1885 or 1886 we gen- 
 erally got about 40 or 50 bushels of corn to the acre; after that we 
 had only a few years where we got that much. In 1889 and 1895 
 we had over sixty bushels to the acre on the bottom land. Since 
 1895 I should say it would be twenty-five to forty bushels per acre. 
 
 Several times it fell below twenty-five bushels. 
 
 112 The full width of the river as I found it when I came here 
 was never utilized except in flood times; the ordinary flow 
 
 took up the width of the river from bank to bank pretty nearly all 
 the time. It overflowed once or twice but not much. It generally 
 stayed inside of the banks, even when the floods came. It 
 
 113 generally used to fill the banks every June; nowit some- 
 times does and sometimes doesn’t. The flood water comes 
 down as often as it used to, but it doesn’t stay as long. I have 
 
 114 done nothing down at my place to find out the depth of 
 water under the first bottom. On the second bottom I have 
 
 dug several wells. The first well Iliad to dig down 16 feet; that 
 was in the winter of 1879. We used it for five or six years and then 
 it went dry. Then we made a drive-well about a mile from the 
 river and a quarter of a mile from the first bottom. We had to go 
 about twenty feet for water. This second well was about 
 
 115 quarter of a mile farther inland from the first well. It was 
 on higher ground. I sank this last well in 1880. It is dry 
 
 now. It went dry in them dry years, about 1886 or 1887. After 
 
 that we drove a well pipe deeper down, about twenty-two feet. This 
 was where the first well was. We were sixteen feet first 
 
 116 and we had to go down twenty-two feet to get water. The 
 second well was sunk in the spring of 1880. From 1879 to 
 
282 
 
 THE STATE OF KANSAS VS. 
 
 1886, ill order to get water we had to go down six feet deeper. The 
 last well has never given out; it is there 3 T et today and it has not 
 dropped from 1886 to the present time. 
 
 Redirect examination. 
 
 117 By Mr. Ashbaugh : 
 
 During these years I should say the water level has gone down 
 from three to four feet. During the early years we could grow a 
 crop of corn on bottom lands regardless of whether there was rain 
 or not; but in the later years we can grow a corn crop if we have 
 plenty of rain. 
 
 W. 0. Huss, Mount Hope, Kansas. 
 
 Direct examination. 
 
 By Mr. Ashbaugh : 
 
 118 t have lived three miles east of Mount Hope since 1871. I 
 own a piece of first bottom land am engaged in farming and 
 
 stock raising. The first bottom land near Mount Hope is not quite a 
 mile and a half wide on the south side of the river and about 
 
 119 three-quarters of a mile wide on the north side. My land runs 
 within four rods of the river. I see the river pretty nearl}' 
 
 every day. I don’t think there is anything near the flow in the river 
 during the dry season of the year for the last ten years that we used 
 to have before that time. I think the general flow is from two to 
 four feet lower than it used to be. The river is filled up a good deal 
 on both sides in some places. In some places the bank is changed 
 on both sides and in some places only on one side. I don’t think 
 there is any more than half as much clear river bed as there 
 
 120 used to be. I think the river bed has narrowed because we 
 don’t get as good a volume of water as we used to to keep it 
 
 cleaned up. We don’t get it through June, July and August, as a 
 general thing, like we used to. I don’t know but we get pretty near 
 as much water now in September, October, November and 
 
 121 December as we did then. I don’t think there is any- 
 where near as much water at the average flow of the river 
 
 during the dry season as there was during the first ten years 
 that I knew it, because I kuow that the water has gone down 
 in our ground where we dig. Right at my house it is now six 
 or eight feet to water, and when I first came there I dug a hole 
 in the ground and put a barrel in it, and it raised and fell as 
 the river raised and fell. Sometimes that barrel would be up almost 
 full ; sometimes I would have to get down in there and dig out to 
 get any water when it would be dry. It is a fact that the 
 water level throughout the year rises and falls with the flow of the 
 river. 
 
 Q. How much, then, has the water level in the first bottom lands 
 
THE STATE OF COLORADO FT AL. 
 
 283 
 
 fallen during the last ten years as compared with the condition 
 during the first ten years? 
 
 A. Well, I will say now — it is a dry season — it is about eight feet 
 to water, and it would be, as I say, sometimes — I don’t know, the last 
 four or five or six years, until I got a pump — of course I have got a 
 pump now. I don’t watch the water the way I did when I had an 
 open well ; but it never got so that I could get water out of 
 
 122 my barrel. 
 
 It was just a common barrel, not over three and a half feet 
 high. I think the fall of the water level in the bottom lands affects 
 the different crops raised on those lands in different ways. It affects 
 corn more than any other crop, because if we don’t get rain it feeds 
 that corn and keeps it growing if it goes dry. During the first ten 
 years we got corn on the bottom lands without any trouble ; lots of it ; 
 it didn’t appear to depend on the rainfall at all. It got its moisture 
 from below. That is what we always claimed. During the last ten 
 years we haven’t as good corn crops on the bottom lands as 
 
 123 we used to have. We don’t have as good corn as if we had 
 plenty of rain, but we get some corn when they won’t get it 
 
 outside of the bottom. We get half a crop and maybe more. It 
 affects potatoes and vegetables on the bottom lands in the same way 
 as it affects corn. During the early years we could raise crops on 
 the bottom lands from the supply of water under the ground ; now 
 we have to depend more on the rain. The river banks have been 
 narrowing for the last ten or twelve years, but I never noticed any 
 narrowing the first ten years. The diminishing of the underflow 
 and the flow of the river has been going on gradually for the 
 
 124 last twelve or thirteen years. The river bed is filled up in 
 places with sand, and there is grass and trees growing on it. 
 Thereare trees there now where they were not twenty years ago. 
 
 125 The islands are becoming larger and more of them. The 
 crop of corn, potatoes and vegetables don’t equal what it 
 
 used to be, nor begin to, and it isn’t as certain as it used to be. 
 
 Cross-examination. 
 
 By Mr. Rogers : 
 
 Q. The uncertainty you spoke of in answer to counsel has 
 
 126 no reference to the underflow, but to the contingency that 
 even after the crop has been made on the land you may not 
 
 be able to harvest it ? 
 
 A. Yes sir. 
 
 127 We used to have hot winds in this country, and that is 
 another element of uncertainty, and there are other elements 
 
 of uncertainty. This year we couldn’t make a corn crop because it 
 was too wet. The barrel I put in to get water was a little bit over 
 half a mile from the bank of the river. I think the place 
 130 was higher than the bank of the stream. There is a slough 
 there ; it runs into the country back of the river and collects 
 
284 
 
 THE STATE OF KANSAS VS. 
 
 the drainage water back southwest. There is only water in it when 
 it rains. It was filled with water this spring. It wasn’t from this 
 last freshet or flood. Ever since 1 first knew it it has been without 
 water only when there came rain, and then it would fill up when- 
 ever there was a big rain. [ guess we have such a rain about 
 131 every year. We don’t have high water in the river every 
 year. We get some rises that come down every year. We 
 don’t have enough to fill the river up to the top of its banks or 
 practically to the top. I think it has only been filled three times 
 in the last ten years. The flood periods in the river come 
 133 earlier and and the volume is less than formerly. 
 
 Redirect examination. 
 
 By Mr. Ashbaugh : 
 
 During the early years we figured that we had what we called 
 sub-irrigation, and if it didn’t rain we could stand the drought. I 
 didn’t mean to say in answer to counsel that we were never certain 
 of a crop. The reason the corn crops are uncertain now is that 
 the underflow has gone and it depends almost entirely on the 
 rains. 
 
 135 C. E. Tupper, Mount Hope, Kansas. 
 
 Direct examination. 
 
 By Mr. Ashbaugh : 
 
 I now live at Mount Hope, Kansas, and have lived five miles east 
 and one mile south of there since 1880, and a mile south and a mile 
 east since 1871. I have owned and cultivated first bottom lands 
 along the Arkansas river since 1871 but no second bottom lands. 
 The average flow of the river during the dry season has been con- 
 siderably less for the last ten years than it was during the same sea- 
 son of the year for the first ten years that I knew it. It is 
 
 136 not nearly as wide as it used to be. i\.bout half, I should 
 think. It has filled up a good deal. The banks have filled 
 
 in by the river being dry and the sand blowing in and trees and 
 grass growing where the river ran the most when I came to the 
 country. It has filled up every year and the islands are 
 
 137 getting larger and more permanent. The underflow is not 
 as near the surface as it was thirty years ago, and to the best 
 
 of my knowledge it has gone down proportionately with the level 
 of the flow of the river. This has affected the crops on the bottom 
 lands quite considerably — corn mostly; other crops not as much as 
 the corn crop. It has not affected other crops to any great extent, 
 because the corn crop is all there is raised on the bottoms. That is 
 the principal crop. It has affected the corn crop because we don’t 
 have the water near enough the top of the ground when the dry 
 
titlTs^ATE OF COLORADO El? AL. 
 
 285 
 
 spells come. The river is low. When the river raised the water 
 raised underground. If we had more water we would have the corn. 
 We had better corn during the first ten or fifteen years after 1871 
 because we had more water in the river and had more dew, and the 
 atmosphere wasn’t so dry. The corn crop was more certain 
 
 138 then than now, because we had more water. Now, the corn crop 
 depends more upon the rainfall than it did then when it was 
 
 dependent upon the underflow. In the earty times, in the seventies, 
 I had an open well which was about eight or nine feet deep and the 
 water in that well would rise and fall with the water in the 
 
 139 river. When we had an open well we could tell how the river 
 raised by the water rising in the well. The bottom lands 
 
 haven’t been as productive as they were during the fifteen years from 
 1871 to 1886. So far as the productiveness is concerned, I don’t 
 think the lands are as valuable as they were. During the early 
 years we never had an entire failure ; the worst failure we ever had 
 was in 1874, which was the grasshopper year. 
 
 Cross-examination. 
 
 By Mr. Rogers : 
 
 140 Mount Hope is two miles from the river. It is on the sec- 
 ond bottom. I moved on the second bottom last November; 
 
 before that time I lived on the first bottom. On the first bott-ins my 
 house was about three quarters of a mile from the river. I 
 
 141 put in a corn crop every year. I felt as sure of getting a crop 
 of that as anything else ; they are all liable to failure. 1 guess 
 
 my average corn crop for the last twelve or fifteen years has been 
 about thirty-five bushels to the acre on the average. The market 
 value of the land is probably more now than formerly. It. 
 
 142 isn’t any less anyhow. 1 put my first well down in 1871 
 and abandoned it in 1876, I think, when I put a drive-well 
 
 down. I could get better water. I don’t know how deep it was to 
 water at the time I put the drive-well down. I couldn’t see the 
 water. The first well I dug down I know how deep that went, 
 
 143 I sunk it about ten feet and found water at about eight feet. 
 After I moved to the other place I put one down on that 
 
 place — one on each place. This was about 1880. In one well 
 I found water at about seven feet, I think. It was about a 
 mile from my first well of water and three-quarters of a mile 
 from the river. I pulled it up and moved it to another place 
 and drove it down again. This was about 1890, I guess, and 
 I found water at about the same depth, right along there together. 
 1 drove the wells down. I couldn’t say 7 that the water level 
 
 144 was any lower at that time, for I paid no attention to it. The 
 water level often rises and falls, but I don’t know how much. 
 
 I know it rises and falls because I see it in the well, during the first 
 few years, but the later years I didn’t pay much attention, because 
 the river has been so low. I don’t know whether the water level 
 
28$ St ATE 6P KANSAS VS. 
 
 under the first bottom along the Arkansas river in the section where 
 I live has fallen below its level of a few years ago. I do 
 145 know it is up and down. I couldn’t give a correct idea of it, 
 because sometimes it is up pretty near the top of the ground 
 and sometimes it is lower. It goes up and down with the river. 
 
 Redirect examination. 
 
 By Mr. Ashbaugh : 
 
 It is my opinion that the water level has gone down in the bottom 
 lands. Swearing to it is something else. There is no water there 
 in the dry season. The river goes dry and makes everything dry. 
 In the drv season the water is certainly lower. 
 
 Ransom H. Brown, Witchita, Kansas. 
 
 Direct examination. 
 
 By Mr. Ashbaugh : 
 
 148 I have lived in Wichita since March, 1887, and am a civil 
 engineer and surveyor. I have been surveyor of Sedgwick 
 
 county for ten years, from 1891 to 1902. As surveyor I have had 
 in my possession and am familiar with the records of the county 
 furnished by the Government of the United States, and the field 
 notes, certified to by the surveyor general for the State of 
 
 149 Kansas. From these records and notes I know that the Ar- 
 kansas river through Sedgwick county is meandered on both 
 
 sides of the river. I know that similar records are furnished and 
 found in the Cowley, Sumner and Reno counties, and that 
 
 150 the Arkansas river through these four counties is a mean- 
 dered stream on both banks of the river. It is a meandered 
 
 stream according to the survey of the Government made for navi- 
 gable rivers. 
 
 Motion to strike out as incompetent, irrelevant and immaterial. 
 
 151 H. H. Hansen, Wichita, Kansas. 
 
 Direct examination. 
 
 By Attorney General Coleman : 
 
 152 I live near Bentley, Sedgwick county, 24 miles from Wichita. 
 I settled in the Arkansas valley in 1870 and have been fa- 
 miliar with the Arkansas river since that time between Wichita and 
 Hutchinson. I occupied at first 160 acres of land on the first bot- 
 tom. The first bottom lands at the point where I live, on both sides 
 of the river, are about twenty-four miles wide. 
 
 The first bottom lands between Wichita and Hutchinson, on an 
 average are about 17 or IS miles wide. When I came to the county 
 
I'fiE Si 1 ATE 6F COLORADO ET At. 
 
 in 1870 I should judge the river was about ten or twelve 
 
 153 hundred feet wide in the ordinary seasons of the year, and the 
 water generally covered the channel all over from bank to 
 
 bank. The depth would depend upon the season. At that season 
 it would be from three to five feet in depth. With the exception of 
 1874, I should judge the depth at the dry season of the year would 
 be considered about from six to eight inches. Within the last twelve 
 or fifteen years the channel of the river I should judge to be about 
 one half its former width. This narrowing has been taking place 
 gradually in the last twelve or thirteen years. When the river is 
 most of the time dry weeds and grass and trees will start and the 
 sediment of the river will accumulate and fills it up. 
 
 154 During the last twelve or fifteen years during the dry sea- 
 son we haven’t got any river. Some of the time it ceases 
 
 flowing altogether ; if it does not it flows in a narrow channel. I 
 have been speaking of that portion of the river above the mouth of 
 the Little Arkansas which empties in at Wichita. 
 
 155 In the year 1874 the stream dried up partially. There 
 were some water holes in it. At those places where I am 
 
 acquainted with the river the ordinary flow was from three to five 
 feet deep. This would be the ordinary flow in April, May, June and 
 a part of July ; after that the water gradually began to go down and 
 the depth got less, and ordinarily in September, October and No- 
 vember we had about six or eight inches of water across the whole 
 width of the channel, excepting some islands of course. 
 
 156 Q. Now, when you first went into that country what, if 
 anything, did you discover in regard to an underflow of water 
 
 under the surface of the land ? 
 
 A. Well, I have on several occasions, that I am satisfied that 
 there is an underflow. 
 
 In 1870 I dug a well and I always found that the sand would 
 bank up in the northwest corner of that well ; that is, the sand 
 would drift up. That indicated to me that the water came over 
 there and pushed the quicksand up. I had to dig three or four feet, 
 and I had plenty of water and that place where I dug the well was 
 on a little rise and I had to go about eight feet, but in general we 
 had to go three or four feet, in the lower part of that land. . I noticed 
 at that time a difference in the level of the water in these excava- 
 tions. The variation of the current is from three to five feet, and 
 we always went by the river. We didn’t need to go to the river to 
 see how high it was, we could always look in our holes and see just 
 when the river was falling or rising. The water rose and fell just 
 according to the river. 
 
 157 I can’t state how long it took after the channel filled up be- 
 fore the water in the well rose correspondingly. This well 
 
 was about three and a half miles from the river. The current of 
 the water in the bottom of the well was parallel with the river. I 
 have noticed it in some other cases. In 1893 I built a house in 
 Harvey county and dug a hole to dig out plastering sand, about six 
 
Mg 
 
 Ttttf STATIC 01? KANSAS VS* 
 
 feet square, and then we got sand and water. When we would 
 throw out sand we found we had the sand banked up on the west 
 and northwest side of that well a couple of inches higher than the 
 rest of it. The quicksand had drifted in from the northwest and 
 drifted toward the southeast. It was always in the same direc- 
 tion. 
 
 158 Within the last twelve or fifteen years at the first place 
 that I talked of I noticed a difference in the depth it is neces- 
 sary to go to reach the underflow. It showed itself gradually. It 
 appears that we have to go from three to four feet deeper to strike 
 water than we did in the seventies. I own that land yet and we are 
 digging holes once in a while, and I know what I am talking about. 
 
 In that part of the county on the first bottoms we raised corn. It 
 was just sure for a corn crop whenever we put it in. We could 
 raise corn whether it rained or not. Whether there was a 
 
 159 failure in the country at large or not, we had never known of 
 a failure but 1874, and of coarse our underflow was too deep; 
 
 everything was dried up. It is a fact that when there was a failure 
 on the upland we raised corn on the first bottoms, except in 1874, 
 and we put it to the underflow, that our land would hold the water. 
 Within the last twelve or fifteen years, if we get plenty of rain we 
 can raise crops yet on the first bottoms, and if we don’t we 
 
 160 sometimes come mighty near falling. Within the last twelve 
 or fifteen years, whether we raise a crop or not depends on 
 
 whether we get plenty of rain in the right season. In the early 
 da} r s it didn’t make any odds if we didn’t have any rain for sixty 
 days, we could, on land in general, with the exception of some spots 
 that underlaid that hard ground — we could always go in the morn- 
 ing and we found the whole soil black — damp, and right at mid- 
 day when the sun scorched it up and it was hot, we merely needed 
 to scratch down with our finger only one eighth of an inch and we 
 would enter moist ground. Of course the subsoil of our land is a 
 kind of sandy loam and will hold water like a sponge and draw it 
 up from below. Within the last ten or twelve years we have lost 
 all that. It is dry. 
 
 161 A year ago last spring I dug a cellar at Bentley. We dug 
 down to quicksand and walled it up. It happened to be a 
 
 pretty wet spring and we got water in that cellar, and when the 
 water got out we found that on the northwest corner there was a 
 mark of sand about four feet square, six inches higher than the rest 
 of the bottom of the cellar, which showed that the sand had washed 
 under the wall and raised up in the cellar. It is mv judgment that 
 this effect of the underflow as described extends throughout this 
 whole bottom, but my experience does not extend that far. I could 
 not trace the underflow any further than up to the Little river, 
 which would be somewhere around eighteen miles. This changed 
 condition which we have found in the last ten or fifteen years has 
 extended over the whole bottom. 
 
THE STATE OF COLORADO ET AL 
 
 289 
 
 162 According to my observations the productiveness, by rea- 
 son of the subsidence of the underflow, has decreased not less 
 
 than thirty-five per cent., and that condition extends all over the 
 bottom so far as I know it. 
 
 Cross-examination. 
 
 By Mr. Hayt: 
 
 163 I first located in this county about thirty miles above 
 Wichita and took up one hundred and sixty acres of land. 
 
 We didn’t have any trees at that time with the exception of cotton 
 woods here and there on the river. There were no trees except near 
 the river. There were grasses of all varieties growing on this land, 
 mostly buffalo grass, a pretty good stand at that time, and that was 
 the general condition of the bottom lands between Wichita and my 
 place. I cannot exactly tell about the first bottoms, but I know that 
 the fellows from the second bottom came down and cut their hay on 
 the first bottom. I couldn’t say how much higher my land lay 
 than the river channel ; I never levelled it off, but when we dug a 
 hole our water and the river water were always considered to 
 
 164 be on a level. 
 
 I can’t tell anything about the level of my land. I don’t 
 know whether it was higher than the river bottom or lower. I didn’t 
 cultivate my land in 1870. In 1871 I raised about fifty acres of 
 corn, a good crop, about thirty-eight bushels of sod corn to the acre. 
 I have raised corn every year since. I can’t say how deep the corn 
 roots go. They go deeper in a dry season than in a wet sea- 
 
 165 son. A corn root goes down at any rate from 14 to 15 inches. 
 Didn’t raise anything else than corn in 1871. In 1872 I had 
 
 corn and oats, about sixty acres in corn and three acres in oats. The 
 corn yielded about 38 bushels to the acre. In 1873 we raised good 
 corn crops. In 1874 we had a failure in corn. We had a few 
 
 166 acres of wheat that were good, and I had ten acres of oats 
 that were good. The river was entirely dry during a por- 
 tion of the season of 1874 in the fall of the year. I think the con- 
 dition was about the same between Wichita and Hutchinson, all 
 over, at that time. So far as I travelled up and down the river it 
 was dry. We had plenty of rainfall in the early part of the sea- 
 son, and then we had rainfall through May, and then it turned dry. 
 The drought commenced in June and lasted somewhere about ninety 
 
 days. 
 
 167 Since I have been in Kansas corn has been my principal 
 crop. My crops have continued about the same until about 
 
 168 1890. Of course I have some land that I don’t claim to be 
 affected with sub-irrigation; that is what is underlaid; but 
 
 what I am talking of is the general land that is affected b} 7 sub-ir- 
 rigation. About ten per cent, of mv land is underlaid with hard- 
 pan and on those lands the crop depends entirely upon the rainfall. 
 I have noticed that our crops have gradually decreased for twelve 
 19—7 
 
290 
 
 THE STATE OF KANSAS VS. 
 
 or thirteen years and we were more subject to drying out than we 
 were in the first years. This year, 1904, we have no crop at all, be- 
 cause it has all been drowned out. We had too much water 
 
 169 this year. In 1903 we had all the water we needed, that is, 
 in some parts of the year. We had in the first part of the 
 
 season much water, and then it turned dry and what little corn there 
 was was dried out. We had a fair crop in 1902. I have planted 
 part of this same land to corn from 1870 up to the present time. I 
 have never fertilized it, not any more than the vegetation 
 
 170 that grows on it. I always plough in what is on the ground. 
 My place is about eight miles from the Little Arkansas river. 
 
 We have got a creek there we call the Kissaway. It is about two 
 miles away. Part of my property is within a mile and a half and 
 part of it two or three miles. I have noticed no change in the vol- 
 ume of water in that creek in the last thirty or thirty five years. It 
 runs a little more now if anything. It is not a constantly running 
 stream. It goes dry every season. It is generally dry all the sea- 
 sons through with the exception of April, May, June and 
 
 171 July. It is a dry creek. One day it may be away up and 
 to-morrow down. 
 
 The water in the Little Arkansas river depends on local rains. 
 Some times it is away up yonder, and sometimes — it is a 
 
 172 stream that never goes dry. It is flowing as much water 
 now, if not more, than it did in 1870. According to our sur- 
 face water, the Little Arkansas river is lower than the Big Arkansas 
 
 river. It flows into the Arkansas river. 
 
 173 In that well that I have spoken of I had to go about seven 
 or eight feet to water. I struck the wet sand at about six 
 
 feet; it was full of water; the water was percolating through it, but 
 not in every direction. The water came always from the north- 
 west; that is where we noticed it first, always going from the north- 
 west to the southeast. As we dug down the water didn’t 
 
 174 come in from all sides. What I mean is, I could see where the 
 water came in first. I could see where the most of it came 
 
 in. I noticed that the hole got full of water. I don’t know that if 
 you dig down in wet sand the water comes in from all directions 
 to the same extent. If you go deep enough, I admit that the water 
 must come in from all sides, but when you get just to the water I 
 say it does not. The depth of the hard pan from the suface 
 
 175 varies. It is found in some places right near the top. In 
 one place I dug down sixteen feet, and when we got down to 
 
 that depth the water burst up that remaining two feet of hardpan. 
 We found the hardpan right there on top. There was eighteen feet 
 of solid hardpan where nothing could get through. That must have 
 been about fourteen years ago. I couldn’t say how long the water 
 remained at that level, because I put a curbing in there to 
 
 176 make an irrigation plant. It was a hard spot where I could 
 build a reservoir that would hold the water. When 1 put in 
 
 a curbing I sank down a four-inch pipe and then I put a mill to it 
 
THE STATE OF COLORADO ET AL. 
 
 291 
 
 and built a reservoir and a pump, a big pump, and then we filled 
 up the hole. I can’t tell whether the water remained at that height, 
 eight feet from the surface, or whether it receded. 
 
 179 When I first came the channel of the river or the river 
 bed was from one thousand to twelve hundred feet in width, 
 
 and in the dry season, what we would call the lowest water, the 
 water would be from six to eight inches in the channel. When the 
 channel was only six or eight inches in depth the water would not 
 flow the whole width of the channel because there was always sand 
 bars and islands in the river. The stream at any rate was two-thirds 
 of the width that it was when the bed was full. This cellar that I 
 dug at Bentley was about two and a half miles from the river, and 
 the first well that 1 dug was about three and a half miles from the 
 river, and the well where I put the reservoir was about four 
 
 180 and a half miles from the river. I dug that cellar last spring 
 a year ago. That is two and a half miles from the river. I 
 
 dug it four feet deep. When we got down four feet we got onto the 
 sand and knew we couldn’t go any deeper and we just built up a wall 
 right on the sand. We walled it up six feet high and put a build- 
 ing over it. After we had that cellar dug the water came in. 
 
 181 That was in June, 1903. I think the water got about three 
 feet deep in the cellar. The cellar was four feet deep and 
 
 the water came within one foot of the surface. 
 
 182 Cross-examination. 
 
 By Mr. Rogers : 
 
 I had noticed the rise and fall of the water in my wells since 1870. 
 The well I speak of is three miles from the Arkansas river. I have 
 never noticed a rise or fall independently of a rise or fall of water 
 in the river. I can’t tell you how soon after the river rose the water 
 in the well would rise. Our land sometimes gets pretty wet and our 
 land never would dry out before the river would fall. 
 
 183 I know of one instance when the river rose as the result of 
 a cloudburst somewhere up there in Colorado or Kansas, and 
 
 two days after that I found in Dr. Hunt’s pasture, which is three 
 miles from the river, the water raised right up in water ponds in 
 low places where they had rain and they needed rain before. I 
 think that water had risen up from the water that came down in the 
 big Arkansas river, or at least related to it. That was my supposi- 
 tion. I had been there before and know the places were dry and 
 needed water. 
 
 184 There were years prior to 1886 when the rain fall was 
 deficient or was lacking, but I wouldn’t undertake to give 
 
 185 the years. I can’t go back of 1885 or 1886. I mean that 
 I can’t bring any proof after 1886. I have a book and 
 
 I could tell you the situation prior to 1886 if I have that 
 book. I remember a droughty year prior to 1886 — the year 
 
 186 1874. I don’t remember any other extremely dry years. 
 There were other years that could be considered droughty. 
 
292 
 
 THE STATE OF KANSAS VS. 
 
 We had one last year and we had some dry seasons prior to 1886, 
 but I can’t tell you what years they were, only 1874. That was an 
 extremely dry season, and we had dry seasons in them years. 1874 
 is the only one that I can remember and give the year. When we 
 had droughts all the crops not on the bottom lands failed. 
 
 188 We do not now have a period of high water in the Arkansas 
 river every year. We had it the first years I came here. 
 
 The floods of late have stopped, with the exception of once in a 
 while. They have been gradually stopping for the last 
 
 189 twelve or thirteen or fourteen years. There is not one-fourth 
 of the water, taking it all through, coming down this river 
 now, that there was in the early years. So far as the high 
 
 190 waters are concerned we do not now have more than one- 
 fourth of the water coming down at high periods that used 
 
 to come down. Even our June floods, or what we call June — the 
 water in June — is not as high as the general run was of the river 
 then in the dry season. Sometimes we don’t know whether we have 
 got the June flood or not. We can’t say that we have any 
 
 191 more in June than at any other time of the year. It is the 
 WI1F general understanding in this neighborhood that the 
 
 Arkansas river has been dammed in Colorado and the flood waters 
 stopped. 
 
 Redirect examination 
 
 By Attorney General Coleman: 
 
 196 The patch of hardpan where I dug the well when we went 
 through the hardpan was about four rods wide and about 
 eight rods long. 
 
 197 We can tell from looking at the surface or the kinds of 
 crops grown whether the land is hardpan or not. 
 
 Recross-examination. 
 
 By Mr. Hayt : 
 
 198 At the time I dug my cellar last year the condition in 
 the country was ordinary. It was not dry and it was not 
 
 wet. That was about the month of March. The water came in the 
 latter part of May and receded in June. The rainfall in the month 
 of May was quite heavy, a little heavier than the average. I can’t 
 say whether the month of May, 1903, was considered here in this 
 community as one of the wettest months of the last ten years. I 
 know that the rain fall was very heavy during the month of May, 
 1903. It was heavier than usual. 
 
THE STATE OP COLORADO ICT AL. 
 
 293 
 
 199 D. E. Breese, Wichita, Kansas. 
 
 Direct examination. 
 
 By Mr. Loomis : 
 
 I have lived in Sedgwick county, Kansas, for the last twenty-six 
 years, and about eighteen miles up the river northwest from Wichita. 
 I have owned land adjacent to and near the Arkansas river during 
 that time and have now something over a thousand acres. 
 
 200 My land lies about two miles north of Colwich in the Arkan- 
 sas valley. My land doesn’t all lie in a body, and I have 
 
 owned land along the Arkansas river for twenty-five years. During 
 this time I have been acquainted with the Arkansas river and have 
 observed the flow of water in it during the different seasons of the 
 year. I settled in the Arkansas valley in 1878. Leaving out what 
 we used to call the high water period, commencing perhaps 
 
 201 in the middle or latter part of May, and extending up to per- 
 haps the middle or latter part of June, from that on during 
 
 the growing season the water used to average at least two to four 
 feet deep during all the growing season and fail. 1 mean by “grow- 
 ing season” July, August and September and on through the fall. 
 The stream of water in the river during those months was then from 
 bank to bank. Along in the neighborhood of 1880 or 1890 or some- 
 thing like that it gradually got less fora few years and then stopped 
 altogether. We haven’t any river, practically, with the exception of 
 now and then a short flood period since that time. It is just a range 
 of dry sand bars opposite my farm during the whole of the year, 
 with the exception of what we commonly call here the flood period, 
 which would be the latter part of May and the fore part of June. 
 We have no river at all, practically, and not only that but when we 
 get the high water flood the river does not stay up as it used to. In 
 a week it will be clear down again and the river will be gone. We 
 formerly had a flow of water several feet deep from bank to bank 
 during the same season of the year under similar conditions, but now 
 we have practically no river at all. This condition of affairs has 
 existed about twelve or fourteen years. 
 
 202 I have knowledge in regard to what is called the under- 
 now under the bottom of the Arkansas river. When the 
 
 river will rise a foot or two or five feet the water will rise right 
 under the farm land, right under my place, and I will state why I 
 know. I have dug probably forty or fifty wells in the neighborhood 
 of where my farms are located. I dug an open well on the north- 
 west quarter of section 33 and curbed it up and drew water out of 
 there with a bucket for a number of years. You could tell just as 
 well by looking in that well the condition of the river as though it 
 was at the river. When it was bank full it would fill so that you 
 could dip the water out of the well by still keeping hold of the bale 
 of your bucket, and as the river would fall the water would go down 
 
294 
 
 THE STATE OF KANSAS VS. 
 
 three or four or five feet, and for the last ten years there has been no 
 water in that well, with the exception of that flood period. This 
 underflow extends under all the bottom land of the Arkansas river. 
 The bottom land of the Arkansas river in the vicinity of my lands 
 are about four miles wide on the south side of the river, but in the 
 neighborhood of twenty miles wide on the north side. 
 
 203 I am quite familiar with all the valley land from Hutch- 
 inson to the Oklahoma line and should say that the average 
 
 width is from twenty to thirty miles, hut it narrows down pretty 
 well at Hutchinson. From Wichita to the Oklahoma line it would 
 be twenty or twenty-five miles wide easy enough, principally on the 
 west side of the river. The underflow between Hutchinson and 
 the Oklahoma line is about the same, I should think, as it is in the 
 neighborhood of my lands. The surface of this underflow has gone 
 down, in my judgment, at least four or five feet. The fall of the 
 underflow seemed to be gradual from along about 1888 to 1890, but 
 after about 1890 or 1891, it always furnishes plenty of water for 
 stock, but has been dry from that time on, with the exception of the 
 flood period. Of course whenever the river is up there is plenty of 
 water in the well, but when the river is down so that it don’t 
 
 204 run in the river there is dry sand in the bottom of the well 
 and we are forced to drive on below there for water. The 
 
 fall of the underflow corresponded with the diminution of the flow 
 of the water in the bed of the stream, and took place at the same 
 period of time. The effect of this fall in the underflow upon grow- 
 ing crops in the Arkansas valley on my farms has been a deprecia- 
 tion in the crops of at least one-third. 
 
 205 When I first came to Kansas the farmers in the Arkansas 
 valley were not dependent to any great extent upon the rain- 
 fall in raising corn on the bottoms of the Arkansas river. This was 
 on account of the sub-irrigation, as they call it, in the valley here. 
 By this sub-irrigation 1 mean the underflow. The corn got its moist- 
 ure from the underflow and was not dependent on the rainfall. This 
 condition lasted until late in the eighties or nineties or something 
 like that. Since that time most of the growing season, with the ex- 
 ception of along in May and June, we would not have any water in 
 the river scarcely. This affected the growing corn because the under- 
 flow would be that much lower. Whenever the river falls the un- 
 derflow would be about that much lower. In the early days when 
 the river was high, on the road or in the corn field, when it looked 
 perfectly dry on top in the middle of the day the ground would 
 be perfectly moist underneath. This existed from the time I 
 
 first came to the State until about 1889 or 1890. This 
 
 206 condition ceased, with a few exceptions. When we have 
 a good season, with the river full, we see that as we used to. 
 
 This stopped about 1890 and has been that way except in flood 
 periods when the river was bank full or nearly so. In order to 
 secure a corn crop now in the valley of the Arkansas river the 
 farmers are compelled to rely for their moisture upon the rain fall. 
 
THE STATIC OF COLORADO ET AL. 
 
 295 
 
 I have had considerable experience in digging wells and in hunting 
 and gunning, and if you dig a hole in a sand bar it will 
 
 207 begin to clear on the up-streatn side. It will do the same 
 thing in a well. 
 
 Q. Have you made any observations beyond the river banks? 
 
 A. Yes, sir, in those wells I am speaking of. 
 
 Q. What is the character of the observations you made? 
 
 A. Just observing where I dug the different wells and the differ- 
 ent holes in the bars at the river. Without any exception the water 
 will clear on the up-stream side first before it does on the down- 
 stream side. 
 
 Q. That is true in the wells you have dug? 
 
 A. There is no exceptions to that, as far as my experience has 
 gone. 
 
 Q. Indicating that the current flows in what direction ? 
 
 Mr. Hayt : We object to that as leading and suggestive, putting 
 in the mouth of the witness the answer which counsel desires. 
 
 A. To the southeast. 
 
 Q. How did that correspond with the direction in which the river 
 flowed ? 
 
 A. Parallel. 
 
 Q. Parallel? 
 
 A. Yes, sir. 
 
 Q. To what do you attribute the necessity of farmers along the 
 Arkansas valley being compelled to rely upon the rain fall in the 
 production of corn in the last few years? 
 
 A. It is for the lack of water in the river. 
 
 Q. And how does that affect the underflow? 
 
 A. Why, the underflow is that much lower. As the river falls a 
 foot or two or five feet the water under the ground falls as much 
 lower. 
 
 Q. You have beeu compelled to rely upon the rain fall since the 
 underflow went down ? 
 
 A. Yes, sir. 
 
 Q. And before the underflow went down you were not compelled 
 to rely upon the rain fall ? 
 
 208 Mr. Hayt: We object to that as leading and suggestive. 
 
 A. We didn’t depend upon the rain fall in former days, no, sir. 
 
 Cross-examination . 
 
 By Attorney General Miller : 
 
 I first settled in the Arkansas valley about twenty-five years ago. 
 My lands are all what you call first bottom land, and are about a 
 mile and a half back upon the river. I have been growing 
 
 209 wheat and corn principally, and have rotated the crops on 
 the lands. Since 1890 my crops at the least calculation have 
 
296 
 
 THE STATE OF KANSAS VS. 
 
 been one-third less. Crops are not as good this 3 r ear because they 
 were damaged by too much water. Ordinarily we would have good 
 crops when we had a good rain fall, and previous to 1890 we 
 
 210 would have good crops irrespective of heavy rain fall. The 
 river has gone on decreasing since 1891. There has been a 
 
 remarkable change since 1890. I attribute it to the water being 
 taken out of the river — the lack of water in the river. I don’t know 
 what has caused it. There is a lot of dry bars north of my farm 
 over there where there used to be a good stream through the grow- 
 ing season, two to four feet deep. There is three fourths of the lime 
 between the first days of July and on until fall that a person can go 
 through there dry shod. The depth of the underground water be- 
 neath the surface in the first bottom lands depended altogether on 
 the condition of the river. The well that I spoke of in front of the 
 barn there where I had occasion to draw water about three 
 
 211 times a day, when the river was nearly bank full, we could 
 dip out of a bucket, having hold of the bail. When it was 
 
 212 low down it would take a piece of rope probably five feet 
 long to reach it. It would vary. Then I could dip it out 
 
 with a pail. It was probably twenty or twenty-four inches below 
 the surface. That was when the water was pretty full in the river. 
 There were some years between the time I settled at Colwich down 
 to 1890 when the river was extremely low. I can’t just tell the 
 years. There were no years prior to 1890 other than the year 1874 
 when the crops were so very poor that it specially impressed itself 
 upon my mind. Since 1890 there was one year of low crops that has 
 impressed itself upon my mind. That was in 1901. In July and 
 
 213 August of that year we didn’t get much moisture. The rain 
 fall was pretty fair in the spring. I sold the biggest part 
 
 of my corn crop that year for seventy-five cents an acre, fodder corn 
 and all. I usually get forty cents an acre for the stalks after the 
 corn is gathered. The wheat crop was good that year. That was 
 in 1901. I never had anything between 1880 and 1890 as small as 
 for the year 1901. I was farming during 1880. We had good corn 
 all along then through those years. I recall one year when the corn 
 was extra good, but the year I couldn’t give, but I guess it 
 
 214 was about 1884 or 1885. I don’t know how far beneath the 
 surface of my land I have to go to reach this underground 
 
 water at present. The well I am speaking of always furnished 
 plenty of water for any amount of stock until about 1888 or 1889. 
 You couldn’t bail it down; but now in the dry weather when the 
 river ceases to flow there is no water in it. I don’t know how far 
 the waters have receded below. We went to work and drove a point 
 down and made a drive well. I have no knowledge at all of the 
 depth of this underground water below the surface at present. 
 
 215 There is a world of water, if you go down to it. I don’t 
 know how deep this underground water goes down. I don’t 
 
 know of any point along the river where it has ever been possible 
 to find the depth of that water. With the exception of May, a week 
 
THE STATE OF COLORADO ET AL. 
 
 297 
 
 or two, in the flood period, the river is practically dry 
 
 216 There is no river. The general effect of the value of lands 
 here as the years have proceeded has been that land is worth 
 
 more money now. Prices have gone up all over. There has been 
 a general rise all over the country. There hasn’t been much change 
 in price for several years in Sedgwick county. The first bottom 
 lands are the more valuable. The winter flow of water, beginning 
 with the month of December, for the past ten years does not corre- 
 spond with the flow during the same months for the years previous 
 to 1890. There is no comparison in that regard. Previous to 1888 
 there was a bridge built across the Big Arkansas river between Col- 
 wich and Bentley, about 1880, I think, and during eight 
 
 217 years, I guess it was, the water was high enough during the 
 winter so that when the ice went out it broke as many as four 
 
 times. Not every winter, but as many as four times in about eight 
 years. Since 1890 there has been no water to make any ice. Water 
 here in the well, if you will stand still and watch it, within five or 
 ten minutes your water will begin to get clear on the up-stream side 
 of your well. The water will not clear in days in Illinois in the 
 country I lived in. I am not able to give the years when the crops 
 were the lowest. I have kept no book of accounts nor dates nor any- 
 thing of that kind and could not recollect anything unless 
 
 218 something particularly impressed itself on my mind, like the 
 failure of corn in 1901. That is the only one that has been 
 
 so much out of the ordinary as to impress itself upon my mind suf- 
 ficiently to fix the date. That is the only season we have ever had 
 a total failure of corn in 25 years. In quite a number of years since 
 1890 there has only been half a crop, but I cannot give the 
 years. 
 
 219 I am in the land business, selling, myself, quite extensively. 
 A large part of my business — in Illinois in the same period 
 
 the land has gone from fifty to a hundred dollars an acre, but the 
 land has advanced here correspondingly I think. The quality and 
 productiveness of the lands has remained the same in Illinois. I 
 mean to say that lands that have any merit at all have advanced 
 all over the country. In this advance in price I do not think there 
 has been very much difference between the bottom lands 
 
 220 and the second bottom lands. The land has not doubled in 
 value here in the last twelve years. I think it has increased 
 
 221 fifty per cent. I don’t know of any lands that have been sold 
 around Colwich or Mount Hope in the. last two years. 
 
 Redirect examination. 
 
 By Mr. Loomis : 
 
 Q. Now, please state if the farmers would be more contented if 
 they had the underflow back to where it was in 1878. 
 
 Mr. Hayt: We object to that as leading and suggestive, and also 
 as irrelevant and immaterial. 
 
298 
 
 the state of Kansas vs. 
 
 A. They certainly would. 
 
 Q. Please state if the fanners would be more contented in the Ar- 
 kansas valley if they had the flow of the water back in the river 
 during the dry seasons as it was in 1870 and down until about 1890. 
 
 222 Mr. Hayt: Same as last objection. 
 
 A. They certainly would. 
 
 There has been no land changing hands recently in the Arkansas 
 valley to my knowledge, and I am not able to state its value. 
 
 Q,. Please state if you can how much more valuable it would be 
 provided you had the underflow under the laud similar to what it 
 was in 1878. 
 
 Mr. Dawson : We object to that as purely speculative. 
 
 A. At least one-third more. 
 
 223 Since 1890 the fertility of the soil is one-third less than 
 what it was about 1878. This is caused by lack of moisture. 
 
 224 We have been rotating in crops and have been trying to farm 
 good. Corn in this country matures about September. It 
 
 now not only requires a sufficient amount of rain fall to make a 
 corn crop, but the rain fall should be properly distributed 
 
 225 throughout the growing season. Corn in this valley has been 
 only occasionally injured by too much rain. The farmers in 
 
 the Arkansas valley have not only been injured from want of moist- 
 ure for their crops, but also in lack of water for their stock 
 
 226 and domestic purposes. This lack of moisture and the low- 
 ering of the underflow has damaged the crops to a great ex- 
 tent. 
 
 Recross-examination. 
 
 By Mr. Rogers : 
 
 227 I first ascertained the cause of this changed condition in 
 respect to the amount of water in the river by reading an ac- 
 count of it in the papers, the “ Wichita Eagle ” for one. To some 
 extent I think it gave an account of the cause, referring to their 
 ditches and reservoirs and taking water from the river. 1 think 
 this was about ten or twelve years ago. We had been hearing of it 
 prior to that time. They were putting ditches in out there. We 
 heard they were appropriating the water in the State of Colorado, 
 and that was taken as the cause of the lessened flow here so far as I 
 know. 
 
 229 Most of this talk has come up within ten or twelve years. 
 Of course there was talk before that but it got to be very gen- 
 
 230 eral along perhaps in 1892 or 1893. I have never asked any 
 one how much they thought they were injured. We have 
 
 talked about being damaged, all of us. I understood, in answering 
 the question propounded by counsel, in saying that the people along 
 this river had been injured, that they wanted to know what amount 
 
THE STATE OF COLORADO ET AL. 
 
 299 
 
 I had been damaged, and I told them at least one-third. The 
 answer is applicable to the valley in general. The lands in the 
 valley lie all about the same. If one man is damaged by the 
 
 231 shrinkage of the underflow they are all damaged alike. I 
 argue that because I have been damaged everybody else along 
 the river has been damaged. 
 
 232 The first two farms I bought, I bought of the Santa Fe 
 Railroad Company. When they were selling their grant 
 
 lands through here the first bottom lands were at least thirty to 
 thirty-five per cent, higher than the second bottom or up-lands, and 
 they have continued to be higher. All the people that were selling 
 claimed this was on account of sub-irrigation. There has not been 
 very much land changing hands there within the last two years. 
 There has been up land farms that have sold within the last four 
 years as high as anything has ever brought in the bottom. I have 
 nothing in mind in the bottom that sold for anything more than 
 the up-land has been selling for in the last'three or four years. 
 
 233 I don’t know of anybody moving off or selling the land be- 
 cause of any effect that lias been produced by the flow of the 
 water in the river. I have never heard of a case of that kind . 
 
 234 From 1890 on up there has been practically no water in 
 the river in the fall and winter. Prior to that time there 
 
 was so much water in the river in the fall and winter that a man 
 with boots would have to be careful in crossing it. I don’t 
 237 know what land is selling for. I have no price on my laud ; 
 it is not for sale. 
 
 239 H. H. Hansen (recalled), Wichita, Kansas. 
 
 Further cross-examination. 
 
 By Mr. Rogers : 
 
 When I was talking about the amount of water flowing in the 
 river this morning, I was talking about the amount of water in the 
 river at the time the crops were growing, in the summer. In the fall 
 and winter we had from about six to eight inches. We would con- 
 sider that a good flow now; we didn’t then. That flow continued 
 up to some dozen years ago. It didn’t all disappear at once. 
 
 240 It came gradually that way. It got less and less. I can’t 
 say whether the water in the river in the winter now is less 
 
 than when I came to the country prior to 1890, but I do know that 
 we haven’t got it in the fall of the year. 
 
 Redirect examination. 
 
 By Attorney General Coleman : 
 
 241 I can’t compare the amount of water in the river in the 
 winter time since 1890 with the amount of water before 1890, 
 
 because that is the time of year when we didn't care anything for 
 water and I didn’t notice it. 
 
300 
 
 THE STATE OF KANSAS VS. 
 
 243 G. M. Shive, Wichita, Kansas. 
 
 Direct examination. 
 
 By Mr. Ashbaugh : 
 
 I have lived in Bnrrton, Harvey county, Kansas, since August, 
 1885, and I lived prior to that time two miles southwest of Burrton. 
 I settled there on the fifteenth day of April, 1874. My present resi- 
 dence is about eight miles from the Arkansas river, and my first 
 residence was six miles. My lands were first bottoms; it was a 
 sandy soil, black loam mostly. I have been acquainted some- 
 
 244 what with the average flow of the river in the early years. 
 The average flow of the Arkansas river during the dry season 
 
 of the year, leaving out the months of May, June and July, for the 
 first ten years after I settled on the first land, was not more than one 
 to two feet deep. The average flow of the river during the same 
 months and leaving out the same months for the last ten years has 
 been fully one-third less. It is one-third less in height. During the 
 first years I should say the river on an average was eighty or ninety 
 rods wide. Since I first knew the river the banks have narrowed, I 
 believe, one-third. I have been acquainted with the river up and 
 down there for eight or ten miles, and I think the average 
 
 245 width has decreased one-third through the whole eight miles. 
 That is my judgment. We generally understand it has been 
 
 on account of Colorado taking off the water supply. 
 
 There is such a thing as an underflow ; it extends back as far as 
 to Burrton and back to the Little river. It extended under the 
 land where I first lived. I have had occasion to observe this un- 
 derflow at Burrton lately. The Santa Fe has a large railroad well 
 there about 22 feet deep and 12 feet across. The underflow has 
 gone down since the first years that I knew it. I am not able to 
 answer, hardly, how much it has gone down, but I know the water 
 doesn’t stand up so near the surface nor as high as it used to. 
 
 246 It is six or eight feet lower. I have had occasion to notice 
 whether the underflow rises and falls according to the rise 
 
 and fall of the river. It does. When the river is high the water 
 rises up in that well at Burrton, eight miles from the river. There 
 is a current to this underflow there. It flows to the southeast. I 
 observed it in that railroad well at Burrton. In one of those dry 
 years back probably eight or ten years ago the well gave out and 
 the company went to work to dig the well deeper, and the while 
 they had the top torn off I had occasion to notice it a time or two. 
 One time some others and myself were looking down in the well. 
 The water was clear and we could seethe bottom plainly, and while 
 we were there we dropped down some little sticks and one thing or 
 another on the water and we could see it float gradually to 
 
 247 the southeast. The lowering of the underflow on the first 
 bottom lands has had the effect to cut the corn off badly from 
 
THE STATE OF COLORADO ET AL 
 
 301 
 
 want of moisture. During the first years after I went there it got 
 its moisture from sub-irrigation mostly. During the last five or ten 
 years it cannot get moisture from the sub-irrigation, not so much 
 any way. 
 
 Cross-examination. 
 
 By Attorney General Miller : 
 
 Where I located at Burrton we always understood that it was in 
 the first bottom. There is no bluff between us and the river ; 
 
 248 it is level, so far as I can tell. When I first settled there in 
 1874 the underground water was usually about six or seven 
 
 feet from the surface in the dry seasons. There was no particular 
 change between 1874 and 1885. I first noticed the change some- 
 where from ten to twelve years ago. The first thing that attracted 
 my attention to the change was when our ground would get rain it 
 wouldn’t seem to last any length of time. The corn would wither 
 up. It seemed the same amount of rain didn’t do the good it for- 
 merly had done. I have never made any experiments or tests, 
 
 249 or anything to discover how much the underground water 
 has fallen. I have heard a number of farmers say that they 
 
 had sunk their wells deeper for water. I haven’t had to make any 
 change in mine. I don’t know the depth of the water after we 
 reach it. 
 
 250 When I first located there the water was about six feet be- 
 low the surface of the ground on my place. I produced good 
 
 crops when it was that low. Right now the water is not very low, 
 but during the last three years it has been from three to six feet 
 lower than during the earlier years. I haven’t looked into that 
 railroad well for several years until yesterday; now the 
 
 251 water is about nine feet from the surface. The time when 
 they dug the well deeper I guess it was sixteen feet down to 
 the water. 
 
 252 At Burrton the Little river is about six miles from the 
 Santa Fe railroad. I have only occasionally seen the Ar- 
 kansas river of late years during the winter months. There is not 
 near the amount of water running that formerly ran when I did 
 see it. 
 
 Since 1889 we haven’t had a big corn crop in that country. I 
 don’t remember about the years since except that in 1901 
 
 254 there was a complete failure. It was a very dry year. For 
 the last ten years the average corn crop through our country 
 
 there has not exceeded twenty bushels. I have rotated the crops 
 but haven’t used any fertilizer. I believe it has been in some sort 
 of a crop every year. Land is worth more now than in 1885. 
 
 255 Outside of boom periods, I think land is worth a little more 
 now than formerly. I do not desire to sell my land. I am 
 
 perfectly satisfied with it; I think it is a pretty good investment. 
 
302 
 
 THE STATE OF KANSAS VS. 
 
 256 Redirect examination. 
 
 By Mr. Ash baugh : 
 
 When I stated that I was satisfied with my land, I would be better 
 satisfied with it if the underflow was restored as it was when I knew 
 it first. It would be more profitable and valuable to me. 
 
 257 Silas Rutledge, Wichita, Kansas. 
 
 Direct examination. 
 
 By Mr. Ashbaugh : 
 
 I live now in Woods county, Oklahoma, for the last two years. 
 Prior to that time I lived in Eagle township, Sedgwick county, upon 
 the Arkansas river, on the southwest quarter of section 34, 25-2. I 
 settled there in January, 1871, and lived there until 1902. My land 
 was bottom land and was within 40 rods of the Arkansas river, on 
 the south or west side. 
 
 258 I observed the flow of the river during the thirty odd years 
 I lived there. The average flow during the dry season ex- 
 cluding the months of May, June and July, for the first ten or fifteen 
 years that 1 lived there was about I should think from two and a 
 
 half to three feet deep. The width of the river varied in 
 
 259 places. Right east of my place I should think it must have 
 been twelve to fifteen hundred feet wide from bank to bank. 
 
 Just north of me was a point where it would be between five and 
 six hundred feet wide. This is the narrowest place I know of 
 between Wichita and Hutchinson. The average width of the river 
 I should think would be about eleven hundred or eleven hundred 
 and fifty feet. For the last ten years it is a hard question to 
 
 260 answer what the average flow of the river has been, because 
 the river went entirely dry, and there would be no flow at 
 
 all. From about 1888 to 1902 the river generally went dry in the 
 month of August and remained dry until probably October. The 
 last of September and the month of October it usually went dry. 
 During the winter time there was generally I should think probably 
 six inches of water. 
 
 I have had occasion to observe the underflow. When I first went 
 there I dug an open well on my place, and while I had that open 
 well I could see at times that the water was higher in it than it was 
 at other times, and by observing the height of the water in 
 
 261 the river forced me' to believe that the rise and fall of the 
 river had to do with the water in my well. It corresponded. 
 
 When there was high water in the river there was a corresponding 
 height of water in the well, and when there was low water in the 
 river it was low. During the last ten or fifteen years the level of the 
 underflow has gone down from three to four feet. The falling of 
 the underflow has diminished the productiveness of the soil. We 
 don’t get as heavy corn crops as we used to. Our corn crops are not 
 
THE STATE OE COLORADO ET AL. 
 
 303 
 
 so certain. They are not so certain for the lack of under- 
 262 flow, as I consider it. During the first fifteen years our corn 
 crops were practically certain, but during the last ten years 
 they haven’t been. During the first ten years I felt positive that 
 we could raise corn from the moisture of the underflow, and we 
 did. During the last few years we have to depend on the rain 
 fall, and whether the rain falls opportunely or not. I should 
 say that the fall of the underflow has affected the general pro- 
 ductiveness of my land from one third to one half. This ap- 
 plies to all crops that depend upon the underflow for their moisture. 
 I can’t say how far back the underflow extends from the river. My 
 observation was on that particular quarter section I spoke of, and I 
 would not like to state about others. 
 
 Cross-examination. 
 
 263 By Attorney General Miller : 
 
 This piece of land that I lived on was right up the Big Arkansas 
 river northwest of here about nineteen miles. I sold it for fifty dol- 
 lars an acre. I paid $22.25 for it in 1870. I got it from the Gov- 
 ernment. At the time I settled there the water was flowing 
 
 264 in the river all the time, and as I said, I dug an open well 
 there in the winter and I went down nine feet before I struck 
 
 water. This was in December, 1870, or January, 1871. It was on 
 the highest land that I could get onto. I should think there 
 
 265 was about 40 acres of my land that was lower, I should say 
 five or six feet lower. I noticed that change in the water 
 
 somewhere in the 80’s, I think, probably in 1887 or 1888, some- 
 where along there. That is when I noticed the underflow 
 
 266 water commenced to sink lower. We ceased to get the water 
 in the river, and consequently we ceased to get the sub-irriga- 
 tion we had been used to. I had a pump at my hog yard where I 
 watered my hogs and it was only about twelve feet deep. I had to 
 put it down deeper to get water on account of the water sinking 
 below the point of that pump. I think I made it sixteen feet deep, 
 then I got plenty of water. This underflow came within about five 
 to nine feet of the surface during the good times along in the seven- 
 ties. Corn was my principal crop. I did not rotate my crops or 
 
 fertilize the land in them days. 
 
 267 The last year or two I was there I hauled manure on the 
 land and rotated the crops. The rest of the time I went on 
 
 growing corn without fertilization or changing it. I didn’t rest the 
 land during any year. 
 
 268 There was a bridge put in in 1881, I think, right north of 
 my house, and there came an ice gorge in the last of Febru- 
 ary or first of March soon after that bridge was put in and carried 
 the bridge out. 
 
304 
 
 THE STATE OF KANSAS VS. 
 
 In 1888 when I noticed the falling off in the water the 
 
 269 crops were shortened up. In 1889 we had a good corn crop. 
 It was exceedingly good, but not so good in 1890. In 1891, 
 
 1892 and 1893, they were short. 
 
 The thing that kept up the value of my land when there was a 
 continous, protracted falling off in the crop yield was the de- 
 
 270 mand for land. Land has increased in Illinois and all the 
 Western States. There has been nothing done to rob Illinois 
 
 271 of its natural advantages. 
 
 272 Cross-examination continued. 
 
 By Mr. Rogers : 
 
 I know Mr. Houston, the attorney, in Wichita. I have talked 
 with him about this matter. He went to Colorado at my sugges- 
 tion. My neighbors and I had been talking about this matter for 
 several years previously. The first that I recollect of hearing 
 
 273 about this water were my own utterances. I think it was in 
 the 80’s there was a meeting called in this city, a mass meet- 
 ing of the farmers of Sedgwick county, to take up the interests of the 
 Sedgwick county farmers. I attended that mass convention. At 
 that time I had observed this diminution in the flow of the river and 
 of the water under the bottom lands. I believed it to be caused by 
 the ditches in Colorado taking the water out of the river. I made 
 
 % that statement in an open meeting attended by farmers living 
 
 274 along the river. I presume they all heard it. 
 
 I have never been through Colorado. I went up the 
 Arkansas river as far as the Santa Fe railroad goes. I was on my 
 way to California and cut across the corner of the State of Colorado. 
 I went as far as La Junta in 1889. I think this agitation began 
 somewhere from 1886 to 1889. 
 
 275 I don’t know positively what reports were published in the 
 “ Wichita Eagle.” It often spoke of the ditches being built 
 
 there, but exactly as to what the reports were I can’t tell. 
 
 I believed the irrigation development in Colorado deprived us of 
 the water, and finally I thought it was diminishing the value of my 
 land. I am very sure that it did ; that is, that it diminished the 
 value of the lands for the growing of crops. We couldn’t grow so 
 much crops. I naturally supposed that in the construction of the 
 ditches a large expenditure of money was required. I never 
 
 276 entered any suit to stop the building of ditches in Colorado or 
 the diversion of the waters of the Arkansas river. 
 
 278 We have expected the State of Kansas to win this suit in 
 this case, and, as citizens of the State of Kansas, we would 
 
 be benefited by Kansas winning the suit. There have been several 
 meetings in this part of the State in which this suit was discussed, but 
 I can’t tell exactty how many. They were probably during 
 
 279 the years from 1890 to 1900. The thing was pretty thor- 
 oughly agitated from 1890 to 1900. 
 
THF St ATE OF COLORADO Ft AL. 
 
 305 
 
 283 The depth of the soil on ray land I should think is from 
 three to six feet. It was desirable to have the water in the 
 soil itself. There was a difference in my crops. The deeper 
 
 284 the soil, if not too deep, the heavier the crops. I think the 
 deeper the soil the surer the result. Along this valley crop 
 
 conditions are determined to some extent by the depth of the soil, 
 notwithstanding the absence of water in the river. 
 
 285 Redirect examination. 
 
 By Mr. Ashbaugh : 
 
 I didn’t mean that it does not make any difference whether it has 
 water or not. 
 
 There were no large cities here when I came to this country. We 
 have plenty of railroads now. 
 
 286 There was a difference in the value of the uplands and the 
 bottom lands when I came here, because of the underflow. 
 
 If the underflow should be permanently removed from the bottom 
 lands, there would be no practical difference between the uplands 
 and bottom lands. 
 
 Packing houses, railroads, the increased population in Sedgwick 
 county, all such things have affected the price of land in this 
 valley. 
 
 287 I thought that the instituting of a suit because of the taking 
 of water was too large an undertaking for one individual to 
 prosecute, and that the proper party was the State of Kansas. 
 
 289 (Complainant’s Exhibit A-4 introduced in evidence.) 
 
 290 Charles E. McAdams, Wichita, Kansas. 
 
 Direct examination. 
 
 By Mr. Ashbaugh : 
 
 I have lived in Wichita, Kansas, since 1873, continuously, and 
 am a practicing physician. During the early years I had occasion 
 to give attention to experiments made by the board of health in 
 the city of Wichita, concerning the location of the water works. 
 
 291 I was a member of the city council and of a committee on 
 health. This health committee was appointed by the city 
 
 council. I had occasion to make experiments and observations 
 concerning the underflow of the Arkansas river through the city of 
 Wichita. I can’t give the year, but I think it was in 1882. I was 
 chairman of that committee, and we had instructions from 
 
 292 the city council to make the necessary inquiries in regard to 
 locating the water works and finding the best possible place 
 
 to get the water for the city. We drove wells in different parts of 
 the city to different depths and took samples of water from different 
 depths for analytical examination. This occupied several months. 
 20 —7 
 
soe 
 
 Ttttc STAf 1C OF KANSAS VS. 
 
 In driving these wells I discovered that the depth of the sand with 
 the water in it beneath the city was a uniform depth of 36 feet. In 
 driving these wells we went through from five to seven dif- 
 
 293 ferent layers of what was called hardpan, of a marl formation. 
 We found water any where within twelve feet and often times 
 
 less than that, but it was not fit to use. 
 
 I performed some experiments on the lot where this post office 
 building now stands to determine whether the first water had a 
 flow. I can’t remember the exact year, but it was near 1882. 
 
 294 These lots are about 250 feet east of Main street and about 
 250 feet south of Douglas avenue. We had no water works 
 
 and all the water was pumped out of the ground. We drove these 
 wells on these lots to get the flow from some privy vaults and cess- 
 pools on the east side of Main street. I had an idea that the water 
 flowed to the southeast. I drove five wells on this lot. Four of 
 them were at the corners of a twenty-foot square, and the 
 
 295 fifth one in the center. I drove these wells sixteen feet deep, 
 all the same depth. The men pumped the water out of them 
 
 all so that the water was clear, and I unscrewed the stock from the 
 middle well and suspended one-half ounce of red aniline in a cheese 
 cloth, with a weight enclosed in it and a string tied to it so that it 
 would sink properly, and measured the depth from the top of the 
 stock to the center of the perforated point of that tube, and I 
 suspended this red aniline in the center of the pump so that it 
 would be in the center of the perforated tube. I had a man at 
 each of the four pumps. I took a note of the time with my watch 
 from the time the aniline was suspended in this pump, and had par- 
 ties watching each one of the pumps that was working, pumping 
 the water. These pumps pumped just alike. They were the same 
 size and the same depth. The colored water from the red aniline 
 appeared at the southeast pump first, and if I remember right I 
 think it took a minute and a quarter before the red water appeared 
 at the southeast pump. It appeared next in the southwestern 
 pump. I think there was over half a minute difference in the 
 red water appearing at the southeastern than it was at the 
 
 296 southwestern pump. The next red water appeared at the 
 northeastern pump. The northwestern pump I don’t think 
 
 showed any red water if I remember. I kept these four pumps go- 
 ing at the same rapidity for I think two hours. As I remember it, 
 no red water appeared at the northwestern pump, and it was several 
 minutes in appearing at the northeastern pump. It showed that 
 the water flowed from the northwest to the southeast about thirty- 
 five degrees. The pump at the southeast corner showed the great- 
 est amount of red water or the deepest color, and the next one in 
 amount of color was at the southwest corner. I don’t remember 
 how deeply the water was colored at the northeast pump. It ap- 
 peared at the southeast, pump the quickest and the color there 
 was the deepest. 
 
THE STATS OS COtORADO KT At. 
 
 307 
 
 297 Cross-examination. 
 
 By Mr. Dawson : 
 
 The lot upon which the wells were sunk was four blocks east of 
 the river, which would be about 1200 feet, plus the width of 
 
 298 the streets. The streets are from eighty to one hundred feet 
 wide. I can’t say in what time of the year I sunk those wells. 
 
 I think it was in the fall. I don’t know what the condition of the 
 river was at the time. I think you could find water at a depth of 
 nine feet, but 1 think the shortest pipe I drove and took sam- 
 
 301 pies of water was twelve feet. 
 
 The river runs directly west of the point where I sunk 
 
 302 those wells. It might have been three or four or five layers 
 of hardpan that I went through in driving those wells. It 
 
 was the same thing in each hole, the same number of layers of 
 hardpan and the same thickness. Between the layers of hardpan 
 the driving indicated that the formation was sand and in 
 
 303 the various layers of sand we would find water. I "had a 
 man at each pump. I had them pumping some time to get 
 
 the water clear after the wells were driven. They worked these pumps 
 perhaps half an hour before this coloring matter was put in. They 
 all worked the same in pumping them clear. It riled up the water in 
 getting these pumps down, and we pumped it to get it clear. Each 
 pump was pumped the same time to get it clear. The) 7 were possibly 
 not pumping the same all the while ; one man might stop to get a 
 drink and the other go on pumping, but we had a man at each 
 pump. When 1 dropped the aniline into the center pipe 
 
 304 they were working the pumps, all the time. I told them to 
 keep pumping those pumps, and I suppose they did. I don’t 
 
 think the men pumping worked by strokes so that they all worked 
 with equal rapidity. I don’t know anything about that. The 
 pumps were the same; they were all new and of the same make. 
 The men were different in physical strength and size ; they were 
 common laborers. I instructed them all to pump alike and I 
 wanted to get the same flow of water, but whether they did 
 
 305 or not I don’t remember. It is possible that if the water 
 stood at the same level in each of these five holes at the time 
 
 we commenced pumping and one pump was started shortly before 
 the others or was a little better pump it would be likely to draw 
 the coloring matter to that particular outlet quicker than to the 
 others. I think this is probable. There was not much chance of 
 lowering the water, as the pressure seemed to be uniform all 
 
 306 the while. I think the coloring matter went to these pumps 
 from the subterranean flow. I was tryiug to determine by 
 
 307 this experiment about the flow of the water — in what direction 
 it went. It was not flowing in three different directions, but 
 
 it came out of holes in three dilferent directions. Coloring matter 
 dropped in water is likely to spread in all directions if it is undis* 
 turbed by any current or pressure in any direction. I thought 
 
totE STATIC OF KANSAS VS. 
 
 there was a well established current or underflow in the direction' 
 from the northwest to the southeast in this sand. I based that upon 
 that experience with that coloring matter. That is the only experi- 
 ment of the kind I have made. 
 
 308 As to whether or not there might have been an old channel 
 of the river there at some time, I am notjable to state. I have 
 an opinion, but that is not worth anything. My opinion is 
 
 309 that the river bed or channel used to be over here where 
 Chisholm creek is, over near the bluffs. 
 
 310 I drove one well afterwards down 36 feet and took five 
 quart samples of water out of that. The deeper I went the 
 
 better the water was and the less it was impregnated by animal 
 matter. The more of those layers of marl there were driven 
 
 311 through the better the water seemed to be under them. From 
 those investigations I made, water works were finally estab- 
 lished in the northwestern part of the city, I think about a 
 mile and a half from where these experiments were made. 
 
 It might not be that far; it may not be over a mile on an 
 
 312 air line. They drove their pipes down I think between thirty 
 and thirty-six feet. I think they drove down a hundred or 
 
 two hundred of those wells. The present water works I think are 
 three or four hundred feet from the river, and about one-quarter of 
 a mile from the Little river, and where those wells are sunk it is 
 called an island. It is only an island when the water is pretty 
 high. It is almost opposite the mouth of the Little river, 
 
 315 about a quarter of a mile from it. I think they went 36 feet 
 there. The contaminated water I found the nearest to the 
 
 surface where I put down those four wells was heavy loaded with 
 material and it would naturally move less rapidly than that which 
 is less contaminated. It was about nine feet down to this water. If 
 you have a surface stream in which you discharge sewage the rapid- 
 ity with which that stream will purify itself depends very largely 
 on the current or the flow which the stream has, and if you would 
 discharge sewage into an underground stream the quickness with 
 which it purified itself would also depend somewhat on the 
 
 316 rapidity with which it moved through the gravel and soil. 
 In case the underground waters are very 7 strongly contami- 
 nated I do not think that would be a circumstance going to show 
 that the water was moving little if any. I am of the opinion, from 
 the demonstration I made, that this underground water where the 
 wells were sunk moves. 
 
 317 Redirect examination. 
 
 By Mr. Ashbaugh : 
 
 The sheets of hardpan spoken of were not connected with each 
 other and the water from one stratum could get to another stratum. 
 At the time these experiments were made the city 7 had no sewage 
 and all the imperfections from the cess pools and vaults got into this 
 
THE STATE OF COLORADO ET AL. 
 
 309 
 
 surface water. From my experience as a physician in this city, 
 and having made these special observations, I should say that if the 
 underflow should he materially lowered or destroyed it would 
 
 318 affect the health of the city. The present water works system 
 furnishes purer water than the water furnished from wells in 
 
 319 the city. The present water works are not located where they 
 were located in the first instance. 
 
 Recross-examination. 
 
 By Mr. Dawson : 
 
 At the time I made my investigation and report to the city I ad- 
 vised the citizens of Wichita to drive their wells to a depth 
 
 320 of thirty-six feet uniformly all over the city. A great many 
 did so. I presume some did not. I think the average dis- 
 tance from the surface to the first water in Wichita is about nine 
 feet. That first water is not good for domestic purposes. The fact 
 that the water level was lowered, from nine to twelve feet, would not 
 
 have any effect upon the health of the community if the 
 
 321 amount of the subflow current was the same as before. I 
 wouldn’t think it would have very much effect. 
 
 322 John W. Shive, Wichita, Kansas. 
 
 Direct examination. 
 
 By Mr. Ashbaugh : 
 
 I have lived near Burrton,in Harvey county, Kansas, since June, 
 1871. I own the northwest quarter of 20, 24-3. It is a sandy loam 
 about the same as the bottom lands throughout the valley There 
 are first and second bottom lands along the Arkansas river. 
 
 323 The first bottom lands on both sides of the river at Wichita 
 are about seven miles wide. I am acquainted with the 
 
 Arkansas valley from Wichita to Lakin, Kearney county. The 
 Arkansas valley at m 3 7 place, on both sides of the river, is 
 
 324 about fifteen miles wide. At Hutchinson and Sterling it is 
 about eight miles wide. At Great Bend, including in some 
 
 places second bottoms, it is about eight miles wide. Often 
 the land for a mile wide along the river is lower than the other, 
 which some would call first bottom. The valley is not quite so wide 
 at Dodge City. The valley, including first and second bot- 
 
 325 toms, at Garden City, is six or eight miles wide, and at Lakin, 
 about five or six miles. I 11 most places between Wichita and 
 
 Lakin there is not a well defined distinction between the very point 
 where the first bottom lands end and the second bottomlands begin. 
 I 11 some places it goes up more abruptly and in some places there is 
 a gradual ascent from first to second bottom. Some men might call 
 first bottoms what others would call second bottoms. 
 
 (Objection .) 
 
310 
 
 THE STATE OF KANSAS VS. 
 
 The first or second bottom lauds extend back from the 
 
 326 river beyond the city of Burrton four or live miles. The city 
 of Burrton is in what I term the first bottoms of the Arkansas 
 
 river, the valley between the two rivers. The city of Burrton is 
 eight miles from the Arkansas river. 
 
 I am well acquainted with the flow of the Arkansas river. The 
 average depth of the flow of the river during the dry season of the 
 year, excluding May, June and July, for the first fifteen years 
 
 327 that I knew it, I should say was from two to two and a half 
 feet. The average flow of the river for the last ten years dur- 
 ing the dry season of the year, excluding the same three months, is 
 not so great. Sometimes there is no surface flow at all. I should 
 say that for one-tenth of the year there was no river at all and that 
 during the balance of the year, outside of those three months, the 
 average was not more than six inches. For the first fifteen years 
 that I knew the river, from Wichita to Hutchinson, I should think 
 it was a thousand to twelve hundred feet wide on an average. The 
 river has filled and in some places the banks have changed ; they 
 have filled on one side and have washed somewhat on the other. 
 On an average, the banks are narrower from Wichita to Hutchin- 
 son than they were during the early years by at least one-third. 
 
 328 (Objection.) 
 
 These banks have become narrower by the bars not being covered 
 with water and trees growing on the bars where they have usually 
 been covered with water; then when the river gets up it will fill 
 there and make accretions, and in that way it lias narrowed the 
 river. This has been by natural, not artificial, means. The bed 
 of the river has filled and is higher than where it used to flow. On 
 the sand bars there is a growth of grass, underbrush and timber 
 from Wichita clear up to Hutchinson. There are islands there now 
 covered with grass and trees that were not there thirty years 
 
 329 ago. There are quite a number of those islands and they 
 exist up the river beyond Hutchinson so far as I know. The 
 
 bed of the river will not permit so much water to pass, and it is 
 more liable to overflow, and with the same amount of water the 
 overflow is greater than formerly. 
 
 (Objection). 
 
 330 The flood of July, 1904, was caused by the greatest rain- 
 fall I ever saw. 
 
 Just north of me is the Kissaway creek ; it is the main outlet for 
 the surface water. It is mainly a slough until it gets near the Little 
 river, and then it becomes a permanent stream. For the 
 
 331 country north of me in an excessive rain the natural outlet 
 would be the Little river; south the Big river. This excess- 
 ive rainfall of July, 1904, affected both the Big aud the Little 
 rivers. 
 
 The narrowing of the channel and the filling up of the bed of 
 
THE STATE OF COLORADO ET AL. 
 
 311 
 
 the Big river did affect the common outlet for those waters. The 
 channel of the Big river has been narrowed through the city of 
 Wichita within my recollection. The bridge at Douglas avenue in 
 Wichita, as shown in Complainant’s Exhibit A-l, used to 
 
 332 have eight spans in it. It is narrower now by about one- 
 third. 
 
 In the counties of Sedgwick and Reno, and for some distance fur- 
 ther up, the principal crop along the immediate river is corn, and 
 further out we raise corn, wheat, oats and alfalfa principally, and 
 from there up they raise more wheat and alfalfa. In Kearney 
 county the crop is principally alfalfa. The practical limit for corn 
 is about Kinsley or this side pf Kinsley, and west from Kinsley corn 
 is not considered one of their regular crops. 
 
 333 I am acquainted with what is known as the underflow. I 
 mean that this valley — the whole of the valley — is underlaid 
 
 by a stratum of water that flows parallel or very nearly so with the 
 river. This underflow where I live extends clear across the valley, 
 and so far as my experience, knowledge and information go it ex- 
 tends back to the bluffs on either side. It extends up the river in 
 the same way. Within the years of mv information and experi- 
 ence the underflow has lowered between three and four feet at my 
 place. When I first came to the country I often dug surface wells 
 and dug into the ground for other purposes, and the water then was 
 nearer the surface than it is now or has been since. When I dig 
 into the ground now to the water I find it about three and a half 
 feet furthers down at the same point than it used to be during the 
 same season of the year. The current of this underflow is 
 
 334 parallel with the flow of the river or nearly so. The surface 
 of the underflow is level with the surface of the flow of the 
 
 river, or we always supposed the surface of the water throughout the 
 valley, as measuring to the river, parallel, is on a level, and that is 
 the fact. The water in my wells, rises and falls with the rise and 
 fall of the river. It does this as far back as to the city of Burrton. 
 I am acquainted with the Santa Fe well in the city of Burrton and 
 saw it when they dug it. It was dug to furnish water for engines on 
 the Santa Fe railroad. The water in that well rises and falls cor- 
 respondingly with the rise and fall of the Arkansas river. The 
 underflow through all that country has a current in a southeast di- 
 rection. This condition extends up and down the river as far 
 
 335 as I know. The Little Arkansas flows into the Arkansas 
 river at Wichita. Below that is the Chisholm creek, the 
 
 Cowskin, the Ninnescah ; and the Walnut which enters the Arkan- 
 sas river at Arkansas City near the State line. 
 
 The lowering of the underflow has affected the crops in this val- 
 ley. We used to have^more of what we term sub-irrigation. Our 
 underflow was near the surface. Then we were certain to raise 
 corn, or almost certain, but since the water has receded we are 
 
 336 then affected by drought and the soil does not gain its moist- 
 ure from below as it used to. This has affected the crops in- 
 
312 
 
 THE .STATE OF KANSAS VS. 
 
 juriously and to the extent of one-third, I should say, of corn and 
 such vegetation. In the early years we were not dependent upon 
 rain for a corn crop, because the soil would gain its moisture from 
 this underflow. It would gain sufficient to make fair corn crops 
 with but very little rain. During the last few years it does not 
 make a good crop of corn under the same conditions, and now we 
 have to depend principally upon the rainfall, and to make a good crop 
 it should be distributed throughout June, July and August. Amount 
 of rain alone during the year will not make a good corn crop. The 
 rain might come at a season as it did this spring or summer when 
 it didn’t make a crop ; that is, at an inopportune time. In 
 
 337 order to raise a crop now we must have not only a sufficient 
 amount of rain but it must be properly distributed. It has 
 
 the same effect upon other crops that depend upon the underflow 
 for their moisture; that is, all vegetation, all the gardens and fruits; 
 and wheat and oats to some extent, but they are not grown much 
 very near the river, but back. Not so much the case with wheat 
 and oats. This same condition exists on up the valley. This change 
 in the conditions of the valley became noticeable about the year- 
 1890 to 1896, along there. It was after 1890 that I first observed 
 that the conditions were getting much worse. My attention was 
 first called to it by digging and finding that the surface water had 
 receded; that is, as regarding the underflow; but you see I raised 
 crops every year and I could tell from my crops; they would not 
 grow as well under the same conditions as they did formerly; 
 
 338 and by digging wells I found this underflow had receded to 
 some extent. Some others had observed it and it began to 
 
 be common talk throughout the country to know why our crops 
 didn’t grow like they used to. The lowering of the amount of 
 water, both in the flow of the river and the underflow, has lessened 
 the productiveness of this valley, so far as mv observation and in- 
 formation extend, to the amount of one-third. I mean that it still 
 leaves two-thirds as much ; that is, it wouldn’t make more than 
 two-thirds as much under the same conditions. This applies to 
 alfalfa to a certain extent, but I think not so much as to corn. This 
 condition has affected wheat and oats somewhat but not to as 
 
 339 great an extent as corn. This lack of moisture has affected 
 all kinds of garden vegetables raised on the first bottoms as 
 
 much if not more than corn. My answer as to the cause of this 
 diminution would only be speculative and from common informa- 
 tion, which is that Colorado is taking more water from the river, 
 and that amount of water taken from the river lessens its flow in 
 Kansas. 
 
 Cross-examination. 
 
 By Mr. Dawson : 
 
 I have lived in the same place since 1871. I now have 960 
 
 340 acres of land, cultivated principally to corn, wheat, oats and 
 I now have considerable alfalfa. Up to 1890 I raised princi- 
 
THE STATE OF COLORADO ET AL. 
 
 313 
 
 pally corn and since 1890 I have diversified my crops more by rais- 
 ing wheat. From 1871 to 1890 I rotated the crops to a certain ex- 
 tent, but sometimes I would raise corn on the same land two or three 
 years before I would rotate it. I didn’t fertilize the land. The 
 oldest land is in alfalfa. From a money standpoint there is not 
 much difference in productiveness between alfalfa and corn. One 
 cause of growing alfalfa was that my land was growing less pro- 
 ductive in corn and we found alfalfa was well adapted to our 
 
 341 vicinity and added it as another paying crop. I have never 
 had a failure of alfalfa on my lands after I once secured a 
 
 good stand, not from natural causes, except this year. This year it 
 got too much surface water. Land is better for alfalfa when it does 
 not have too much surface water or the underground water is not 
 too near the surface. The deeper the soil the better it is for alfalfa. 
 Alfalfa will go down for water for fifteen or twenty feet after it once 
 gets started, and it is better upon soil of that depth where it can find 
 water at that depth than if the water cotnes too close to the surface of 
 the ground. It does better on lands under which the waters lie deep 
 than corn does, for that reason. It is rather speculative as to how far 
 corn extends its roots into the ground. In dry seasons the roots will 
 go much deeper than in wet seasons. I would say that a corn root — 
 the main root. — will go down a foot and a half into the ground. 
 My land is still productive in wheat. It has not lost its productive- 
 ness for wheat so much as for corn and other crops. The 
 
 342 newer lands I have put into wheat and grain and the older 
 lands into alfalfa. The newer the land we consider the more 
 
 certain we are to raise wheat. My lands are about four miles from 
 the Arkansas river at the nearest point and nine miles from the 
 Little river. I live in the delta or the angle between the two, in the 
 valley extending from one river to the other. 
 
 The main channel of the river to-day I don’t believe has filled up., 
 what is left as channel, but I mean the parts that have filled have 
 narrowed the channel. The channel is probably as deep in 
 
 343 the banka as it was formerly. I wish to be understood as 
 saying that the part of the river bed which was formerly cov- 
 ered by water and which is now not covered has filled, but that the 
 channel, which has water in it all the time, has not filled. When 
 the river has been dry and no water running on the surface, it has 
 
 not had the tendency to fill the bed of the river right in the 
 
 344 main channel. The filling up was by the overflow of the river 
 carrying sediment into those places where the brush and timber 
 
 and grass had grown. The river is narrowing and consequently will 
 not carry as much water as it would in a wide channel. The primary 
 cause is from its being dry ; that is, these sands becoming dry which 
 form a part of the bed and young trees and grass and shrubbery 
 growing on them. Then the overflow when it did come would fill 
 in among that growth and would cover a part of the river and per- 
 manently occupy it with its accretion. I think the bottom on 
 which the river runs is about the same depth from the general sur- 
 
314 
 
 THE STATE OF KANSAS VS. 
 
 face as it used to be formerly. In the first fifteen years of my ac- 
 quaintance with the river June and July were the months usually 
 of the highest water. It seldom came up in May. We 
 
 345 nearly always had what we called the June rise, and that 
 
 would extend largely through the summer. Of late years 
 
 we have very little rise at all, but when they have come it was about 
 the same time of the year when we got the floods. As a rule I 
 would say that the water comes a little earlier now. I should con- 
 sider the shrinkage of the water in the river to be at least one- 
 
 346 half of the volume of water, in the fall months, all except the 
 summer months. There probably has been more than that, 
 
 taking the full year, but in the fall months especiallv it has been 
 very low, but in the winter months it probably has held a better per 
 cent. We usually have our wettest months here in June and July, 
 and that is true practical lv all over the State of Kansas. As a rule 
 these same two months have been the months of the highest normal 
 flow of water in the river. I attribute the decrease to the fact that 
 the water has been taken out above in ditches. I have not been in 
 Colorado. 
 
 348 If the crop reports for the State of Kansas should show ap- 
 proximately the same falling off in productiveness per acre 
 
 as the crops in the Smoky Hill, the Solomon and other rivers, it 
 would not change my opinion as to the cause of my lands 
 
 349 being less productive in corn than formerly. As I under- 
 stand it, our river here is different. We have an underflow 
 
 here that we are talking about tha- 1 understand those rivers do not 
 have, and the underflow is what affects us. I have never made any 
 investigations as to the Smoky Hill or Solomon rivers to find 
 whether or not there is any underflow or any underground 
 water. 
 
 353 I know in a general way the width of the country that the 
 Arkanses river drains in Kansas. It is pretty hard to tell 
 
 how wide a country it drains because all of the southern part of the 
 State here is drained bv the Arkansas — the western part. The 
 Cimarron goes into the Arkansas river. It does not strike it in this 
 State. I would say that the drainage anyhow — the average width 
 is one hundred miles. I would say that the cultivated lands in this 
 drainage have doubled during the last ten years over what it 
 
 354 was the first fifteen years that I knew the river. The run-off 
 of water is not as great from cultivated or ploughed lands as 
 
 it is from native sod lands. The cultivation of lands would cer- 
 tainly retard the discharge, but as to whether the permanent dis- 
 charge would be as great I can’t say. It would retard it at the 
 start ; it wouldn’t run off so fast nor so quick. The ploughed land 
 absorbes and takes up water more rapidly than the sod land. The 
 water does not evaporate as fast in the ploughed land. 
 
 355 The value of my land is from twenty to fifty dollars an 
 acre. There has been a time when these values were higher 
 
 on the average than at present ; that was just a little bit ago. 
 
THE STATE OF COLORADO KT AL. 
 
 315 
 
 Lands were more current. There has been no time prior to four 
 years ago when land has been any higher than it has been for the 
 last four years in my locality. In the main there has been a steady 
 increase in farming lands in that section of the country. The in- 
 crease of value was faster at some times than others. Sometimes it 
 would be at a standstill as it is now, and then it would advance again 
 from some cause. In the last five years the values have gone 
 
 356 up considerably. '1 he increase has been about twenty-five per 
 cent, in the last six years. This covers the bottom lands 
 
 generally along the Arkansas river, and there has been a corres- 
 ponding increase in second bottom lauds or uplands. In some in- 
 stances grazing lands have advanced more than farming lands in 
 that time. The growing scarcity of grazing lands I presume has 
 been the cause. Since 1890 we have never had a total failure of 
 crops. From the year 1890 we have had several short years, but I 
 don’t remember just which ones in the 90’s. They have nearly all 
 been short, and the years 1901 and 1903 were both short in my sec- 
 tion. They were years of scarcity of rain. The year 1902 
 
 357 was better than some other years. The best corn crop we 
 ever raised was in 1875. Up to the present time 1889 was the 
 
 35S best year after that, I believe. I am only speaking from 
 memory, you know, and you know that running back 
 through the period I remember some of the best years and some of 
 the poorest but to say which is the best, positively, I can’t do it. 
 After the year 1890 our crops seemed to be poorer than they were 
 before that, and much so, taking an average of ten years, say 
 from 1880 to 1890, crops in my vicinity were better than they were 
 from 1890 to 1900. Now, those statistics in the agricultural reports 
 are never correct. They are taken largely from local reports. Last 
 year we had where I lived the driest year we ever had. Now, I go 
 over the State and I find every year there has been locally good 
 crops somewhere, and poor crops, and for me to go all over this 
 State and say what has been in Kansas according to those statistics, 
 I can’t do it. When I speak of statistics I mean those made 
 
 359 up by the State of Kansas and the Government of the United 
 States. I don’t remember the kind of corn crop raised in my 
 
 section in 1880, but along about that time we had good, average crops 
 every year in our valley. The corn crop in the year 1880 was not the 
 worst one that we ever had in our locality. The Kissa way creek 
 
 360 is three and a half miles from the nearest point to my farm. 
 The main river is four miles. This creek never has water in it 
 
 except in wet weather. It empties into the Little Arkansas river. 
 The Little Arkansas river is a constantly flowing stream and it 
 empties into the main Arkansas river right in Wichita. I said the 
 underflow from the main river extendsacross my place to the 
 
 361 Little river. The underflow from the Little river does not 
 extend across my place to the Big river. It could not at that 
 
 point extend across because it would have to run up hill. I know 
 the Little river is lower at that point, and yet it runs into the Big 
 
816 
 
 THE STATE OF KANSAS VS. 
 
 river lower down. I struck levels there with crude instruments, 
 and the fall is greater toward the Little river than it is toward the 
 Big river, that is, taking it at the same angie, and the outlet for the 
 water on my place is to the Kissaway and the Little river. There 
 are little springs along west or northwest of the Little river where 
 the water comes out. I don’t know of any on the other side of the 
 Little river. 
 
 362 It has been nearly two years since I sunk the last well at 
 my place so that I could test it. I have sunk wells since. I 
 
 had to go nine feet for water. It was three feet deeper at that point 
 than during the earlier years. As to the current of the water in the 
 ground, I have found that the water in dug wells and other places 
 in clearing would clear from one side of the well, and it would soon 
 float off to the other side and the side it would clear from invari- 
 ably was the northwest towards the southeast. From this I became 
 convinced that this water was moving in the same direction with 
 the river. The water that is furnished to this underflow at 
 
 363 my place evidently comes from farther west and flows for 
 some distance under the ground and keeps the direction of 
 
 the river at that point. I would think it comes from as far west as 
 Colorado, some where up there. It comes from that direction. It 
 extends up that way. I couldn’t say just at what point it would leave 
 the river, and as to whether it took the underground rock after it 
 had been distributed on the soil for irrigation I am not prepared to 
 say, but wherever you find it it is moving parallel with the river. 
 The wells in which I have observed the rise and fall of the water 
 are about four miles from the river. I have never made any obser- 
 vations that would indicate how long it took the well to show the 
 rise after the river came up or how long it took it to go 
 
 364 down after the river had subsided. I know it doesn’t take 
 it a week at my place. I figure this water before it 
 
 365 reaches my well after leaving this river has to go probably 
 ten or twelve miles. If it came directly east it would 
 
 have to come about nine miles. It is my" judgment that it 
 gains access to the underflow west of me and then comes down 
 and flows in a direction nearly parallel to the river. As to the 
 limit of time in which this rise shows itself in my well, ! 
 
 366 should fix it at two or three days. In putting down wells I 
 always put my points down a good depth below into the 
 
 367 ground and have never been able to pump any of the wells 
 dry. I don’t think there has been any falling off in the aver- 
 age flow of the Little Arkansas river during the last 25 or 30 years, 
 and no narrowing of the channel. I don’t know which flooded 
 Wichita this year — the Big or the Little river. The narrowing of the 
 
 channel, at the bridge at Wichita has been artificial, for about 
 
 368 three hundred feet, by the filling in of land on each side of 
 the channel. The river of late years has not overflowed the 
 
 bottom lands in my vicinity as much as it used to. There is nqt 
 the volume of water coming down that used to by. any means, and 
 
JflK S4ATE OF COLORADO ET AL. 
 
 m 
 
 Consequently it has not been as liable for the last ten years as before 
 that to get up on the low bottom. If the same volume of water came 
 down we would be much more liable to be damaged, but the way 
 the water has come we would not be more liable. I have no objec- 
 tion to your holding back the flood waters in Colorado. If they just 
 keep that it will be all right. 
 
 It is something over three years since I have been taking an active 
 interest in this matter. I was a delegate from Harvey county 
 
 369 in 1901 to a meeting which was held to discuss this matter 
 here in Wichita. I was appointed on a committee to go to 
 
 Topeka and ask the legislature to give the appropriation. I went to 
 Topeka and succeeded in getting the appropriation. I can't say it 
 was because of my going, but anyhow the legislature made a small 
 appropriation to investigate this matter and probably to bring this 
 suit. 
 
 It has been probably twelve years since it was first brought to our 
 notice that the people of Colorado were appropriating and diverting 
 the waters of the Arkansas river. But the fact that our waters be- 
 gan to recede brought it to our minds and then the investigation was 
 the way we arrived at the fact that Colorado was the cause. I have 
 known of that fact ten or twelve years. It began about 
 
 370 twelve — well, ten years ago, probably. I didn’t make any 
 investigation in western Kansas to ascertain whether the under- 
 flow of the river was being taken up and diverted in ditches there. 
 I don’t know that they have ditches in western Kansas. I have 
 heard that there were companies that were intending to make 
 ditches for the express purpose of tapping the underflow. Just 
 hearsay, not to my knowledge. I did not commence any sort of 
 proceeding or suit at any time to stop or prevent the construction 
 of ditches either in Colorado or western Kansas, and so far as I know, 
 my neighbors did not. I have never made any investigation of the 
 the subject of wells sunk in western Kansas for the purpose of pump- 
 ing water to be used in, the irrigation of lands, nor in Colorado. 1 
 have heard that some wells were being so used in western Kansas, 
 
 and have read some reports from the State where the State 
 
 371 was using wells, but I don’t believe any of them were near 
 the river. I never made any protest against this. 
 
 The knowledge 1 have of the river and its few tributaries in this 
 State would lead me to believe that most of the flood water came 
 from Colorado. I have no actual knowledge as to the fact, nothing- 
 only I have seen the river when it was full within thirty or forty 
 miles of the State line, and the river seemed to be coming with as 
 much water up there as it did down here. This was at Lakin. 
 Probably it was over 40 miles. I have no knowledge as to how 
 much water that may cross the State line from Colorado into Kan- 
 sas is lost before it arrives at Burrton or Wichita. We often hear 
 of risings up as far as Dodge City and up there that are coming, 
 down. They diminish somewhat, always, of course, in coming 
 down, but it Takes several day s for the water to get down. 
 
318 
 
 372 
 
 StATE KANSAS VS. 
 
 I have no personal knowledge of a dam in the Little Ar- 
 kansas river, either within the limits of Wichita or immed- 
 iately adjoining the city, which was blown out for the purpose of 
 letting the flood waters in the Little river go down the channel. I 
 have heard them say in Wichita that they had blown the dam out 
 to let the — I have never seen the dam. I have seen where the water 
 was dammed from it. 
 
 Redirect examination. 
 
 By Mr. Ashbaugh : 
 
 When I spoke of one-half of the river disappearing I meant one- 
 half in cubic feet. 
 
 373 The experiment wells out in the west end of Kansas which 
 were dug by the State and its agency I think were not near 
 the river, but were put out on the high grounds to demonstrate at 
 what depth and what amount of water could begotten. These wells 
 were put down to test what advantage they would be for irrigation 
 and stock. 
 
 R. E. Lawrence, Wichita, Kansas. 
 
 Direct examination. 
 
 By Mr. Ashbaugh : 
 
 375 I have lived in or near the city of Wichita since May, 1870. 
 In May, 1870, I located my homestead one-half mile west of 
 
 the Douglas Avenue bridge. It is the property now used for the 
 Masonic home, [proved that land up in June, 1871, I think. It 
 is the northeast quarter of 30, 27-1, east. West Wichita was 
 
 376 not then laid out. The post office had been established in 
 Wichita a short time previous. Wichita then was a place of 
 
 probably a dozen houses, not more than that. I lived on the west 
 side of the river until 1886, and since then on the east side. In 
 those early years I crossed the river nearly every day, sometimes 
 two or three times a day. The post office is on the east side of the 
 river. I am acquainted with the Arkansas River valley pretty 
 
 377 well from Arkansas City to Hutchinson. Where the Ninnes- 
 cah river approaches the Arkansas river the valley extends 
 
 from one river to the other, and where a stream empties into the 
 river the valley widens out so that the valley will vary perhaps 
 from seven or eight miles to twenty miles wide. The character of 
 the land along the river is nearly all similar. It is a sandy loam 
 and very fertile. It is known as first or second bottom land, but 
 often you can hardly distinguish between them. The land slopes 
 gradually until you reach the bluffs outside of the valley. You can 
 distinguish when you get back to the bluffs. Back of the bluffs the 
 land is rolling and of a different soil and a different quality of sub- 
 soil. The valley a few miles below Wichita is about seven or eight 
 
imfi STATE Ofi COLORADO fit AI, 
 
 §10 
 
 miles wide. At Wichita from one bluff to the other it is 
 
 378 about seven or eight miles. Above Wichita the valley will 
 extend from Little river to the Big river and some distance 
 
 on each side, but as you get away from the Little River valley it will 
 narrow up again as you approach Hutchinson. The Little river 
 rises I think in McPherson and Rice counties. Cow creek is a con- 
 siderable stream and empties in near Hutchinson. Chisholm creek 
 empties into the Arkansas river just below Wichita a few miles, and 
 Cowskin about twelve or fourteen miles. The Ninnescah empties in 
 below that and the Walnut at Arkansas City. These are practically 
 all of the rivers that enter the Arkansas river that have a continu- 
 ous flow below the city of Sterling. The valley on an average from 
 Wichita to Hutchinson will vary from seven or eight miles to 
 twenty-five miles in width. It will perhaps average fifteen 
 
 379 miles. It is very productive land. 
 
 So far as this portion of the State of Kansas is concerned, 
 the first settlements were at Wichita. When I came here there 
 were not more than fifty white men here. There were man) In- 
 dians here at that time. The Osage Indians were here. The old 
 Santa Fe trail ran from Leavenworth to Santa Fe through this part 
 of the country and struck the river some where west of Valley Center. 
 The Chisholm cattle trail was laid out after I camped here. 
 
 380 It crossed the Arkasas river at Wichita and crossed my quarter 
 section of land across the river. It crossed the Arkansas river 
 
 just below the Douglas Avenue bridge which is shown in Complain- 
 ant’s Exhibit A-l. After Douglas avenue began to settle up they 
 moved this trail so that it crossed the river about two miles south of 
 Wichita. This trail went through Wichita up to Leavenworth. 
 
 When I came here we always had to ford the river, but during 
 the spring of 1870 there was a ferry established right near where the 
 Douglas Avenue bridge is now. That ferry was used during 
 
 381 the high water until the completion of the bridge, which was 
 built in the winter of 1871-2. That is the bridge shown in 
 
 Exhibit A-l. During the periods of low water we alwa} 7 s had to 
 ford it. From 1870 to 1872 we either crossed the river on a ferry or 
 forded it. There was then a good part of the year that we could not 
 ford it except on horseback and swimming. We frequently did that 
 but during the high water the water would be so high we couldn’t 
 ford it on a wagon. The water would come into the wagon. I 
 forded it many times during the first two years after I came here 
 when the water did not come into the wagon. My father and his 
 family came to Wichita in the fall of 1872. I remember very well 
 that they forded the river and that the water ran into the 
 
 382 wagon box. Duringthose years there would be two or three 
 months in a year we always had to ferry if we went over with 
 
 a wagon, and then occasionally during the other nine months of the 
 year the river would get so high that we would have to ferry, hut 1 
 don’t remember the time. This bridge was a toll bridge, and we 
 bad to pay fifty cents every time we crossed it. The river frequently 
 
§ 26 '- StAtE 6v EAksAS Vt$. 
 
 got so high that we were compelled to use the toll bridge and We 
 would go over the bridge with a load and then we would go back 
 through the river empty to save the toll. They always forded the 
 cattle across the river at the Texas trail, and they would swim 
 
 383 them over if the river was high. When the Douglas Avenue 
 bridge (Exhibit A-l) was built it was built 800 feet long. 
 
 When they started the bridge they were going to builf it a thousand 
 feet long, but they shortened up the east end and it was only built 
 eight hundred feet long. The bed of the river was that wide. The 
 lumber for the bridge I think was hauled from Emporia. This first 
 bridge was a wooden bridge, and theiron bridge was putin about 1879. 
 The river bed at Wichita was 'Considered rather a narrow place in 
 the river. It was wider almost all the way, perhaps, than it was at 
 Wichita. There was always more water in the river south of 
 Wichita than north because the Little river empties in there. 
 
 384 The Little river flows continuously. I never saw it dry. 
 During the first years I knew it the Arkansas river varied a 
 
 good deal, even in the dry months, as we called them. Sometimes 
 the water would get pretty low in the winter then, but it would 
 usually cover the axles of the wagon. I don’t know as I ever saw 
 it when it would not in some part of the river come up to the axles. 
 It is pretty difficult to give an average, because it was very much 
 deeper in some places than in others. If you go to the sand bars it 
 would be very shallow, but I would say it would average, if it was 
 spread out, probably a foot deep, and a thousand feet wide. There 
 was not near as much water above the mouth of the Little river as 
 there was below. During the first fifteen years that I knew the 
 river I should think the average flow above the mouth of the Little 
 river during the nine months, excluding the high water period was 
 perhaps eight or ten inches deep across the river, and as wide 
 
 385 as I have indicated. If some parts were very narrow other 
 parts would be correspondingly deep. Some years there would 
 
 be more water than others. Examining Exhibit A-l, I should not 
 think that it showed either high or low water; it was just about 
 medium. From the buildings on the west side I should say that 
 picture was taken possibly in 1874. I have seen thatpicture 
 
 386 in the Wichita directory for the year 1878. The water as 
 shown in Exhibit A-l, I should think was fully as much, 
 
 perhaps a little more, than it would average, excluding extremely 
 high water. Examining Exhibit A-3, I should think that the 
 water, as shown, was about the average or low water, perhaps a little 
 lower, because there is a little more of a sand bar there than there 
 is usually in the river. There are six courses of stone in the abut- 
 ment as shown in Exhibit A-3. That is a picture of the bridge 
 
 387 that is across the river now. During the flood of 1904 the 
 highest water, as I remember it, came up within about two 
 
 feet from the bridge ; perhaps a little more than that. The average 
 flow of the river during the last ten years, during the dry seasons of 
 the year, excluding May, June and July, was very much lower th am 
 
321 
 
 'i'i i 1C NT A I K < > K CO I O R A l H > HJ r A L. 
 
 it was formerly. I should judge there was not more than one-half 
 of the water during the dry seasons of the year — half as much in// 
 the river at one time as there was then. Of course it does not run 
 as fast. Idle river is just about half as wide as it was when 1 first 
 came here. It may have narrowed here at Wichita more than it 
 has above, but, I presume the river is about two-thi v ds as 
 
 388 wide as it was formerly from here to Hutchinson, and below 
 Wichita it is about the same. 
 
 I remember the fact that certain appropriations were made by 
 the Government to clean out the river. I don’t remember the year. 
 Possibly later than 1873. 1 have seen them dredging the river. I 
 
 think every Congress made appropriations for six or eight or ten 
 }^ears. The dredging was done between here and Arkansas City by 
 the Government. They would take their dredges and dig out the 
 channel of the river and remove trees or logs or stumps if there 
 
 were any, and try to get a channel in the river. In some places 
 
 they would put jetties in in order to deepen the channel. This con- 
 tinued 1 should think possibly ten years. It was for the pur- 
 
 389 pose of making the river navigable, and was so considered at 
 that time. I don’t remember under whose supervision the 
 
 work was done. There were some piles driven on the west side of 
 
 the river, but I don’t remember who drove them. Ackerman’s 
 
 island, in 1870, at low water, I should judge was possibly four or 
 five or six acres. In Exhibit A-3 I think I can see it under the 
 bridge. Examining Exhibit A-l I don’t see any traces at all 
 
 390 of Ackerman’s island. Ackerman’s island now has grown to 
 be, I should judge, forty or fifty acres. I think he claims 
 
 eighty acres. When the river is low Ackerman’s island is a great 
 deal larger than when it is high. When the river is low there 
 would possibly be 80 acres in it, and when the river is high possi- 
 bly not over 40 or 50 acres. I have been acquainted with the flow 
 of the Little Arkansas river for the last 34 years. Its flow is uniform 
 and has not decreased any I am sure. It may have increased 
 
 391 a little, but I think it has not very much. The supply of 
 water from the river is from surface water, fed by springs I 
 
 presume and the drainage and the local rains. I was here in July 
 and I think the most of the flood originated in the Little river, and 
 that it ail originated perhaps within a hundred miles from Wichita. 
 Both of the rivers were high. I think the Little river was higher 
 than the Big river. The Big river was not as high as it was in 1877. 
 There have been here two extreme floods — one in 1877 and one in 
 1904. There were two causes for the origin of the flood of 1877. 
 We had excessive rains and we had excessive high water from 
 
 392 the mountains in the Big river, and the two things came 
 together. In 1904 I think there was but very little extra 
 
 water came down from the mountains. In low water the water is 
 very unequally distributed over the bed of the river between 
 Wichita and Hutchinson. There will be a continual number of 
 sand bars, and shallow water, and in places deep water, but 
 ' 21—7 
 
322 
 
 THE STATE OF KANSAS VS. 
 
 usually there is a deep current somewhere in the river. It may be 
 one side part of the time and the other side part of the time. 
 The sides of the river, too, have filled up. It has narrowed up and 
 the bed has filled up with islands. There are more islands than 
 formerly. These islands consist of sand bars and some vegetation 
 and occasionally trees. There are some trees on the islands. The 
 outlet for excessive waters in the river below the mouth of the Little 
 Arkansas is not as good now as it was when I came here. It has 
 decreased one-third, and through Wichita the river is only about 
 one-half as wide as it was when I came here. Here in Wichita there 
 has been artificial filling up of the banks along the river at places. 
 This extended up and down the river about half or three- 
 
 393 quarters of a mile possibly, but does not extend above the 
 mouth of the Little river. The Little river flows into the Big 
 
 river between Second and Third streets in Wichita, which are the 
 second and third streets north of Douglas avenue, which runs east 
 and west. I suppose that some of that flood of 1904 could have 
 been forced across and through the city of Wichita by the fact of 
 the river having been narrower at Douglas avenue. I think if the 
 river had not been naanowed the water would have gone down a 
 little more rapidly than it did. There would have been a better 
 outlet. If the river had remained as it was when I knew it 
 
 394 first the flood could not have been bad, and in my judgment 
 it would have been a good deal less at any rate ; possibly not 
 
 any. You couldn’t tell. There would have been a better outlet 
 for it. The only way that 1 cau determine surely when the de- 
 crease in the flow of the river became manifest would be in regard to 
 the abutments of this bridge. I know we never saw the foundations 
 of those abutments until about the year 1890. I have seen them 
 since very often, and they can be seen today. I saw them today or 
 the day before. The foundation above the piling is six inches, and 
 I could see the piling about eight or ten inches, and the stone abut- 
 ments rested upon that foundation. The platform is upon the pil- 
 ing, and these pilings are out of the water now about six or eight 
 inches. When the foundation at that bridge was putin they drove 
 the piling down below low water mark at a very dry time; then 
 they built the dams around and sawed them off below low water 
 mark and put this platform on, so that I never saw that plat- 
 
 395 form or the top of that platform that the stone were built on 
 before the year 1890. When the old wooden bridge was 
 
 made there was not stone abutments under it; there were iron 
 tubes, and they were put down on this same platform to support the 
 wooden bridge. They were put on the same platform that these 
 stone abutments or piers were built on afterwards. 
 
 Just below the bridge within the last few years a great many car 
 and train loads of sand have been taken out. Sometimes a train 
 load will be pumped out within a day. 
 
 I am familiar with the crops raised through this valley. I was 
 familiar with them most of the time of my life until about the year 
 
THE STATE OF COLORADO ET AL. 
 
 323 
 
 1890. In the year 1870 we didn’t raise anything except sod corn ; 
 that was the first year it was cultivated here. This valley was 
 settled from Arkansas City to Hutchinson in 1870, 1871 and 1872, 
 and I suppose that the bottom lands were all taken during that 
 time. The bottom lands were taken first. The first land that was 
 taken around here was where the town site of Wichita is now. 
 
 396 I think that was in the winter of 1869 and 1870. The crops 
 we raised for the next few years after 1870 were mostly corn. 
 
 We did not raise much wheat until after the railroad came in here. 
 We could always get a corn crop. The rain of course would help 
 the corn, but the corn would do fairly well without very much rain 
 because of the moisture in the ground and the proximity of water to 
 the surface of the soil. On my homestead the distance to water 
 would depend upon the condition of the river. When the river was 
 up bank full I would not have to go more than three or four feet. 
 When the water in the river was practically as shown in Exhibit 
 A-l, on my homestead, I should think it would be four or five feet 
 to water. It would depend upon the locality of places on the 
 
 397 land; some places would be higher than others. I dug sur- 
 face wells over there. There was evidence of an underflow 
 
 there. Yes, there was an underflow under all that land. There . 
 was an underflow under all this land in the bottom of the Arkansas 
 river which I have described. 
 
 (Objection.) 
 
 The direction of the current of that underflow was parallel with the 
 river — south over there at my place. Since about 1890 I have had a 
 good deal of experience in digging cisterns and cellars and places 
 like that, and I know the underflow is a good deal deeper that it 
 was formerly ; that is, we have to go further to get the underflow by 
 several feet — probably four feet. When Wichita was built 
 
 398 and they began building business blocks they couldn’t put 
 cellars under the business houses. They would strike quick- 
 sand. They couldn’t dig cellars. Within the last ten or fifteen 
 years they have built cellars under the buildings. They can go 
 deeper now and still have a drier cellar than they could then. That 
 is true all over the city and the valley. 
 
 I was here in 1883 and knew Dr. McAdams at that time, and re- 
 member reading about the experiments he described on the witness 
 stand this morning. I didn’t see them, but I know they were made. 
 They were made for the purpose of locating water works. 
 
 The lessening of the underflow has injured the crops very 
 
 399 much. It caused the crops to dry up, when formerly there was 
 plenty of moisture. The valley is as productive now as it was 
 
 formerly when we get plenty of water. We don’t get as much water 
 now as we did then, but if we get plenty of rain we get good crops. 
 To make a crop certain we must have rain and must have it dis- 
 tributed through the season until the crops mature. 
 
324 
 
 THE STATE OF KANSAS VS. 
 
 Cross-examination. 
 
 By Mr. Rogers : 
 
 I came here in the year 1870. Emporia was our nearest railroad 
 then. That was the N. K. & T. The Santa Fe road had only built 
 about half way from Topeka to Emporia. At that time this portion 
 of the State was practically unsettled. The county of Sedgwick had 
 already been established. I can only estimate the population. 
 
 400 but I suppose there were five or six hundred people in the 
 count} 7 . I think there was very little land under cultivation. 
 
 The Indians were cultivating some land up north of Wichita, and 
 they had some of what we call old corn ground that year, but 
 aside from that I think all the land cultivated that year was sod 
 crops. Harvey county was a part of Sedgwick county then ; that is, 
 part of Harvey county was in Sedgwick. When I first came here I 
 would go up the river a few miles perhaps, probably ten or twelve 
 times a year, perhaps ten miles. We would go out on hunting 
 
 401 trips. There was no Hutchinson then; the town was not 
 built. I think the Santa Fe reached Emporia at some time 
 
 during the year 1870, and during 1870 and apart of 1871 we hauled 
 our freight here from Emporia, and in a portion of 1871 we hauled 
 it from Cottonwood Falls, and then from Florence and Newton. I 
 think the Santa Fe railroad reached Hutchinson during the year 
 1872. This country was all settled up before the railroad came 
 
 402 here. From the time I came here the country from here 
 westward began to settle up. Of course the bottom lands 
 
 would settle first, and they didn’t take up the uplands until 
 they had exhausted the bottom lands. As I remember it, 
 they begun to settle the uplands in 1873, perhaps some in 
 1872, but there was Government land on the uplands for probably 
 six or seven years after I h came here. I cannot say 
 
 403 when the uplands west of Hutchinson were settled. When I 
 came here I found a considerable body of water in the Arkan- 
 sas river. I did not find any lessening of the amount of water from 
 year to year up to 1880 ; it was just about the same in 1880 as it was 
 in 1870, or practically the same. I don’t think I noticed any lessen- 
 ing of the amount of water in the river from 1880 to 1890. I don’t 
 think I commenced to notice it until 1890 or a little after that. I 
 mean to say that the water of the river in 1890 or the years about 
 1890 was practically the same as in 1870 and the years immediately 
 following 1870. Whatever they may have done in the way of di- 
 verting water in Colorado prior to 1890, we didn’t notice it here. 
 They filled in about 200 feet at the Douglas Avenue bridge when 
 
 the first bridge was built; that was in the winter of 1871 and 
 
 404 1872, I think. They filled in 200 feet on the east end of the 
 bridge. They built an abutment out in order to save build- 
 ing 200 feet of bridge, and narrowed the river 200 feet at that time. 
 They took off another span of the bridge, 100 feet, I should judge 
 
 n 1884 or 1885. I can’t give the exact year. They narrowed up 
 
THE STATE OF COLORADO ICT AL. 
 
 325 
 
 the river 200 feet when they first built the bridge, and then 
 405 they narrowed it up again another 100 feet. They next took 
 off a span at the west end, I should judge it was about in 
 1887 or 1888. That was about the time we had the boom here. 
 They took off one span, 100 feet, so that up to 1887 they narrowed 
 the river 400 feet. Some time after that, several years, they took off 
 another span on the east end. That must have been about 1890 or 
 1892 I should judge. That was 100 feet. Then they had taken out 
 one-half of the river. At the time the last encroachment took place 
 we thought the volume of the water in the river was less than it had 
 been in the earlier years, and we began to think that we could en- 
 croach on the river a little. A good many of us have been very 
 doubtful about this encroaching on the river, and a great many 
 people want something done to get the channel where it should be. 
 
 The time the Government undertook to provide a channel and to 
 deepen the channel for the purposes of navigation I should think 
 was from 1872 or 1873 up to as late as 1880 perhaps. I don’t 
 
 407 exactly remember the dates. They deepened the channel 
 below the Douglas Avenue bridge, between here and Arkansas 
 
 City. I think the effect was to make the water a little higher and 
 a little deeper. It would naturally make it higher if the channel 
 was narrowed up ; it would have a tendency to raise the water. 
 They simply lowered the channel of the stream bv dredging. If 
 the channel was simply deepened it would narrow the water and I 
 think it would lower it. The effect of this constant narrowing of 
 the river with the same quantity of water would make the channel 
 a little deeper and raise the surface a little. It would scour 
 
 408 the river with the same amount of water. I would think that 
 would raise the water level a little. I think it would only 
 
 have this effect in high water ; I don’t think it would raise it in 
 low water. 
 
 Below the Douglas Avenue bridge there has been a crude sand 
 pump for a number of years — probably four or five years; but they 
 have improved it and the one there now is a better one than they 
 had at first. There are two or three there now — I think three. I 
 don’t think these sand pumps are deepening the river bed. I 
 
 409 think it fills up with sand about as fast as they take it out. 
 I presume some days they take out possibly ten or twelve 
 carloads. They move the sand pumps up and down the river 
 
 410 for a distance of half a mile. I think there was very little 
 difference in the volume of water between 1870 and 1880 as 
 
 compared with the volume between 1880 and 1890, in the winter. 
 The winter flow continued about the same from 1870 to 1890. Of 
 course some winters there would be more water than others, but it 
 didn’t vary very much. There was not so very much difference in 
 the winter between 1890 and 1898 as compared with the former 
 years. There was some difference I think. It was some less, I think. 
 Where I noticed the river it was always below the mouth of the 
 Little river. We could tell which water came from each river be- 
 
326 
 
 THE STATE OF KANSAS VS. 
 
 cause there was a very perceptible difference in the color of 
 
 411 the water. In the winter months there would be some 
 water from both rivers, but I think there would be more 
 
 water from the Little river in the winter than from the Big river. I 
 think there was quite a little less water in the Big river above the 
 junction at the Seneca Street bridge after 1890 to 1892 or 1893 than 
 there was before that time. The reason I stop at 1892 or 1893 
 
 412 is because it began to grow less. We didn’t notice it very 
 much until 1892 or 1893. It continued to diminish up to 
 
 1898. During the winter period there would not be so very much 
 difference. In my judgment the diminution between 1890 and 3898 
 as compared with the former flow during the winter period would 
 be ten to twenty per cent. less. I don’t remember the condition of 
 the river particularly in 1893. The Big river has been practically 
 dry every year above the Thirteenth Street bridge across the Big 
 river at some time during the fall and winter. I don’t think the 
 river was dry in 1874. There was probably standing water. There 
 was very little running water perhaps. I never saw the river 
 
 413 dry before the year 1890 above the Little river. In 1874 it 
 was practically dry from here as far as Dodge City. I am 
 
 speaking by reports; I don’t know it from my own knowledge; but 
 that was the general understanding. Prior to 1890 I have 
 
 414 seen years that I could cross the river with rubber boots. 
 This occurred very seldom. I remember the year 1893; it 
 
 was an exceedingly dry year; and I think the next year was a very 
 wet year, when it was practically full the whole summer. 
 
 In the earlier years we didn’t notice so much about the 
 
 415 rain then as we have since. We would get a crop whether it 
 rained or not. I couldn’t give the years, but I know there 
 
 was probably one-third of the time that the crops would be very 
 short on the. upland between 1870 and 1880. From 1890 to 1900 I 
 think the corn crops in this county on the upland generally have 
 improved. They have improved on the upland during the years 
 from 1890 to 1900, as compared with the years from 1870 to 1880. 
 I ascribe that principally to cultivation. The crops are better. The 
 same would be true as to the bottom lands. 
 
 416 I first went through the State of Colorado in 1887, I think, 
 going to California. I just went through the State; I didn’t 
 
 stop there. I have studied the irrigation methods of Colorado some- 
 what. I was out there three years ago and spent the summer up 
 about Boulder and Greeley and Denver and studied it somewhat 
 then. That was my first knowledge of irrigation. 
 
 417 I am quite an advocate of deep cultivation, and intensive 
 cultivation too. Under proper cultivation the bottom lands 
 
 will produce just as much as they ever produced if they get as much 
 water. With the amount of rainfall we have and proper cultivation 
 they will not begin to produce as much as they formerly produced. 
 
 We call this sheet or ground water the underflow. We 
 
 418 know that the water does flow under the soil here, under the 
 surface. The fall of the river here is about four feet to the 
 
THE STATE OF COLORADO ET AL. 
 
 327 
 
 mile. The rule is that you have got to go to the surface of the river 
 before you strike water, all over this valley. I am of the opinion 
 that there is a sheet of water underlying all of this valley and that 
 that sheet water moves forward. As to whether this movement 
 forward is not simply a movement corresponding with the fall of the 
 land, I will sa}^ that whenever the land falls correspondingly 
 
 419 with the river, it does. If you take miles in extent the bot- 
 ton land adjoining the river falls as the river falls, down toward 
 
 the sea, but there will be places where it will be higher, but taking it 
 in general now for ten miles, I suppose the fall of the land will be about 
 the same as the fall of the river, just about. The land is really higher 
 along the river than farther back, generally. I think I said in my di- 
 rect examination that the fall in the depth of the water of the river, 
 during the months to which my attention was called, in late years 
 as compared to the earlier years, is about four feet at the 
 
 420 Douglas Avenue bridge. I have noticed it up, as I said, 
 about the Thirteenth Street bridge, about two miles up the 
 
 river. It is pretty hard to determine the fall and depth there. I 
 know the water used to be from one to two feet deep, and now there 
 isn’t any. At times it falls below the bottom of the river, nearly 
 every year, during times in the year. Of course the upper layer of 
 sand in the river bottom would be dry. You could get water 
 
 421 by digging for it. I don’t know how far you would go down ; 
 I never tried it. I presume you would have to dig one or 
 
 two feet even in the bed of the river "to get water at times, and when 
 the river gets in that very low condition, the surrounding country, 
 of course, is drained until the water level corresponds with the level 
 in the river. The country fills up again when the river fills by the 
 water rising above here. Of course it seeps out through the 
 
 422 sand. It comes from the river. I should think it would 
 run out laterally from the river into the adjoining lands, 
 
 until they get filled up; then it would run parallel with the 
 river. 
 
 (The witness explains at this point that the two hundred feet that 
 was filled in when the first bridge was built, near the Douglas 
 Avenue bridge, was not filled in by the city but by private indi- 
 viduals and corporations.) 
 
 424 The citizeus of this vicinity generally have taken an in- 
 terest in the question as to whether Colorado was responsible 
 
 for the decrease in the flow of the river. I have been interested in 
 the same way but have not been present at any meetings at which 
 the subject was discussed. It has been generally discussed in the 
 public press. 
 
 The narrowing up of the river as it has taken place at the Douglas 
 Avenue bridge was used as an excuse by the people that wanted to 
 narrow up the river and make land along the bank of the 
 
 425 river. They said the river was getting smaller and they 
 didn’t need so much room for the river to flow and conse- 
 quently they would fill in along the bank. This 200 feet was filled 
 
328 
 
 THH3 STATIC OF KANSAS VS. 
 
 in at this enrl before the bridge was built or as an approach to 
 the bridge at the time of building the bridge. At the time 
 the first bridge was commenced the width of the river was 
 about one thousand feet. The bridge as constructed was eight 
 hundred feet long. At times the river would flow the full 
 width of the river, a thousand feet. That was only during 
 periods of high water. During the ordinary periods, that is, 
 outside of May, June and July, the bridge as then constructed 
 was as long as the flow of the river at that point was wide. 
 
 426 There was water practically all of the distance under the 
 bridge. There might have been sand bars in the river occa- 
 sionally when the water was very low, but with the average flow of 
 water it covered the river bed under the bridge. Following the 
 construction of the bridge I often observed outside of the months of 
 May, June and July, that there were sand bars in the river and 
 that the current of the river shifted from one side to the other. We 
 
 could notice the changes in the current pretty well by ford- 
 
 427 ing. The water was sandy and muddy and you couldn’t see 
 the bottom. As I recollect it now the first span must have 
 
 been taken out of the bridge some where between 1888 and 1890. 
 I hadn’t thought of that yesterday. The first span, I think, was 
 taken out about 1887. It was taken out because the river had been 
 filled in the length of that span. The level of the river remained 
 about the same after the span was taken out. It might have 
 
 428 been higher in times of exceedingly high water ; ordinarily 
 it didn’t make any difference. The water way at that point 
 
 was then about seven hundred feet. The next hundred feet I think 
 was taken out in 1889, probably a little later than that. The taking- 
 out of the first and second spans I should say was three or four 
 years apart. After the second span was taken out the water way 
 was six hundred feet in width. After that I didn’t notice any ap- 
 preciable increase in the height of the ordinary flow of the water. 
 The third span I think was taken out in 1899 or 1900 — pos- 
 
 429 sibly in 1898. This left the water-way five hundred feet 
 wide. I couldn’t say that there was any appreciable increase 
 
 in the height of the water except dm ing the high water. 
 
 I think the agitation concerning the taking out of water in Colo- 
 rado commenced about 1894. Before that time I don’t think it had 
 been noticed very generally, at least I hadn’t thought very much 
 about it. 
 
 430 I was crossing the bridge every few days at least and there 
 was nothing to suggest any decrease in the flow, so far as my 
 
 observation went, not up to ten or twelve years ago, perhaps. I 
 think that, leaving out of consideration the removal of the third 
 span, all former encroachments upon the river were made without 
 any reference whatever to any claim or belief that the water in the 
 river had diminished during the ordinary season, although there 
 were ejections by a great many people to the filling in of the bank 
 
THE STATE OF COLORADO ET AL. 
 
 329 
 
 of the river and taking off spans of the bridge. That objection had 
 no reference to the ordinary flow. 
 
 432 I never heard any other theory advanced as to the cause 
 only that the water was being taken out. I don’t recollect of 
 
 any investigation as having been made of the country lying between 
 here and Colorado to determine whether there are any local reasons 
 peculiar to Kansas bringing about this condition. The cause of the 
 complaint was the fall in the level of the water under the bottom 
 lands along the river. I don’t think they would have cared any- 
 thing about the river if they had had the water under the land. 
 We always felt that when the river was bank full it really 
 
 433 did make or cause more moisture in some way. What I meant 
 to say was, we didn’t care anything whether the river was 
 
 navigable or whether there was a lot of water in it or not, particu- 
 larly, only as it brought moisture in the land. 
 
 A great many have the theory that the water in the river had an 
 influence on this locality. Formerly when the river was bank 
 
 434 full through the season we would frequently have showers 
 and sometimes heav} 7 showers along the river in the valley 
 
 and they wouldn’t have any on the upland. We don’t notice that 
 difference now as much as we did then. I have not examined the 
 Government records as to rainfall to satisfy myself as to the correct- 
 ness of that theory. It was mere observation. 
 
 As to the commencement of the underground flow of water I never 
 understood that it commenced just at the Kansas State line. 
 
 435 It commenced, as we always understood, wherever there was 
 a sand formation under the land, on both sides of the river. 
 
 The theory here is that it extends up pretty well through the State. 
 The theory is that the lands in this vicinity are supplied from the 
 underflow as it comes from the country farther north and 
 
 436 west. It comes from the river. I presume it comes laterally 
 at this point. Mv idea is that the underflow extends west- 
 ward probably two hundred or two hundred and fifty miles and 
 in width from eight to twenty-five miles.. I think the water 
 flows under the land the same as it does in the river, only not 
 so fast. I have never heard of any investigations to ascertain 
 
 the rate of flow of this so-called underground channel 
 
 437 until Dr. McAdams gave his testimony yesterday. I had no 
 idea of it myself, only I know the flow is not very rapid, be- 
 cause I have noticed in an open well I had that the trash and sedi- 
 ment would clear from the north side towards the south, but I 
 couldn’t tell how fast the flow was. There is very little drainage 
 into the river from the bottom lands at this point. Along the river 
 usually the land is higher than it is back a distance. I think that 
 when the river goes down this water which underlies the adjoining 
 
 country will then set towards the river. That would be my 
 
 438 theory, but I have never made any experiments to find out, 
 and 1 don’t know of anybody who has made experiments. I 
 
 439 know it goes down to the river. It would be my theory that 
 as the river goes down the whole blanket of water along 
 
330 
 
 THE STATE OF KANSAS VS. 
 
 the entire course of the river changes and runs in the direction of 
 the river, and it is my theory that the reverse would be true, that 
 the filling in of that sheet of water is produced by the water 
 
 441 turning off along the entire length of the river and running 
 in there. I can’t inform you as to any one, either a citizen or 
 
 a person of supposed scientific skill, who has made any investiga- 
 tions of the phenomena connected with this underflow. 
 
 442 I cannot say that taking the water out of the river or les- 
 sening the elevation of the underlying sheet of water has 
 
 443 affected the public health. I can’t see that it has made any 
 difference. 
 
 When I came to this country there was no timber except along 
 the river. There were places where there were groves along the 
 river and little bunches of timber, but not very much. That con- 
 dition prevailed from here to the Colorado State line. On the ad- 
 joining hills there was prairie grass. This on the uplands in some 
 places where it had its full growth would be pretty nearly knee high 
 and from that down. It was good grass and a good growth of grass 
 all over the uplands. 
 
 I thin k they commenced to dig wells on the upland about 1871 
 and 1872. The depth at which they would find the water would 
 vary considerably, from thirty to forty' and sometimes fifty feet, and 
 there are places where they' have had to go more than that. 
 
 444 I don’t think they have to go deeper for water on the uplands 
 now than they did then. I think there is more water on the 
 
 uplands now than there was in 1870 or 1875 and along there. I 
 think the streams are running more than they' were then. I think 
 that wherever water can be found on the uplands, the level has risen 
 and that the wells have more water in them than they' had in the 
 early' day's. That would be mv judgment. 
 
 From the time I came here to the present time this whole coun- 
 try', bottom lands and uplands alike, has been gradually settled up, 
 and from year to year more land has been cultivated. That I pre- 
 sume was true for twenty or twenty-five years, but the last ten years 
 I don’t know that it has increased very much. I think it was about 
 all settled up ten or twelve years ago. 
 
 445 The trees grew without setting out. As soon as the prairie 
 fires were stopped trees began to grow in all the low places 
 
 and in the sloughs and branches, and wherever there was a little 
 moist ground the cottonwoods would start up, and that is in part 
 the reason why the timber has grown along the edge of the Arkan- 
 sas river. In the former times they didn’t grow there because the 
 whole country was swept by fires. There is enough moisture to raise 
 grass on the uplands. It wouldn’t make as good hay as the bottom, 
 but some years it would make pretty good hay. It depends 
 
 446 upon the rainfall. On the average I should think we did get 
 pretty good hay crops, probably a ton to the acre. 
 
 I have never heard the theory advanced that the settlement of 
 the country westward on the water-shed of the Arkansas river, the 
 
THE STATE OF COLORADO ET AL. 
 
 331 
 
 cultivation of the lands and the growing of trees might have had 
 some influence on 1 1 1 e decreased flow of the water in the river in the 
 months of August, September and later on, in this vicinity. That 
 theory don’t dtrike me as at all plausible. 
 
 447 My idea is that the yield of corn out of the valley in this 
 county is increasing ; that is, the yield per acre. Not the 
 
 449 amount, but the yield. I think that has been brought about 
 by intensive cultivation, and I think we do have more rain- 
 
 450 fall on the upland than we did formerly. It seems to me so. 
 
 As to the selling price of lands, this is owing a great deal 
 to the improvements on the land and the location of the land. Farms 
 near Wichita have been sold as high as a hundred dollars an acre. 
 They were sold this year. I remember one or two farms up between 
 the rivers that sold last spring for one hundred dollars an acre; 
 but generally where they are a little farther back from town, 
 
 451 and with fair improvements, bottom lands are worth at least 
 fifty dollars an acre, with good, fair improvements. I expect 
 
 it would be pretty difficult to buy a bottom farm within ten or fif- 
 teen miles of Wichita at less than fifty dollars an acre, with good, 
 fair improvements. I think lands are rather advancing in value. 
 That is true of all land. There is not so much difference in selling 
 price between the bottom lands and the uplands since the flood of 
 this year. In places they are not quite as desirable until they get 
 over the effects of this high water. I should say that a bottom farm 
 equally well located and with equal improvements would sell 
 
 452 for twenty-five per cent, more than the uplands. I bought a 
 farm of bottom land this summer about five miles north of 
 
 here. The Government surveys showed that on that land of one 
 hundred and twenty-five acres there was about twenty-five acres of 
 made land. I paid one hundred dollars for the land by the 
 
 453 Government survey and the other land was thrown in. Where 
 land has been made by the river I don’t think as a usual 
 
 thing it has eaten away land at some other place. I don’t know of 
 any place where the river banks have washed away to any extent. 
 The extreme width of the river as I found it when I came here was 
 the width of the river which was required in flood periods. It 
 would be bank full in flood periods and during the ordinary flow of 
 the river there were a good deal of sand bars. 
 
 Redirect examination. 
 
 454 By Mr. Ashbaugh : 
 
 The sand bars I just spoke of are every year very many more and 
 larger, hi examining Exhibit A-l, the land that was filled injwas 
 simply the approach to the bridge. We didn’t consider the land 
 worth anything then. In Exhibit A-l, where the man is shown 
 standing was the eastern end of the ford. The first span, as 
 
 455 I recall it this morning, was taken out about 1888 or 1889. 
 The second span was taken about two or three years later, and 
 
332 
 
 THE STATE OF KANSAS VS. 
 
 the third span about 1899 or 1900. The filling up of the river at 
 the Douglas Avenue bridge had nothing to do with the lowering of 
 the water in the Arkansas river above the mouth of the Little 
 river. 
 
 457 It is no theory about the underflow at all, and my theory 
 was applied to the direction that this water would flow in 
 
 458 going from the river under the land during high water. Some- 
 times when I would go over from town to my place I would 
 
 notice that the river would be full, and would notice that there was 
 
 no rise perceptible in my open well, but perhaps the next morning 
 the well would be full or pretty nearly full. I couldn’t tell the ex- 
 act time, but from night until morning the water would get into 
 that well. 
 
 The water-works system at Wichita is a very large one. 
 
 459 When I spoke of this being a timbered country I think I 
 said this county. 
 
 460 The land is not as valuable as it would be if the underflow 
 was as it was during the first fifteen years that I knew this 
 
 country. One reason why land has risen here during the last few 
 years is on account of better improvements ; another is that the 
 markets are better and nearer. We have good shipping facilities, 
 packing houses, manufactories, mills and railroads, and the 
 
 461 increase of population has taken away our products. This 
 rise in the price of land has been in spite of its productive- 
 ness, for it certainly is not as productive as it was fifteen years ago, 
 and is not as valuable, considering productiveness alone. 
 
 There have been several openings of territory south of us. The 
 largest opening near Kansas was the Cherokee outlet, in 1893. It 
 put a great deal more land on the market, and in another way, it 
 took away the chance of anybody getting any more land. I 
 
 462 think the opening in Oklahoma and Texas, and the cultiva- 
 tion of lands in both of those States, has affected Kansas con- 
 siderably. We don’t have as much hot winds as we did before this 
 was opened. Before this was opened for settlement it was all a 
 grazing country and along in the summer there would be continual 
 prairie fires down there.. The country would burn over in August 
 and September and sometimes before that, and of course the prevail- 
 ing winds in this locality are from the south and southwest, and the 
 settling up of these countries and the raising of vegetation and the 
 
 disappearance of prairie fires has had quite an effect upon 
 
 463 the climate in this part of Kansas. That is my judgment. 
 There is more moisture and not as much hot and dry winds 
 
 as formerly, and I think this would affect the timber and the rain- 
 fall somewhat. Since this opening the rainfall seems to be more 
 uniform than it was before. 
 
 (Objection.) 
 
 During the early years the showers were liable to come 
 
 464 from almost any direction, but now they are more uniform. 
 
Tills STATE OF COLORADO ET AL. 
 
 333 
 
 I think this opening of the lands lias had something to do 
 
 465 with the increased rainfall through the valley. Just west of 
 Wichita the water drains more to the slough than to the 
 
 river. The slough flows parallel with the river, and I should judge 
 about three or four miles from it, and is about twenty-five or thirty 
 miles long. There was a flat boat built here and loaded with wheat 
 and taken down the river, I think clear to New Orleans. It might 
 have been about 1880. I know of a good many boats being built 
 to go down the river for pleasure and fishing trips, but that 
 
 466 is tlie only boat I ever knew that was loaded with merchan- 
 dise. Well, I know of some Government boats were used for 
 moving from place to place as they did formerly. I remem- 
 
 467 ber there was a boat started from here with steam power, and 
 it had a whistle in it. 
 
 (Objection.) 
 
 468 Recross-examination. 
 
 By Mr. Rogers : 
 
 I don’t think that boat loaded with wheat ever got back. I 
 haven’t heard that whistle since, nor any, in the last twelve or fif- 
 teen years. I don’t know of any large boats that came back. Of 
 course small boats would row back. They only furnished transporta- 
 tion one way. 
 
 We had the boom here about 1886, 1887 and 1888. 
 
 469 I don’tsay that the Arkansas river at this point is a navigable 
 stream for commercial purposes. I don’t think it was ever 
 
 470 practicable to navigate the river at this point. We did hope 
 at one time that by dredging the river that possibly it might 
 
 be in certain seasons of the year, as far as Wichita. It was dredged 
 by the Government, but no navigation took place after that. The 
 dredging boat itself came up, and that was all. With all our efforts 
 we didn’t get navigation; we didn’t have water enough. At the 
 time we tried to make it navigable down through the country there 
 were no railroads through Wichita. We had to go by wagons en- 
 tirely and we thought we might get some improvement over wagon 
 hauling. At that time it would have been of real value to navigate 
 the river. Before the Government got through with dredging it 
 out the water was gone. 
 
 Mr. Ashbaugh, at this point, on behalf of the complainant, offered 
 in evidence so much of chapter 1 81 of the third session of the 
 
 471 Forty-fifth Congress of the bill approved March 3, 1879, found 
 on page 366 of the 20th volume of the United States Statutes 
 
 at Large as reads as follows : 
 
 “ For improvement of Arkansas river between Fort Smith, Ar- 
 kansas, and Wichita, Kansas, $20,000.” 
 
 (Objection.) 
 
334 
 
 THE STATE OF KANSAS VS. 
 
 Mr. Ashbaugh for the complainant further offered in evidence so 
 much of chapter 2ll, section 2, 46th Congress, approved June 14, 
 1880 (21 U. S. Stat. 187) as reads as follows: 
 
 “ Improvement of Arkansas river between Forth Smith, Arkansas, 
 and Wichita, Kansas, continuing improvement, $15,000.” 
 
 (Objection.) 
 
 Mr. Ashbaugh for the complainant further offered in evidence so 
 much of chapter 136, third session, Forty-sixth Congress, approved 
 March 3, 1881 (21 U. S. Stat. 477) as reads as follows : 
 
 “ Improving Arkansas river between Fort Smith, Arkansas, and 
 Wichita, Kansas, $24,000.” 
 
 (Objection.) 
 
 Mr. Ashbaugh for the complainant further offered in evi- 
 
 472 dence so much of chapter 375, first session Forty-seventh Con- 
 gress, approved March 2nd, 1882 (22 U. S. Stat. 205) as reads 
 
 as follows: 
 
 “Improving Arkansas river, $35,000.” 
 
 (Objection.) 
 
 Mr. Ashbaugh, for the complainant further offered in evidence 
 chapter 97 of the Laws of Kansas, 1864, being an act entitled “An 
 act declaring the Kansas, Republican, Smoky Hill, Solomon and 
 Blue rivers not navigable and authorizing the bridging of the same.” 
 
 Mr. Ashbaugh for the complainant further offered in evidence 
 chapter 79 of the Laws of Kansas, 1864, entitled “An act to accept 
 a grant of lands made to the State of Kansas by the Congress of the 
 United States to aid in the construction of certain railroads and 
 telegraphs in said State, and to apply the same to the construction 
 of said roads and telegraphs.” 
 
 473 Complainant’s Exhibit A-5 was here offered in evidence. 
 (Objection.) 
 
 473 B. H. Campbell, Wichita, Kansas. 
 
 Direct examination. 
 
 By Mr. Ashbaugh: 
 
 I have lived in Sedgwick county continuously since 1878. I 
 went to Hutchinson in 1877 and came to Wichita in 1878, 
 
 474 and have lived ever since at Riverside park near the Arkan- 
 sas river and between the Little river and the Big Arkansas 
 
 river, about a mile above the junction of these rivers. I am 76 
 years old and was in the cattle business for a good many years 
 before I came here and have been in that business ever since 
 coming here. It covers all my western experience. My business is 
 ranching, and breeding and growing cattle. I bought a farm about 
 
THE STATIC OF COLORADO ET AL 
 
 335 
 
 three miles above Wichita on the banks of the Arkansas 
 
 475 river. Sometimes I had a very large number of caitle and 
 sometimes very few. I was interested in the Capital Syndi- 
 cate ranch that built the State house at Austin, Texas. I have 
 owned from four to seven thousand head of cattle at one time. I 
 have about two thousand now. I own a ranch in Clark and Meade 
 counties. My farm above Wichita consists of four hundred and 
 eighty acres, and the Arkansas river bounds it on the west for about 
 
 a mile. It is between the Arkansas and the Little Arkansas 
 
 476 rivers, which are about a mile and a half apart at that place. 
 I have handled cattle up and down the Arkansas river in 
 
 the valley more or less for years and have been familiar with the 
 Arkansas river and its flow for twenty-six years. My farm has 
 furnished feeding yards for my cattle and I bought corn up and 
 down the river. By the valley 1 mean the country between the 
 foot hills or high lands, and I should say the valley was 
 
 477 about from eight to twenty miles wide. The soil in the 
 valley is a dark, sandy loam. As to fertility I consider it 
 
 more than an average of this western country and as good as the 
 land in Illinois, Indiana or Ohio, on their rivers. The first level 
 land along the bank of the river we call the first bottoms, and 
 then there is a shoulder or bench rising to a higher table and we 
 call that the second bottom. The first and second bottoms 
 
 478 we call the valley. The lands back of the valley are known 
 as uplands. The Arkansas valley is devoted more to raising 
 
 corn than anything else. Wheat is the next staple, then comes oats, 
 rye, barley, millet, cane and kaffir corn. It is a vegetable raising 
 country also. Gardens are of average fertility and productiveness. 
 All up and down the valley the country is good for vegetables, but 
 we bring our potatoes a good deal from Colorado because we get a 
 better article. 
 
 In a general way I have been familiar with the flow of the 
 
 479 river since I have lived in this country. It is conjectural 
 somewhat, for I did not measure it, but I have forded and 
 
 crossed the river several times and driven herds of cattle across it 
 and I should say that the average flow of the river during the dry 
 season, excluding two or three months when there was a flood, has 
 been from two to five feet lower during the last ten or twelve years 
 than during the first fifteen years that I knew it. It varies a good 
 deal in width, but I should say it was from eight hundred to twelve 
 hundred feet wide. I should say six hundred feet would be a very 
 narrow place in the river. In the latter years the waters have re- 
 ceded and the grass and trees have grown and narrowed the width 
 of the bottom, and islands have increased in number and size in the 
 river. The banks have narrowed I should think one-half since 
 1890. Islands are far more numerous. Sand bars would form and 
 then of course the grasses would grow until they became islands. 
 There are a great many now that did not exist twenty years ago, 
 
336 
 
 THU STATIC OF KANSAS VS. 
 
 and many that did exist are much larger now. It grew upon 
 
 480 us that we were losing our river, I think about 1800. Dur- 
 ing the last ten years there has been no average flow of the 
 
 river above the confluence of the two rivers to my knowledge. We 
 often have long stretches when it is entirely dry, so that you could 
 walk with slippers across it and not wet your feet. Just west of my 
 house where I live now, last summer and the summer before last it 
 was entirely dry; there was not a drop of water there. That is 
 about half or three-quarters of a mile above the junction of the two 
 rivers. There is no practical flow of water any longer in the dry 
 time. The river didn’t dry up suddenly by any means, but it finally 
 disappeared, and we have had no river. I think the pro- 
 
 481 ductiveness of the soil, of the first and second bottom lands 
 has been very much impaired. The lessening of production 
 
 is by want of humidity. Before that time we have believed that we 
 had sub-irrigation. We raised big crops. It was a conviction 
 gathered from years of experience. We got bigger crops than they 
 did where they didn’t have what we believed to be an underflow or 
 sub-irrigation from that river. 
 
 (Objection). 
 
 This belief was based entirely upon observation and experience, 
 not hearsay, — observation of the decrease in the productiveness of 
 the land. This decrease I should say amounted to 33 per cent, say 
 one-third, of the yield of corn. I have observed that more particu- 
 larly. I had more interest in it. I don’t think we get as much 
 corn now as we did fifteen years ago by from thirty to thirty-five 
 per cent., something like that. We seldom had a, failure of 
 
 482 crops in the first years, and have had many since. We didn’t 
 depend upon the precipitation of water; we got it from the 
 
 roots, we thought. We based the value of our lands upon it. The 
 sub-irrigation was stronger nearer the river when the river carried 
 its normal flow of water, and weakened as it went back. I should 
 say its influence was ten miles on either side, and practically the 
 whole valley was under the influence of that sub-irrigation. I 
 think the underflow has gone entirely. The river being dry, 
 
 483 the conditions don’t exist that did exist. I don’t know how 
 far it has gone ; it has gone. I don’t think it gets back into 
 
 the river after our neighbors in Colorado use it. I meant to speak 
 of them kindly. I don’t think that the change has affected wheat. 
 Our wheat doesn’t require rainfall at the same time our corn does. 
 I suppose it has affected the raising of wheat in the valley, but to 
 what extent I couldn’t give an opinion, as I have on the other. A 
 good crop of corn in the early days was seventy-five bushels to the 
 acre, sixty bushels commonly. I should say forty bushels is 
 
 484 as good a yield now as sixt}' bushels was twenty years 
 ago. 
 
 485 Lands are more valuable now than in the early years, but 
 they certainly produced more then than they do now. The 
 
IMe STATE OE COLORADO ET At. 
 
 33? 
 
 cultivation in the early days was not as good as now. We have im- 
 proved in means of cultivation a good deal ; we have better imple- 
 ments and more intelligent and educated fanning during these last 
 years. Land is higher in price now because of the general pros- 
 perity of the country, the general advancement in values, 
 
 486 facilities for transportation, the scarcity of the public domain, 
 which is becoming exhausted and lands becoming scarce, the 
 
 demand increasing and the supply decreasing. All that has con- 
 tributed to the enhancement of farm lands. The proximity of 
 markets to these lands is a part of the growth of the country, and 
 the railroad facilities for carrying products. The proximity of the 
 market has been very noticeable. We have had good markets and 
 we have had good railroad facilities that carry our products to the 
 markets for consumption. These markets and railroad facilities are 
 all about us, all up and down the valley, all over the country. In 
 later years they have increased very much. Cities near here are 
 points of consumption to some extent. We consume quite a good 
 deal here with our factories and packing houses and other institu- 
 tions. That applies more to the vegetable market than anything 
 else, because the excess always goes away and that makes the mar- 
 ket. It is facilities for carrying it away that has really 
 
 487 brought the increased value of lands — and the markets. The 
 price of lands has not been enhanced by the fact that the 
 
 river has gone dry; the reverse is true; it depreciated the value of 
 the land per se. The less productive the less value, of course. 
 
 488 Cross-examination. 
 
 By Mr. Hayt : 
 
 I located here about 26 years ago. I came to Hutchinson in 
 1877. The farm I have in Sedgwick county is about three and a 
 half miles from Wichita. The town water works are a mile and a 
 half below my house, south. They are very ample for the use of 
 the town. They go down into the earth for their water. I don’t 
 think they take it from the river; they take it from an island 
 
 489 in the river. When I first came here the country about here 
 was pretty well cultivated. There was very little grazing. The 
 
 grazing had gone onto cheaper lands west, and they were fanning 
 this part of the country pretty extensively then, but there has been 
 an increase, somewhat. I think the farther you go up the river it 
 was less settled — less populated — and a less proportion of cultivated 
 land at that time than now. I should think there has been a con- 
 stant influx of farmers along the Arkansas valley from 1878 up to 
 the present time, and more and more land brought under cultivation. 
 There were not so many trees in the early days, particularly along 
 the water courses. Many had been cut off, but latterly they have 
 grown, since fires were prevented from running; the cottonwoods 
 particularly have grown. It is a treeless country now, compara- 
 22-7 
 
**38 
 
 THE STATE OF KANSAS VS. 
 
 tively, except where trees have been planted. I don’t think 
 
 490 there has been a very great increase in the timber along the 
 river. The farmers have planted groves of catalpa trees and 
 
 they have planted orchards and grown them successfully on the 
 uplands. The increase on the uplands is more noticeable. It has 
 been quite decided ; and to some extent the number of acres under 
 cultivation has been increased during the time I have been here. 
 As to the effect of the increased growth of timber and the increase 
 in cultivation, that is problematical, but a smooth, unbroken pas- 
 ture of grass land will certainly shed off a little more water 
 
 491 than a ploughed held. As to the ground water described by 
 the witnesses, I don’t think that has disappeared. The water 
 
 which I call the underflow or sub-irrigation that existed when the 
 river ran the normal quantity of water within its banks has gone. 
 We can get water here by digging wells deep enough. You can’t 
 keep us from having some water down here. It is not easy to 
 answer how far in feet and inches the water was from the surface 
 during those days prior to 1890, but it was within practical reach of 
 the roots of plants. I suppose we all understand what capillary 
 attraction is. Now, this water will saturate the soil beyond a 
 
 492 point where it enters the land. You understand that perfectly 
 well, don’t you? And that did moisten and fructify the soil 
 
 and we raised better corn then than we do now. They tell me that 
 alfalfa roots run down sixty feet, but I never dug one out as deep as 
 that, and I don’t believe it. Alfalfa goes to the water and you can’t 
 raise it without water. And so about corn roots ; I don’t know how 
 far the- go down for drink; but the soil was moistened, as we be- 
 lieved, and the more we thought of it and the more interest we had 
 in it, the more we believed we had sub-irrigation from the Arkansas 
 river when its banks were full or the flow was normal. I can’t 
 state the depth from the surface of the soil to the water level of the 
 country. I am not trying very hard to state it, because I haven’t 
 measured it. I can’t tell the distance. I can’t give it in feet and 
 inches. As to alfalfa roots extending into the ground, I said 1 
 
 493 didn’t believe they went sixty feet. There is no doubt they 
 go further than corn roots. It is a deep-rooted plant, very. 
 
 I never made any investigation in reference to the underflow, as 
 to how far from the river it extended. It is all observation and 
 practical experience in the use of land — observation in buy- 
 
 494 ing the crops and hearing farmers talk. I am sorry to say 
 that the cultivation of the land to corn in this vicinity with- 
 out rotation with other crops is practiced too much here. I am 
 sorry to say that because it impairs the fertility of the land to raise 
 continuously any one crop unless it should be a crop like alfalfa, 
 which is a fertilizer itself. That may to some extent account for the 
 decrease in the number of bushels of corn per acre. It is ver} 7 ' 
 slight, and it is no different or worse than it is all over the country. 
 It doesn’t apply to this sub-irrigated valley particularly by any 
 means, so I couldn’t look there for the reason for the change. In 
 
THE STATE OE COLORADO ET AT,. 
 
 389 
 
 my judgment, whenever corn or any other crop lias grown for a 
 number of years in succession — a great many years in succession — 
 it impairs the productiveness. I don’t mean to say it ruins 
 
 495 the soil ; it will stand a good deal of abuse. I have never 
 made any observations or measurements nor talked with 
 
 anybody about figures as to the amount of water in the river. 
 These are my impressions, and will not be very far wrong. If I 
 swim a horse I know how deep it takes to swim him. In the early 
 years the water in the river always increased as the cold came on, 
 but when you get into the very cold months that condition is not so 
 marked. But when cold weather comes on it increases the flow in 
 these Western streams unlike anything in the East that I 
 
 496 know of. The flow in the month of March is usually strong ; 
 that is, a good average normal flow — that is, before the 
 
 497 mountain snows would come down. We generally ex- 
 pected a June rise in the Arkansas river. I think 
 
 I noticed the falling off in the river during the winter months 
 as early as 1890, but I didn’t notice the water in the winter time. 
 Well, it was about 1889. 1890, 1891, etc., that we began to observe 
 the loss of the water, until we became satisfied that our water 
 
 498 was going — gone. I don’t remember what year I first passed 
 through Colorado; it was after 1878. I saw more of the 
 
 ditches in the summer. I remember that year because I went across 
 through Colorado looking for cattle and finally went to Utah and 
 bought there, but I was about in Colorado in 1895 more than in 
 previous years, and I have been back and forth through the State 
 since and have seen ditches. My impression is that I knew they 
 were irrigating in Colorado as early as 1890, but I am not sure now. 
 I will not swear that I can fix the year. The first time I was in 
 Colorado was somewhere about the year 1890. 
 
 Redirect examination. 
 
 By Mr. Ashbaugh : 
 
 499 I know that up and down the river around my house 
 in going across there I have repeatedly seen the river en- 
 
 500 tirely dry. It was in the latter part, I should say, of August, 
 and September, and during the maturing season of the year. 
 
 The ditches that I saw in Colorado in 1895 were irrigating ditches, 
 but to what extent there were irrigating ditches in Colorado I don’t 
 know now. I didn’t measure them, swim them or jump them. I 
 just saw where our water was going, that was all. 
 
34(3 
 
 THE STATE OF KANSAS Vs. 
 
 501 C. P. Fullington, Wichita, Kansas. 
 
 Direct examination. 
 
 By Mr. Ashbaugh : 
 
 1 have lived in Wichita for thirteen years, and prior to that lived 
 in Kiowa county, Kansas, since 1881. From 1 88 i to 1899 I was in 
 the cattle business exclusively ; since that time I have been in the 
 real estate and live stock brokerage largely, and farming also. My 
 cattle business extended over southwestern Kansas from the Colo- 
 rado line down to Edwards county. I had one location in Colorado 
 and three in Kansas. The locations in Kansas were in Morton 
 county, in Comanche county and Kiowa county, and another in 
 Kiowa and Edwards counties. The location in Colorado was 
 
 502 on the Cimarron river. These locations were for the purpose 
 of grazing and breeding cattle and feeding. Our herds from 
 
 1881 to 1884 averaged about ten thousand ; from 1884 to 1889 about 
 five thousand. From the Colorado line to Hutchinson I have known 
 the Arkansas valley since 1881 by riding and camping and grazing 
 along the valley, and in the last thirteen years I have travelled up 
 and down the valley. I have handled from one hundred to one 
 hundred and fifty quarters of land a year, buying and selling. 
 
 503 The Arkansas valley in Sedgwick county at some points is from 
 fifteen to twenty miles wide, and in Reno county I should think 
 about as wide as in Sedgwick county. In Barton county it would 
 
 504 average from five to fifteen miles wide; in Edwards count}' 
 about the same. In Ford county it begins to narrow up ; the 
 
 bluffs come down pretty close. At the western line of Ford county 
 in one place it is about three miles wide, and then it extends as 
 you go down to ten or twelve miles. In Gray count}' it varies. I 
 should say between the sand hills on the south and the bluffs on the 
 north it is four to eight or ten miles wide. In Finney county it is 
 anywhere from four to ten miles wide. My recollection is that in 
 Kearney county it begins to narrow up quite considerably, but 1 
 think it would average about six miles. In Hamilton it 
 
 505 would average perhaps five miles, and near the State line I 
 guess it would be about three or four miles wide. Just west 
 
 of the State line it widens out and then narrows in a short distance 
 in above until you get to about Lamar and there in that vicinity 
 there is quite a change in the character of the valley. It seems to 
 pinch in almost to the river. The soil there is a sort of graying 
 brown sage brush soil. There is not much vegetation on it. I 
 wouldn’t call it an agricultural country. The sage brush in 
 
 506 some places extends right down to the bank. I don’t think 
 that any crops would grow upon that land without irrigation 
 
 or abnormal precipitation or rainfall. I don’t think, naturally and 
 normally, there is precipitation enough along about Lamar to grow 
 crops. I should consider that when you have gotten up the river 
 
THE STATE OF COLORADO ET AL. 
 
 341 
 
 about the first county in the State of Colorado, you have gotten into 
 the arid lands. The Arkansas valley in the State of Kansas is a 
 sandy soil, varying from almost clear sand in the immediate vicin- 
 ity of the river to a dark, sandy loam, and growing better as you 
 come down the river. I have been acquainted with the Arkansas 
 river from 1881 and my familiarity with the river would extend 
 through the months of September, October and November more 
 particularly. Our ranches were south, and that was die season of 
 the year in which we drove our beeves and held to the river and 
 crossed it back and forth, and during that time I would think 
 
 507 the nomral depth was from two to four or five feet. It would 
 run any where from belly deep up to high up on the saddle 
 
 skirts of an ordinary horse. This same depth would extend 
 on down the river. At some points it would be deeper than 
 others, owing to the width of the channel. The channel would 
 vary in width, I should think, from five hundred to a thousand 
 feet in Hamilton county, and about the same in Kearney 
 
 508 county, and about the same all the way down. The river, 
 it seems to me, was wider up there than it is here at the 
 crossing at Douglas avenue, during the last ten years, ex- 
 
 509 eluding the flood times. It its normal condition the average 
 depth was very much less. We would go across frequently 
 
 ankle deep on the horse, and many times I have seen it almost dry, 
 except in washed places along the bank, so that we would have to 
 drive up and down the stream at different points to get water for the 
 cattle. The crops raised in the valley from the Oklahoma State 
 line to the Colorado State line are corn, wheat, barley, alfalfa, 
 kaffir corn, sorghum and all sorts of produce, vegetables and fruit. 
 Corn is raised from Oklahoma up through and including Ed- 
 wards county. Wheat is raised more or less all the way through ; 
 alfalfa all the way through. Garden stuff for market I 
 
 510 should say is raised not farther up than Edwards county. 
 We have water underneath the surface, what we call sheet 
 
 water, clear out through the valley. I don’t know what the cause 
 is but it is a fact in many places along the river the water is not 
 as near the surface as formerly. 1 think this lowering of the water 
 level under the land in the valley has affected some crops ad- 
 versely, particularly crops that are not very deep-rooted, such as 
 corn, possibly wheat, kaffir corn, and crops of that character. 
 
 511 There might be points where it would affect tree growth, 
 fruits, etc., and produce. I don’t believe it would be dis- 
 astrous to alfalfa. It is a deeper rooted plant and will go down to 
 the water. I think the roots of alfalfa would reach the water 
 though it was down beyond the point where it would be of any ad- 
 vantage to the shallower rooted plant. We are practically out of 
 the corn district when we reach Pawnee county. 
 
342 
 
 THE STATE OF KANSAS VS. 
 
 512 Cross-examination. 
 
 By Mr. Rogers : 
 
 I came to Kansas in 1881 and settled at a point south of Kinsley 
 in what was then known as Comanche county. That county was 
 not then as closely settled as it is now. It increased from 1884 to 
 1889 and 1890 quite considerably, and then it depopulated 
 
 513 and then it has increased again. Comanche county is not oil 
 the Arkansas river. In 1885 or 1886 the legislature changed 
 
 the lines or established Kiowa county and that left rne in Kiowa 
 county. In 1881, in September, we started our herds west 
 
 514 and drove up west to the west line of the State. We had 
 too many cattle on the range we then occupied and had to 
 
 seek new pastures for part of them. All the country on the flats 
 south of the river was an open range at that time. On the north 
 side I think it was practically open back on the flats. I 
 
 515 think there was some settlement up in Ness and Hodgeman 
 counties. I went up the river on the south side in September 
 
 1881 and found water flowing in the river along the entire course 
 wherever we came in contact with it. Didn’t make any use of the 
 water except to water cattle. We crossed at Lakin. We 
 
 516 didn’t cross-oil r herd there at Lakin, we crossed our wagon 
 and outfit. The town is on the north side. Other than that 
 
 we didn’t cross the river on that trip. We crossed it on horseback 
 at Dodge, Cimarron and Lakin, but we kept our herd on the south 
 side. In driving our cattle we didn’t average more than seven miles 
 a day. When we got to Cimarron we crossed the river; we 
 
 519 forded it and we forded it at the mouth of the Mulberry ; 
 that is below Dodge. My recollection is that at places the 
 
 river would be perhaps twice as wide as at other places ; that is, 
 what I mean to say by that, the flat, level sand coming to the 
 abruptly rising bank ; and where it would be wider it would be 
 shallower. In some instances it would cover the whole of the river 
 bed where it had a shallow depth, and then in other places where 
 it was narrower it would be deeper. We preferred those wider 
 places, in watering our cattle, because of the ease in getting down to 
 it. Where the river would be very wide it would not be sometimes 
 over knee deep, and possibly from that to two feet, and where it 
 narrowed up possibly it might be five feet deep, away up on the 
 saddle skirts, up where it would wet a person. Where it was five 
 feet deep the channel was usually narrow ; that is, that part of it 
 was deep. 
 
 520 I made a trip up the river again the next spring. That was 
 probably the last of April, just precedi ng the spring round-up. 
 
 521 I made the trip by rail to Lakin and went right across the 
 country. Then I was back on the river in September, 1882. 
 
 I found the river then substantially the same as I had found it the 
 previous year. I was there each succeeding year for years until 
 
THE STATE OF COLORADO ET AL. 
 
 343 
 
 our railroad was built down below, and sometimes in crossing 
 
 522 the water would be deeper than at others. I was up again 
 — 1883, 1884 and 1885. 
 
 523 There was no influx- of settlers in western Kansas and Col- 
 orado until after 1884. I was conversant with the fact that 
 
 524 they were settling, but whether there was an increased rain- 
 fall or not I don’t know. They made crops there, and they 
 
 have ever since. I bought corn in Kiowa county. Kansas. I don’t 
 know anything about the crops west from Dodge. I didn’t farm 
 any up there. I don’t think they ever raised any corn in that coun- 
 try ; I never saw any. I received cattle at Cimarron during 
 
 525 the summerof 1894. We had no water at Cimarron to speak 
 of. We had to scrape in the river bottom to get water for 
 
 our cattle, and eventually had to remove them out. Perhaps we 
 stayed there two months, and then had to pull out. I think we 
 commenced there some time in August and pulled out about the 
 first of October. I was along there in 1887 and 1888 and saw ditches 
 being constructed in the counties of Gray, Finney and Kearney, for 
 the purpose of taking out the water in the river. I saw them dig- 
 ging ditches, and some of them had been constructed. Some 
 
 526 of them were enormous canals. That Soule ditch I remember 
 was quite an extensive one. It went down through Ford and 
 Finney counties. I remember some little ditches on the south 
 
 527 side. There were other ditches on the north side, but I don’t 
 remember the names. The general statement as I remember 
 
 it from the people in that country was that they were disappointed 
 in the country — deceived in it— and that the flat lands out away 
 from the bottom were not productive. Most of the people 
 
 528 out on the flats said it was no good, and pulled out. 
 
 The limit of the corn belt, going westward, would be diffi- 
 
 529 cult to establish. I bought good corn in Edwards, Pawnee, 
 Stafford, Pratt and Kiowa counties. These are the farthest 
 
 530 west I have ever bought any for any considerable time. Since 
 that time a good many authorities say that it is beyond the 
 
 limit of the corn belt, that it does not extend west of Reno, perhaps, 
 but I know that Stafford and northern Pratt and the west of Edwards 
 have been good corn producing localities. 
 
 Of late years there have been a good deal of alfalfa on the bottom 
 lands along the river which I travelled over in 1881 and 
 
 531 found but few settlements. The alfalfa planting has been 
 very materially increased, in fact there didn’t use to be much 
 
 of it out there, if any. It has been very much increased in the last 
 few years. Proportionately, there has been quite an increase in the 
 land put under cultivation from Kinsley west; but as compared 
 with this country or a country that is developed there has been only 
 a, comparatively small portion of it. I think that the profitable 
 crop there is alfalfa; it is the only one that can reach water. 
 
 532 In speaking of the fall of the water I intended to say that 
 a fall in the level of the water might be disastrous to certain 
 
344 
 
 THE STATE OF KANSAS VS. 
 
 crops and yet would not be to others ; that is. that the alfalfa, being 
 a deeper rooted feeder, might reach it, where it would get entirely 
 out of reach of the surface crops. I don’t think the alfalfa crop has 
 been benefited. I think there might be cases where the water was 
 at such a level that a further drop of four feet or any amount 
 
 533 would be disastrous or detrimental to the growth of alfalfa. 
 I cannot conceive of any crops that would be benefited un- 
 less the water was right on the surface. 
 
 Some of the lands in the western part of the State have increased 
 in value. I can’t name a locality where they have decreased. 
 There are localities where there is some demand for land at a price 
 where previously there was no demand at all, and then again there 
 are localities where there is considerable land at a very much in- 
 creased price. The net result is an increase in the value of the 
 land. 
 
 534 I first went to Colorado in 1882. I have been through 
 Colorado and down through El Paso. 
 
 Redirect examination. 
 
 By Mr. Ashbaugh : 
 
 If the water were within a foot of the surface I would consider a 
 fall of four feet beneficial ; if it were at a greater depth and down to 
 about the maximum point where the alfalfa would reach it, and 
 reach it quickly and profitably, then I would consider it den tri- 
 mental. 
 
 (Objection.) 
 
 535 I would say that if the water was within a foot of the sur- 
 face a fall of a couple of feet would be beneficial. There are 
 no marshy lands along the river bank except in small spots, not 
 enough to speak of in calling them in that way. I don’t remember 
 of sufficient marshy lands along the river to be noticeable years ago. 
 
 615 D. A. McCanless, Wichita, Kansas. 
 
 Direct examination. 
 
 By Mr. Ashbaugh : 
 
 I live in Wichita, Kansas. I first came here in 1869, and in 1879 
 I removed to Medicine Lodge, returned to Wichita in 1887, and 
 have lived here ever since. I was the first settler in West 
 
 616 Wichita, on the west side of the river. I established a post 
 office there by the name of Delano. That was about 1870. 
 
 I did business in West Wichita from 1870 to 1879. During those 
 years I had a store on each side of the river and crossed the river 
 several times during the day. Sometimes I forded it, swam it, and 
 
THE STATE OF COLORADO KT AL. 
 
 345 
 
 part of the time there was a ferry that took you about half 
 
 617 way across and landed you in a shallow place near where 
 Second street now is. The ferry was established in 1871 and 
 run until the bridge was completed in 1872. Complain- 
 
 618 ant’s Exhibit A-l is a picture of that bridge. That bridge 
 was there when 1 left in 1879. It was a private bridge. The 
 
 ferry might have done some business after the bridge was estab- 
 lished owing to the high price of the toll, and very exorbitant fees 
 were charged. After the bridge was built some people forded the 
 river at low water. It was often the case that people crossed the 
 bridge with a heavy load and then forded the river in coming back 
 with an empty wagon. 
 
 Since 1 returned to Wichita in 1887 I quit the mercantile business 
 and have been engaged in the practice of law. I have been prose- 
 cuting attorney, probate judge, pro tem district judge of this county, 
 and president of the board of police commissioners. 
 
 I have had such an acquaintance with the Arkansas valley through 
 the county as a man would acquire by frequent visits over the 
 county and being interested in various kinds of business. 1 
 
 619 was just as familiar with the river as it was possible, almost, 
 for a man to be who didn’t live on the river, for I had to cross 
 
 the river to go to the bank, post office and everything else, after we 
 discontinued our post office over there. I should think that the 
 average flow of the river during the years I was here until I went 
 to Medicine Lodge, excluding the months of May, June and July, 
 below the mouth of the Little river, would be three and a half feet. 
 The average flow above the mouth of the Little river during 
 
 620 those years I should estimate at about three feet. I should 
 think the average flow of the Big river above the mouth of 
 
 the Little river for the last ten or twelve } 7 ears was not over a foot 
 and a half or two feet deep — not to exceed two feet anyhow. Dur- 
 ing these later years the Big river has been dry so that it wasn’t 
 scarcely running at all. 
 
 Q. How much of the year during the last ten or twelve years has 
 it been practically dry above the mouth of the Little river? 
 
 A. Oh, I couldn’t answer that question. I never examined it. 
 
 Q. Well, has it been any considerable portion of the dry season ? 
 A. Yes, it has been dry. 
 
 Q. Now, then, state, dining the corresponding seasons of those 
 earlier years did it go dry ? 
 
 A. No, sir, I never saw it dry. 
 
 The underflow in this valley is a kind of sub-irrigation, 
 
 621 the water that flows beneath the surface, and I think it ex- 
 tends on the east side from Chisholm creek and on the west 
 
 side about out to the slough. In this vicinity the average width of 
 the valley between the foot-hills is about seven miles. As you go 
 up the river it gets wider. The underflow extends back to the foot- 
 hills on either side. Since the years from 1870 to 1879 I think the 
 underflow has decreased and fallen below the surface in proportion 
 
346 
 
 THE STATE OF KANSAS VS. 
 
 to the — the same as the decrease in the surface !water, the 
 
 622 water appearing on the surface. On the west side I dug 
 several wells in the former years; that is, drove these 
 
 wells, these pumps, and we could reach water from four to six 
 feet. In recent years you would have to go much deeper than that. 
 Now, that is true as far as my observation extends in the valley. 
 In those earty years we couldn’t dig cellars very deep, and I notice 
 now the average depth of a cellar is much deeper than it possibly 
 could have been at that time, because the water would come into 
 the callar. You can dig a cellar much deeper here than you could 
 then. There is less water coming into your cellar. If you will ex- 
 amine those old buildings you will find scarcely if anv cellars or 
 basements under them. Under the buildings built within the last 
 ten or twelve years they more or less have a basement or cellar. 
 The residences have cellars now too, but in the early days 
 
 623 there were very few of them had cellars-. This was because 
 the water was not more than three or four feet from the 
 
 surface under the valley here. I think that was true on an average. 
 You can dig a cellar most any where now without any danger of 
 water coming into it. During the last ten or twelve years there has 
 been but very little complaint of water getting into the cellars, ex- 
 cept in our recent flood of July, 1904. I don’t know of any com- 
 plaint having been made about water being in those cellars dug 
 within the last ten or twelve years until the last flood. During this 
 last flood I know that water has risen in these cellars that 
 
 624 never had any before. This was true generally. This is to 
 a large extent true of those cellars where the water came in 
 
 from below. The underflow rises and falls with the river. 
 
 (Objection.) 
 
 I mean that when, to illustrate, there is water in your cellar, as 
 the river recedes that water in your cellar will recede in the same 
 proportion that the river does, and it will rise in the same 
 
 625 proportion, flowing in the same direction — in a southeasterly 
 direction. It is my opinion that throughout the valley here 
 
 they have to go for water here now four or five feet deeper than they 
 did in the 70’s. This would be a mere estimate. I never examined 
 it so as to answer as a witness. While this underflow was full up 
 and the river was full of water of course there was a kind of a sub- 
 irrigation that the roots of vegetation reached, and corn would reach 
 that, and without anv rain you could raise a crop here, that is, with 
 very little rain, in the valley. The corn would grow because the 
 roots would reach that underflow — would reach that moist- 
 
 626 ure. It is not so now. The corn crop in the valley during 
 the first ten years was a pretty sure crop, because of the sub- 
 irrigation, as I understand it. Corn crops on the uplands during the 
 last ten years are not so certain ; they have to depend upon rain. 
 
 Examining Exhibit A-l, I would take this picture here to repre- 
 sent the river at a low tide or low water. I think so because those 
 
TEE STATE OF COLORADO ET AL. 
 
 347 
 
 piles here, this part of the bridge is visible, and when the river was 
 up it was not. It was covered witli water when the river was high. 
 Those lower braces that show in the picture you couldn’t see when 
 the river was high. 
 
 627 Cross-examination. 
 
 By Mr. Hayt : 
 
 When I stated that during the last flood many cellars in town had 
 water in them I didn’t answer from my own personal examination. 
 All I know in reference to that is what I heard others say. This is 
 true except as to my own ; I examined my own. It had water 
 in it. 
 
 628 I have never talked with any one about this case, but I 
 hav- read articles in the newspapers. Of course I have had 
 
 general conversations as to this suit, such as lawyers talk when they 
 are together. 
 
 When this recent flood was coming down and the wat^r began 
 to appear in front of my residence the idea of that underflow did 
 occur to me pretty strongly. There was not only an overflow but 
 an underflow, and I went to the cellar to see it, and I was just in 
 time to see it come in from the northwest. We have discussed this 
 underflow ever since I came into this country. We called it, 
 
 629 not an underflow, but a sub-irrigation. I never heard it 
 called by any other term until this suit came up. The best 
 
 of my recollection is that we called it sub-irrigation and was pretty 
 proud to call it that — that we had something here that was very 
 valuable — sub-irrigation. We could raise stuff whether it rained or 
 not. We used the term, of course, as an advertising medium. It 
 was one of the good things we had here and we didn’t fail to 
 
 630 call attention to anything good that we had. The settlement 
 first commenced on the east side here in 1869 and 1870. In 
 
 631 1871 and 1872 it was pretty lively. It may be true in part 
 that there were no cellars under those first houses, not because 
 
 the water came near the surface but because the country was new and 
 they built in a cheaper way ; but I think one of the main reasons 
 was because a man didn’t care to dig a cellar because it would fill 
 up with water when the river would rise, if it didn’t run in while 
 digging it. In June and July when the river was full you couldn’t 
 go but a very short distance until you struck water. 
 
 In the early days I didn’t see any evidence of other channels 
 aside from the channel in which the river now flows; but I think, 
 from what the Indians first told us, that the river used to 
 
 632 flow from — this used to be the bed of the river from Chic- 
 holm creek to the slough out here about four miles west. I 
 
 say that at some time the bed of the river extended from Chisholm 
 creek on the east to the old channel on the west in the early days, but 
 never within our days in this town. But the Indians used to 
 tell us from their signs that that was true, that the river once 
 
348 
 
 THE STATE OF KANSAS VS. 
 
 covered all this country. I thought from the reasons they gave that 
 their claim was well founded. I think myself that it is probably 
 .|jue and the river once flowed somewhere — covered this entire 
 valley. I think this slough is a part of the river, four miles 
 
 633 from here, — four miles west of town. Now, I think that 
 at some time in modern times there was a stream that flowed 
 
 from the Little river right down through the Manhattan hotel 
 in a southeasterly direction, entering the river lower down. I 
 remember when any slight rise in the river occurred it flowed 
 right through the streets, and then it is manifest in this last 
 flood there was quite a current — a tremendous current — 
 
 634 there in that same location. 1 think at one time the 
 river may have run as far east as Chisholm creek ; that 
 
 is about a mile and a half from the Federal building in 
 Wichita; and I think it might have run as far to the west of this 
 place as that old slough ; that is about four miles. The old slough 
 rises in the vicinity of Colwich and flows in exactly the same direc- 
 tion with the river itself, and it rises and falls with the river. 
 
 635 None of those old channels of the river ran nearer than three 
 blocks of the Federal building. 
 
 All I know about the direction of the water is from actual expe- 
 rience in regard to the matter. I dug two cellars and that was the 
 case with both of them. The water came from the northwest to the 
 southeast. I was in the cellar when it commenced to come in at 
 the last flood — as Colonel Murdock would say, percolated through — 
 and it came in that direction, and light objects floated off 
 
 636 afterwards to the southeast. I suppose the water came up 
 from the bottom as well and from all sides. I noticed it first 
 
 coming from the northwest corner. I never heard anybody speak 
 of this but myself. I never spoke to any one about it. 
 
 When I first came into this country there were no trees at all ex- 
 cept a few isolated trees along the bank of the river, burned on one 
 side. There were no healthy looking trees. The burning indicated 
 to me that there had been a fire. The Indians always burned it off 
 every year, and that prevented the growth of trees, but there was a 
 large growth of grass, of course, in the valley. On the high lauds 
 the grass was good, but on the west side of the river it was only in 
 bunches. 
 
 This country has been very much improved so far as the 
 
 637 growing of trees is concerned, and I think the rainfall has in- 
 creased. I don’t know of this increase from any statistics, 
 
 but just from common observation. There is a hundred times more 
 timber in this vicinity and up and down the river in this county 
 than when I firstcame here. Then there was none, absolutely none, 
 except, as I tell you, along the river, or isolated trees here and there. 
 The growing of these trees absorbed some moisture from the ground, 
 but I think they brought good returns from the atmosphere — 
 brought more rain. It never occurred to me that these trees would 
 
‘4ME STATE 6f COLORADO ET AL. §49 
 
 gather and hold a great deal of rain and increase the evaporation in 
 that way. I don’t think that would be true. 
 
 638 My house was four blocks from the river, on the west side. 
 I had to go, there, about four and a half feet to water; and 
 
 that water has receded four or five feet. I never from actual ob- 
 servation ascertained that the water level was receding in that locality 
 at all; it is only hearsay, as I stated before, — general talk. Well, 
 I know from my own knowledge that it has receded but I can’t an- 
 swer as to the locality where I first built on the west side. I know 
 it has receded on this side of the river. 
 
 639 All I know about there being a flow of water underground 
 I have ascertained from looking in these cellars I have de- 
 scribed and shallow wells near here. 
 
 I used to cross this river perhaps half a dozen times every day, 
 and when the water was up it would come to the top of these braces 
 (indicating on Complainant’s Exhibit A-l). The water came above 
 these braces on the piles of the bridge and we used to watch that 
 ver}^ carefully for fear that things would lodge there and de- 
 
 640 stroy the bridge. When I first came here there was no ferr} r 
 here; we had to ford the river. We could ford it during a 
 
 good part of the year. It was dangerous fording almost any time. 
 What made it dangerous was the amount of water and the quick- 
 sand. The river must be pretty shallow, owing to the quicksands, 
 in order to be forded without danger, where there is quicksand. 1 
 have seen seventeen thousand head of cattle cross this river in one 
 day. They would swim over as we would swim a horse. They 
 could cross here on account that they could swim the cattle and not 
 expose them to going through quicksand. I don’t remember seeing 
 any Texas cattle cross this river except those that swam. 
 
 641 Chisholm established this trail ; it is known as the Chis- 
 holm trail. It is true that in driving cattle they usualty 
 
 select narrow places in the river in order that the water may be 
 deeper and that the cattle may be required to swim. It is the safest 
 to swim cattle. They forded here with w^agons and teams at the 
 same place and immediately south of that bridge. The wagons 
 would swim. I have seen them swim. In those early days up to 
 1879 they could cross the river ordinarily by fording with wagons 
 and teams from November until the ice would begin to run 
 
 642 pretty bad in the river later on. There were several months 
 you could cross during the fall of the year with comparative 
 
 safety. You could ford it in October and November, and some- 
 times March and April the ice would be running so in the river 
 that you could not do it safely, although the men did ford it all the 
 time. The river was forded more or less all the time, or attempted 
 to be. I was away from here from 1879 to 1887, and when I came 
 back in 1887 I noticed a material diminution in the amount of 
 water in the river. I couldn’t tell you exactly what was the average 
 flow upon my return in 1887 as compared with the average flow 
 prior to 1879, having never made any measurements or noticed it 
 
350 
 
 TftE STATE OP KANSAS VS. 
 
 with that in view. My opinion is that it would be about one-half. 
 In iny judgment, the Big river at this point had receded about 
 one-halt from 1879 to 1887. By the “ Big river” I mean the Big 
 Arkansas. 
 
 643 I don’t think I heard this matter discussed until 1890. 
 In 1890 there was considerable complaint from the farmers — 
 
 from the people living along the Arkansas river. The reason was 
 that the Colorado corporations were taking the water from the river. 
 I don’t remember that there was any complaint about the Colorado 
 farmers taking the water from the river in small ditches. I remem- 
 ber that Colorado was taking the water — or corporations in Colorado 
 were diverting the water. The complaint was geueral that the cor- 
 porations in particular were diverting the flow of the water from its 
 natural course. That was about the time of the birth of the Populist 
 party. In about 18yl and 1892 the Populist party swept over this 
 country. 
 
 644 As 1 have stated, the underflow was four or five feet below 
 the surface of the ground in the early days on an average. I 
 
 know that it has since fallen considerably below that. I base my 
 opinion upon the instance of the wells and the cellars I have de- 
 scribed. The underflow rose and fell with the water in the river. 
 I base the statement because it has the current; that the river flows 
 right along under; that this part of the river is simply visible, but 
 the river isjust simply flowing along under that the same as 
 
 645 it is under that channel, and if you dug down low enough 
 you would have another river. I had never run any levels 
 
 to determine whether or not the water level of the country in the 
 valle}' outside of the river channel was lower or higher than the 
 river. I don’t know what the fact is in reference to the elevation 
 of the underflow or ground water upon high land. I have never 
 been informed that in this vicinity and generally the water 
 table rose somewhat in reference to a rise in the surface of 
 the land. I don’t think that has any influence upon 
 
 646 it. I have farmed but very little. I have not had 
 any other business or occupation aside from the practice of 
 
 the law. I had a farm, of course, and farmed to some extent, but 
 not immediately in this valley; in the valley beyond the Ninnes- 
 cah. For some years I was engaged in the mercantile business here. 
 I have never farmed in this valley mvself, and when I said that the 
 crops in this valley had been affected I based that statement upon 
 reports — general complaint. I have not observed the matter closely 
 enough myself to be able to state definitely, only this : I have a 
 brother-in-law that lives just across the river here and owns a farm, 
 and it is plainly to be seen on his farm that he has suffered from 
 that in regard to his corn crop. He had been cultivating corn over 
 there since 1872. He has not had the land in corn all thetime, 
 
 647 general-y in corn, but it doesn’t yield such a certain crop as 
 it used to. During the thirty-two years from 1872 to the 
 
 present time, I suppose two-thirds of the time he has had the same 
 
'HtK STATE Oft COLORADO Kt At. 
 
 881 
 
 land in corn. It would be a mighty good country in which the crop 
 would not decrease if the river had remained as it had been there- 
 tofore. On this land he can’t raise wheat; he is compelled to raise 
 corn. I know he hasn’t fertilized the land during these thirty-two 
 years ; it has not needed it. Nature has, I think, been very prodigal. 
 
 I have never seen the time when the Big Arkansas river didn’t 
 have water in it below the mouth of the Little Arkansas river, but 
 above that I have seen it when it was almost dry. It has 
 048 usually a pretty good flow in it below, because of the Little 
 river. I never saw the river dry above the Little river, until 
 after the year 1879 that I now remember of. The first time I saw it 
 dry was some time in the eighties. 
 
 This last flood here in 1904 was at a time of excessive rainfall 
 here in this vicinity, and during the time the water was up it rained 
 a good deal here, and we don’t charge Colorado with that flood. 
 
 649 Redirect examination. 
 
 By Mr. Ashbaugh : 
 
 We supposed that the sub-irrigation through the first years had a 
 current to it and a flow or movement under the soil. The word 
 “ sub-irrigation ” is just a word intended to conve} 7 the same mean- 
 ing as you apply to the “ underflow.” 
 
 650 Buffalo grass is a short grass that grows very fertile. It 
 doesn’t grow any higher than two or three inches. It grows 
 
 on all kinds of land. It grows on the high table lands in the State 
 general-y. 
 
 651 Recross-exam ination. 
 
 By Mr. Hayt : 
 
 The ferry boat that I have spoken of was a large boat that would 
 convey and hold a wagon and team. It is what is known as a flat- 
 boat, and would draw about a foot and a half of water. It was pro- 
 pelled bv a pole in the hands of a man who would push it. That 
 was the only boat I ever saw here except little row boats. In the 
 later years this ferryboat was improved by a cable ; it was then 
 pulled across. 
 
 652 Hiram W. Lewis, Wichita, Kansas. 
 
 Direct examination. 
 
 By Mr. Ashbaugh : 
 
 I have lived in Wichita since the 22nd of September, 1876. My 
 business has been principally banking and mortgage loans. I have 
 been in the milling business to some extent for about ten years. I 
 have been pretty well acquainted with the Arkansas river through 
 
THE Si'AtflC OE kA^A^ VS. 
 
 m 
 
 this part of the State from observation and constantly living here it 
 quarter of a century or more. I have done a pretty large and 
 satisfactory business most of the time. I have seen the river 
 653 almost every day, I suppose, or nearly so. From general ob- 
 servation, without making any measurements at any point, I 
 should say that the valley of the river would average eight or twelve 
 miles. Right here at the city of Wichita it would be about six or 
 seven miles. Without having measured it, and simply from obser- 
 vation, I should say that the river at Wichita during the first ten 
 years that I knew it was eleven or twelve hundred feet wide. 
 
 655 During the first ten years that I knew the river there was a 
 considerable flow of water in it. 
 
 (Objection.) 
 
 During the last ten years, above the mouth of the Little river, the 
 flow has been very slight during the dry season. At times there has 
 been no flow at all, when you could walk across it for miles and 
 miles without wetting the sole of your boot. I have done it myself. 
 But as to what the average flow was during those ten years, I couldn’t 
 speak of that with any accuracy at all. I never knew that condi- 
 tion to exist up to probably the 90’s. I have hunted along the river 
 ever since I came here, ofl and on, and I don’t remember of any time 
 up to the90’s when I could get across without wetting my feet. 
 
 656 I don’t think that the flow of the Little river has changed 
 to any appreciable extent during the years I have lived here. 
 
 I think it rises in Rice and McPherson counties. It is a surface 
 stream, supplied by rains and possibly some springs. 
 
 The underflow is supposed to be a bod)'' of water that percolates 
 through the sand, running parallel with the Big Arkansas river. 
 
 657 Cross-examination. 
 
 By. Mr. Hayt: 
 
 I never saw the river entirely dry across the entire bed until the 
 90’s. I can’t give the exact date, but at different times I have been 
 hunting up and down the river along in the 90’s, probably 1890, as 
 well as others subsequently, when it was a perfectly dry bed of sand 
 from shore to shore. The year 1874 is said to have been a 
 
 658 dry year, but that was two years before my advent into 
 this country. 1 remember the flood in June, 1877, very 
 
 distinctly. In the flood of 1904 the volume of water was rather 
 less than the volume of the flood of 1877, I should say. The 
 bridge that was built here at Wichita in 1879 was built after 
 the flood of 1877. I was not one of the county corn- 
 
 659 missioners and don’t know whether they had that flood 
 in mind when they planned the bridge or not. It is a good, 
 
 common sense rule to build a bridge with reference to floods, but 
 they don’t always go in that way. I have never experimented any 
 with reference to the underflow, only pumping it out of my cellars. 
 
THE STATE OF COLORADO KT AL. 
 
 353 
 
 I haven’t been engaged in farming; I have been engaged in loan- 
 ing money upon farm lands. There has been a gradual increase in 
 the values of farm lands for the last thirty years from the Govern- 
 ment price up as high as one hundred dollars an acre for 
 660 lands in this vicinity, well improved. By the “ Government 
 price” I mean $1.25 per acre. Lands are probably as high 
 here as they have ever been. There has been a great deal of in- 
 crease right along. The boom in the city of Wichita culminated 
 in March, 1887, but I don’t think the land boom ran parallel with 
 the boom in city lots. After the collapse of the real estate values 
 throughout the West in 1887, there was some decline, perhaps, in 
 farm lands in this county, but not nearly so great as in city prop- 
 erty. The average value of farm lands from seven or eight miles 
 to twenty miles from town, with good average improvements, is 
 from thirty to fifty dollars an acre. We have all kinds of farmers 
 here — good farmers and poor farmers. I have never heard any 
 complaint in reference to crops from our best class of farmers. 
 
 662 A. B. Caldwell, Wichita, Kansas. 
 
 Direct examination. 
 
 By Mr. Ashbaugh : 
 
 1 live in Hutchinson, Kansas, and have lived in Reno county about 
 thirty-three years. 1 am sixtv-seven years old. Prior to that time 
 for a short period I was in the State of New York, and then during 
 the war I was in the Army of the Potomac. Previous to that 1 was 
 on the plains here a good many years. For the three years im- 
 mediately preceding the war I was a scout for the cavalry on the old 
 trail most of the time. For several years previous to that, 
 
 663 beginning in 1850, I was on the trail most of the time. The 
 first time I passed through the Arkansas valley was in the 
 
 spring of 1850, going through on the old trail as far as Santa Fe, 
 New Mexico. The first that we struck the Arkansas river exactly 
 was near Great Bend, although 1 struck the Arkansas river near 
 where Hutchinson now is on that trip. On that trip I was part of 
 the time acting as hunter for the trail, and of course went outside of 
 the regular line of march and quite a good wavs off from the 
 
 664 trail several times. There were two or three trails known as 
 the Santa Fe trail, although they came together and made 
 
 one general trail. The Santa Fe trail is about twelve miles north 
 of Hutchinson, between McPherson and Hutchinson. It strikes in 
 there. And before that the two lines had come together from the 
 east and it was one trail from there out, running up the river, fol- 
 lowing pretty nearly the valley, up on the foot-hills near where we 
 knew what was called the stone corral. That is north and west of 
 Hutchinson, and through Rice county, and at Great Bend coming 
 down close, within sight of the river. At Great Bend it crosses the 
 Walnut, within sight of the river. Fort Jerry was established right 
 23—7 
 
354 
 
 THE STATE OF KANSAS VS. 
 
 at the crossing in 1861. The trail runs west near Pawnee rock. On 
 that Pawnee rock there was a crossing that was sometimes used by 
 fur traders and trappers. It went on up west where Lamar 
 
 665 now is, in Colorado, passing Garden City and Dodge 
 City and Fort Dodge. Fort Dodge was a military post in 
 
 1861, and pretty near the river. If I am right, Bent’s fort was about 
 forty miles west of the Colorado line. The trail followed the river 
 fifty miles or more above there. The site of Bent’s fort was changed. 
 Old Bent’s fort was a little farther east than the later Bent’s fort. 
 The Santa Fe railroad follows the old Santa Fe trail very closely 
 from Hutchinson to Las Animas, and is directly on it a good 
 
 666 deal of the way, and very close all of the way. When I first 
 went on the trail I was simply a driver and all-round boy for 
 
 the train, and the next time I went through I had acquired a little 
 proficiency, perhaps, and I acted as hunter for the train, whose busi- 
 ness it was to have game in the camp grounds as early as pos- 
 
 667 sible after they came. I was hunter for two or three trains, 
 and in some respects in one or two of the trains I was confi- 
 dent of the overseer of the train. Where a man was put in charge 
 who didn’t know the country thoroughly, I was adviser simply to 
 advise him where he could find good feed and good water and good 
 camping places. 
 
 In 1859 I went into the employ of the Government as scout and 
 guide. I was with the cavalry on the line of the trail for 
 
 668 three years, on the Santa Fe trail. At that time we were 
 having considerable trouble with the Indians and the over- 
 land stages on those stage routes through there. The Overland 
 Stage Company was not established then, but Holliday was running 
 an independent line. The intention of the cavalry was to protect 
 the cattle of the trains that went over the trails from the Indians, 
 which we were having trouble with all the while, and I was pretty 
 well conversant with the country and being a pretty fair trailer, was 
 selected as scout and guide. This employment continued until 
 1861. 
 
 I went into the Army of the Potomac and served until Gettys- 
 burg, where I was shot through the body twice and through 
 
 669 the right arm. I belonged to a band of sharp-shooters. 
 
 I came back to Reno county in about the year 1870, and 
 have lived there ever since. For a number of years I was a farmer, 
 raising some stock, and then I have been for a little over 
 
 670 twenty years a real estate agent, handling for a number of 
 years the lands belonging to the Kansas Loan and Trust 
 
 Company, and some belonging to eastern parties. In my operations 
 I travelled over Reno, Rice, McPherson, Stafford, somewhat farther 
 west than Garden City, and north as far as Scott City and back again. 
 This distance I travelled over several times a year, and some parts 
 of it oftener than that. I am fairly well acquainted with the valley 
 to the Colorado State line. West of Wichita there are places where 
 the valley would be forty miles wide, until you get up near the 
 
THE STATIC oE COLORADO ET AD. 
 
 355 
 
 Colorado line where it will he five or six. It varies. Through 
 
 671 Reno county, on an average back to the foot-hills it would 
 be twenty to twenty -five miles. Through Barton county, 
 
 fifteen miles; through Pawnee county ten miles; through Edwards 
 county ten miles; through Ford county six miles; through 
 
 672 Gray county four or five miles; through Finney county four 
 or live miles; through Kearney county four or five miles; 
 
 673 in Hamilton county it is quite narrow at the State line. 
 In the first county in Colorado the foot-hills come down 
 
 almost to the river, and naturally there is no vegetation to 
 amount to anything. There is no original vegetation of 
 
 674 any value there. Naturally and originally, in 1850 and 
 1851 there was but very little vegetation except buffalo grass 
 
 in the valley, even down on the bottoms. Buffalo grass is a fine 
 grass that grows close to the ground, matures thoroughly in Au- 
 gust, is ripens on the ground and is equally beneficial winter and 
 summer for feed, although it is not green in the winter. There was 
 some of the bottoms that had some tall grass, but it was not com- 
 mon. 
 
 As to changes I have noticed in the natural vegetation in the 
 valley between Wichita and the State line, first came in a bunch 
 grass that grows in a thick bunch; then came a great deal of 
 blue-stem; that grew eight or ten feet tall sometimes; then a 
 thicker and heavier grass in the bottoms came in. Those have been 
 the growth of the later years, and they seem to follow the first 
 
 675 blue-stem that would follow the breaking. 
 
 During the eleven years from 1830 to 1861 1 saw the valley 
 between Wichita and the State line every year, and sometimes three 
 or four or five or six or fifty times a year, as the case might be. 
 During those years I was on the Arkansas river I knew the valley 
 practically two-thirds of the time. I saw the river, because I was 
 fording it often. In my employment as hunter for the trains I gen- 
 erally kept pretty close to the valley. There were plenty of Indians 
 at that time, and they were hostile, and it was dangerous to get 
 back from the train. During those eleven years I crossed the river 
 very often. I probably crossed it in those eleven years twenty 
 
 676 times a year or more from Hutchinson west, especially west 
 of Dodge and Garden Cit}D It was mostly in there where the 
 
 trail was close to the river and where, when I was a scout for the 
 cavalry, most of our crossing came in. 
 
 677 The bridge at Hutchinson was a very long bridge, one of 
 the longest in the country. 
 
 Since 1860 the river does not spread out over the surface so much 
 now as it did then, by one-third. My judgment is that up to the 
 State line it has been a good deal in the same proportion, although 
 not so much farther up. The banks have filled in and narrowed. 
 During those eleven years from 1850 to 1861 when we were crossing 
 the river it would generally be in places up to the axle of the wagon 
 in crossing with a train ; but I mean not during any flood, but dur- 
 
356 
 
 THE STATIC OF KANSAS VS. 
 
 ing reasonable weather when we felt safe to ford it, as we did 
 
 678 a good share of the time. It would be something like com- 
 
 ing up the axle of the wagon. To-day at Hutchinson there 
 
 is a large part of the summer that every bit of the water would run 
 through a six inch tile. There are times that you can cross there 
 without stepping in the water; that is at low water. During those 
 first eleven years there were times when you couldn’t ford the river. 
 There were times we had to lay by; we couldn’t get across. During 
 the last few years there isn’t near the same volume of water during 
 the season as there was during those earlier years. This diminu- 
 tion, I should say, was noticed first since 1885. It was noticed in 
 1886, 1887, 1888, 1889 and in there. It has been nearly sta- 
 
 679 tionary for the last few years. For the last seven or eight 
 
 years there hasn’t been much change. 
 
 I mean by the “ underflow ” the percolating water from the river 
 out through the soil at either side. There is unquestionably such a 
 flow as that known to this valley. If a man will dig a hole four feet 
 square, as I have done, away from the river, he can see it. He can 
 dig it a mile or two miles away. I have seen the fact of this under- 
 flow tested in this way : A few years ago there was a great hullabaloo 
 about the underflow, and we were trying to prove this was the best 
 country on earth, because God didn’t send the water down from above 
 but sent it up from below, and as a real estate man I was interested 
 in that, and I was proving my proposition. I have observed 
 
 680 that at various points some distance from the river there was 
 a flow that came towards the river after you strike the water. 
 
 You would dig down from four to six or eight feet and you would 
 strike water flowing in, and if you dropped some light material in 
 it would seem to float across to the opposite side of the hole. The 
 current of the underflow from the river was away from the river; 
 it would continue until it struck some obstruction — hard land or 
 something — that threw it back. 
 
 The North Ninnescah valley is thirty-five miles from the 
 
 681 Arkansas river. Between that and the Arkansas river there 
 is a heavy line of hills. From 1887 or later springs began to 
 
 fail — later than that, rather. Wells began to fail in that valley ; 
 they began to have to dig them deeper. Places where men had 
 fished from year to year had dried up and knew the fish no more. 
 Many pastures of which I had charge that had springs in them 
 dried up and failed entirely in water. It has been a little better for 
 the last two or three years, but I laid it to the fact that the under- 
 flow left the Arkansas river up by Dodge City, and, percolating 
 through those sand hills, came in back through the Ninnescah 
 valley, which it could do without striking any high or hard land, 
 but if it got below Dodge City it couldn’t have gotten over there. 
 The river bends near Dodge City and flows to the northwest for some 
 distance until it reaches Great Bend. The high land south of the 
 river at Dodge City is made up of sand hills, which I can remember 
 when they were bare, white sand, and my idea is that those sand 
 
thh: statu: of Colorado ft al. 
 
 357 
 
 hills didn’t hinder the flow, and that it got in below there and 
 
 682 came down in this valley. The current of the underflow is 
 not exactly parallel to the flow of the river. 
 
 (Objection.) 
 
 It flows the general direction of the river, but of course obstruc- 
 tions or anything throws it one way or the other to a certain 
 
 683 extent. Asa general rule it follows the general direction the 
 river may be flowing. 
 
 (Objection.) 
 
 I have observed changes in the height of that underflow during the 
 last few years. We have had some drive wells and we found in the 
 wells a change in the height of the water from two to four and in 
 some cases as much as six feet. In driving wells in the valley we 
 have found that we have had to drive deeper than we formerly did, 
 to the extent, on an average, of three feet. This condition goes 
 pretty nearly across the valley, as far as my experience goes. Up 
 and down the valley I couldn’t speak further than from 
 
 684 Hutchinson a dozen miles west, and north and south thirty 
 miles. The general belief has been, and it is my belief, that 
 
 the lowering of the underflow, has affected the production of corn 
 lands particularly. 
 
 (Objection.) 
 
 This belief is founded on the experience of several years, and the 
 cause is the dropping of the underflow. The advantage of the un- 
 derflow as it was during the first years to the growing crops was 
 that in those years we had no general “ firing ” of fields. 
 
 (Objection.) 
 
 685 During the first years I was here the corn got its moisture 
 in this valley from below, mostly. We didn’t have our rains 
 
 as we have them now. We had one or two heavy rains during the* 
 season and then we had no more rains for a year. The corn mostly 
 had to get its moisture from below. Now our rains come gradually 
 and slow and sometimes more than we want. I consider that the 
 falling of the underflow has affected the certainty or sureness of a 
 corn crop in this valley. 
 
 Cross-examination. 
 
 By Mr. Dawson : 
 
 I don’t think the rains in the valley of late years have been 
 
 686 more in volume, but better distributed. If better distributed, 
 that is an advantage to the country. I don’t think that the 
 
 corn crop has fallen off in its productiveness per acre more than 
 other crops. In the valley lands the wheat has fallen off more than 
 corn. Undoubtedly there are places where the valley lands are im- 
 
358 
 
 THE STATE OF KANSAS VS. 
 
 proved by having the water removed a little farther from the sur- 
 face. A number of years ago I was interested in taking affidavits 
 for the Santa Fe railroad of corn and wheat crops. We got a good 
 many wheat crops that went as high as sixty bushels to the 
 687 acre, a thing we couldn’t do now. We got those affidavits 
 for advertising purposes for the Santa Fe. We were careful 
 to get the facts. Those affidavits were to be used by the Santa Fe 
 in advertising the advantages of the lands in Kansas along 
 
 689 the line of the Santa Fe road. We took them I think nearly 
 fifteen years ago. I have seen statements of crops in papers 
 
 of late years showing that the crops were not so good, but as to what 
 information the statements were based upon I have no knowledge. 
 
 I have been in the real estate business for a number of years and 
 have been a little addicted to getting out booklets advertising 
 
 690 the advantages of my locality. In these booklets I have not 
 called attention to the falling off in the productiveness of 
 
 Kansas land. That is not what the booklet was gotten out for. 
 The crops throughout the part of the Arkansas valley with which I 
 am acquainted are very much more diversified now than they were 
 twenty-five years ago. There are many crops raised here that 
 
 691 could not be raised twenty-five years ago. Considering the 
 value of the crops, the lands in the Arkansas valley with 
 which I am familiar are much more productive in dollars 
 
 693 and cents than they were 25 years ago. 
 
 Twenty years ago there was practically no alfalfa grown in 
 Sedgwick or Reno counties. They raise a large amount of alfalfa 
 now in those two counties. It is a productive and profitable crop. 
 They ordinarily make about three cuttings a year, aggregating from 
 five to ten tons per acre. The alfalfa crop has not been tested to see 
 whether it has been hurt by the subsidence of this underground 
 water. I know something of the growing of alfalfa but not a great 
 deal. I believe it is true that the crop is better if the water 
 
 694 don’t come too close to it. Where we have a good stand of 
 alfalfa it is as remunerative as a good crop of corn on the 
 
 same acreage. Quite a quantity of land which was formerly in corn 
 has been converted into alfalfa land. I have noticed on lands where 
 the corn crop had grown less in later years good alfalfa had been 
 produced afterwards. We have reached some different markets 
 since fifteen years ago. The prices brought by farm products are 
 not as great as the} 7 were fifteen years ago ; that was a period of de- 
 pression, as you are aware. If prices were at the same level 
 
 695 fifteen years ago as now, the acreage in cultivation in Sedg- 
 wick and Reno counties would produce as much in dollars 
 
 and cents as it would then, taking into consideration the diversi- 
 fied crops, because there is double the amount in cultivation. 
 There is nearly or double the amount in cultivation in Reno county 
 that there was fifteen years ago. The idea is this, as I understand 
 your question : You asked me if the crops fifteen years ago would — 
 if the crops now would not bring as much as they would fifteen years 
 
THE STATE OF COLORADO ET AL. 
 
 359 
 
 ago. Well, there is double the area now that there was fifteen years 
 ago. 
 
 Q. I mean acre for acre, considering the diversified crops. 
 
 A. Yes, considering the different vari-ties of crops. 
 
 Q. Then with the diversification of crops that you now have the 
 putting in this piece of ground the sort of crop that suits it, and in 
 another piece of ground the sort of crop that suits it, the land 
 
 696 in these last two named counties is just as valuable from a 
 productive standpoint as it was fifteen years ago, is it not? 
 
 (Objection.) 
 
 A. Yes, sir. 
 
 The hot winds in this part of the State are not so prevalent now 
 as they were in the early times. I can’t say what has caused the 
 change. The ’not winds used to endanger the crops quite materi- 
 ally. We don’t have nearly so much trouble from that cause of 
 late years. 
 
 The rainfall is better distributed throughout the season for the 
 growing of crops than formerly. 
 
 697 Q. You have more dews now and fogs than you had in the 
 early days, do you not? 
 
 A. Somewhat. I don’t know as we have more dews, but more 
 fogs, and that in itself is an advantage to the crops in this part of 
 the State. Any fog is an advantage to the crops. In the western 
 part of the State the change 1ms not been to the same extent as here. 
 For instance, last year, you go as far west as Larned and Great Bend, 
 for seven consecutive months it didn’t get a drop of rain. 
 
 I don’t know as I can give the width of the valley in some of its 
 narrowest places. There are places where the valley comes down 
 to a width of two miles or even less than that, but we are pretty 
 well west in the State when we come to those extremely narrow 
 places. 
 
 698 I have a notion that there is underflow under this second 
 bottom in places, about the same level as the water on the 
 
 first bottom. I never ran any levels to ascertain the level of the 
 water; it is merely a matter of the eve and general reputa- 
 
 699 tion. I dug holes at different times, some considerable dis- 
 tance from the river bank, and found that the water came in 
 
 from the river. The water came in nearly parallel with the river, 
 but not entirely. I didn’t intend to say in my examination in chief 
 that it came directly across. I wish to say this, that where there is 
 a bend in the river below or above it comes down parallel with it, 
 and generally where it comes directly from the river it may come 
 down diagonally. For instance, if the river is running east and 
 west the flow is not north and south directly ; the flow would be 
 nearly east and west, but possibly not directly east and west. 
 
 700 It varies somewhat by the hardness of the land or anything 
 that may lie between. The only experiments I have made 
 
 have been by simply dropping in a little piece of wood or something 
 
360 
 
 THE STATE OF KANSAS VS. 
 
 to see where the flow was going. The reason I wanted to know was 
 because we were proving we had an underflow in the Arkansas 
 valley. Iam not busy doing the same thing now ; I haven’t done it 
 for some years. We were advertising the underflow then very 
 
 701 much ; we haven’t done it very much lately. It is generally 
 accepted now. Generally, these holes were below the wind 
 or below the effect of the wind ; they were supposed to be. 
 
 702 There was one veiy dry year between Wichita and the 
 Colorado State line between I860 and 1860 or 1861. I don’t 
 
 know where or when, and I can’t place it. My memory is that 
 there was one year that was extremely dry and the water was ex- 
 tremely low, but I would not wish to place it exactly. During that 
 year there were miles along the river at different places where there 
 was practically no flowing water in the river — very little at least. 
 I wouldn’t say that in the year 1860, the year before I went into the 
 Army, the Arkansas river was practically dry from Witchita to the 
 Colorado State line, and yet I wouldn’t say that it was not. 
 
 703 There was one year that there was practically very little 
 water in the river. That year people travelling up and down 
 
 the river sank holes in the sand of the river to get water at different 
 places. 
 
 (Objection.) 
 
 It was not uncommon, however, to sink holes in the edge 
 
 704 of the river to get clear water. In 1874 I think there was no 
 time but what water would come up to the hubs in crossing 
 
 at Hutchinson. I lived south of the river there and we used to ford 
 it. We had one or two very dry years in the 70’s, but not entirely 
 dry. I don’t recollect that the river was dry in places between 
 Wichita and the Colorado State line. We didn’t have years in 
 which the water was practically as low as it has been during the 
 last five or six years. 
 
 The sand hills that I have spoken of are quite common along the 
 river in Kansas. Sometimes they are adjacent to the river, not 
 generally, but farther back. On the north side they are farther 
 back than on the south side. On the south they come up pretty 
 close in places. On the south side they would be within a mile 
 of the river in places, and on the north generally two or 
 
 705 three or four miles. They were evidently made by the blow- 
 ing sand, but I couldn’t say where the sand came from. It 
 
 is very nearly the same kind of sand you find in the river bed, 
 In places these sand hills are a long distance from the river, 
 as much as forty miles away. These sand hills were con- 
 stantly changing up to a few years ago until they got cov- 
 ered with vegetation. Next year there would be a sand hill a mile 
 from where it was last. We have several of those rows of sand hills 
 diagonally across the river. They don’t follow the trend of the 
 river. The sand hills along the Arkansas river don’t always 
 707 follow the trend of the river. They don’t always keep ap- 
 proximately near to it. In my opinion the sand hills 
 
THE STATIC OF COLORADO ET AL. 
 
 361 
 
 through Hamilton and Kearney counties uniformly follow the course 
 of the river along on the south, although I am not exactly conver- 
 sant enough with that at the present time to be positive. 
 
 708 If I said that we found the underflow was away from the 
 river, I meant it was away from the river that we found the 
 underflow, and not flowing away from the river. I didn’t 
 
 709 conduct any of these tests as to wells myself ; it is mere hear- 
 say. I have knowledge from my own personal examination 
 
 that the water level has fallen, because I have put wells deeper on 
 land. We have to put down our drive wells lower than we 
 
 710 did twelve years ago, in the same place. It is my under- 
 standing that this underground water is supplied by the 
 
 711 river. I don’t think that it is true that the level of the water 
 in wells on the uplands and second bottom lands shows higher 
 
 the last few years than it did fifteen or twenty years ago. I don’t 
 think they strike water at the same depth in the same locality on 
 the uplands to-day, because we find on the uplands our land pas- 
 tures have gone dry. Fifteen years ago we had. water in them. I 
 don’t know as the river has any influence on the underground 
 waters which lie under the surface of the upland. I have not 
 noticed in going up and down any correspondence with the river 
 on the uplands, but I think there is less water under the ground on 
 the uplands to-day than formerly. I have explained in my direct 
 examination my reason for thinking that those lands south of the 
 river, those uplands twenty miles away, had given out, — that pos- 
 sibly the flow at Dodge City might have went back of the sand 
 hills and went down about there and that the water might 
 
 712 have come from there. I may be wrong. It is my idea from 
 my observation of the country there at Dodge City, where 
 
 these sand hills are south of the river through Hamilton and Kear- 
 ney counties, that there is a great loss of the river out to the south 
 through the sand hills. I have always accepted the gospel that this 
 underground water in the valley lands in this and Reno counties 
 comes from the river. Every man has shouted this gospel for a 
 good many years. It was a belief of the real estate men and 
 
 713 newspapers. Your theory is, if it comes out from the river 
 when the river is high, it moves back toward the river when 
 
 it is low, and that probably may be correct. It will drain to the 
 lowest point, naturally. 
 
 I should say that those lands have been as high in value for the 
 last five years as they ever were for any five-year period since 
 
 714 I have known the country. They got the lands in Sedgwick 
 county all under occupancy and use within the last three or 
 
 four or five years. There was much less land in ploughed crops 
 prior to 1885 than during the last five years, and there is some more 
 timber. It is a generally accepted theory that the run-off of water 
 into the river would be much less with a large area in ploughed 
 crops than it would be when it was in grass lands. Until the 
 ploughed ground is saturated it takes up more water than grass 
 
362 
 
 THE STATE OF KANSAS VS. 
 
 land. For an ordinary rain or reasonable flood the ploughed land 
 would be a benefit in taking up and holding back the water. We 
 have been wading around in our parlors raising our furniture for 
 the last three springs in Hutchinson, a tiling we never did before. 
 The water didn’t come from the river; it just simply fell on the 
 ground and flooded us out. The rains were local. 
 
 715 The first bridge was built at Hutchinson back in the 70’s. 
 Prior to that time we forded the river. We could ford it on 
 
 716 a horse or with a wagon the greatest part of the year — oh, any 
 time. The bridge we now have over the river at Hutchinson 
 is one-third shorter than the first bridge that was built there. 
 
 718 The bridge we have now was built fifteen years ago. I should 
 think that from fifteen to seventeen years ago the river was 
 
 just as large and had as much water in it on an average as it had in 
 former years. I think when they put in the big bridge, if you want 
 to get tlie facts of it, I think there was a little real estate advertise- 
 ment that did it, that being the longest bridge in the State, and also 
 they reached out beyond where they thought there was any possi- 
 bility of the flood going around it. I was in the legislature when 
 the second bridge was put in, and we didn’t give them money 
 enough to build it as long as they wanted to. I cut the appropria- 
 tion down from fifty thousand dollars to twenty-two thousand dol- 
 lars. 
 
 719 The bottom lands are very much more valuable than the 
 uplands. The bottom lands are fruit lands. We have some 
 
 of the largest orchards in the world down near Hutchinson. There 
 is one orchard of over a thousand acres. They generally plant the 
 orchards within four or five miles of the river, and only one 
 
 720 side of the river seems to do well ; that is the north side. The 
 general idea is that the water comes nearer the surface on the 
 
 north side. The river there has a slightly south trend and it is 
 general-} 7 believed that it catches more water on the north side. 
 
 721 Redirect examination. 
 
 By Mr. Ashbaugh : 
 
 There are no marshy lands as we know “ marshy,” or as it is un- 
 derstood, that I know of, in the Arkansas valley. I cannot under- 
 stand how for general purposes an} 7 land would be benefited by 
 lowering the underflow. I think there are some pieces with the 
 original underflow as it was known that are better now for alfalfa 
 simply because the underflow was too close to the surface for 
 
 722 alfalfa. Alfalfa takes a deeper root and does better when it 
 goes a little further for water. There is not probably a 
 
 great amount of that character of land in the whole valley. Alfalfa 
 is not yet a large crop in the valley; it is a good deal grown, but 
 it is not by any means a leading crop. The productiveness of the 
 land in the valley has been affected concerning corn crops. The 
 
THE STATIC OF COI-ORADO ET AL. 
 
 363 
 
 change has been detrimental. It has been detrimental to vegetables 
 raised in the valley. 
 
 Q. Now, you speak about the price of land being higher. State 
 why it is higher in this valley now than it was thirty years ago. 
 
 A. The price of land in the valley is no higher in propor- 
 
 723 tion on the upland than it was thirty years ago. It is simply 
 the increase of population and the increased demand for farm 
 
 lands and the increased knowledge they have got for profitable 
 farming for this part of the country. 
 
 Markets have had a good deal to do with it. For instance, on 
 our apple crop, we have cold storage in our local markets now that 
 make it very valuable. The land might be more profitable to farm 
 and yet not as productive for certain lines of crops. 
 
 The purpose we had in sinking holes in the edge of the 
 
 724 river was to get clear drinking water. It would become 
 clear in the hole while the river would be surging and very 
 
 muddy. I don’t mean to say nor to have the conclusion drawn 
 from it that at the time these holes were dug there was not any 
 water in the river. 
 
 (Objection). 
 
 In the western part of Reno county there is one of the longest 
 ranges of sand hills. They start in Stafford county and run into 
 Reno and run nearly due south away from the river for twenty 
 miles. Their whole trend is away from the river. There is another 
 range of sand hills that takes in across the south side of Reno that 
 follows near the line of the Rock Island railroad and goes nearly 
 to Dodge. In some places they are quite a distance from the 
 
 725 river. I never had any idea that these sand hills were formed 
 from the sands blowing out of the river bed. 
 
 Q. From the location and construction of them would you say that 
 that was a possibility ? 
 
 A. No, I would not. There is another range of sand hills begin- 
 ning south of McPherson and running west until you get past Great 
 Bend. They gradually draw nearer the river all that way. Start- 
 ing in some twelve or fourteen miles from the river, at Great Bend 
 they are not over a mile, I think, from the river, or something like 
 that. 
 
 The connection between the underflow and the flow of the river 
 is shown, I think, because in high water or in the high season the 
 underflow is higher. 
 
 (Objection.) 
 
 726 The underflow regularly follows the rise and fall of the 
 river. 
 
 The fill along the river at Hutchinson was made by grading up 
 to the bridge. The present bridge is much higher than the old 
 one. It was graded up and filled in to get off and on the bridge. 
 This fill is an approach to the bridge. That is all the fill there is 
 
364 
 
 THE STATIC OF KANSAS VS. 
 
 there. This fill was not for the purpose of narrowing the banks of 
 the river. 
 
 727 The storm that caused the flood of 1904 was a rain storm 
 that started in near Lyons, northwest of Sterling, and Cow 
 creek there was six or eight feet out of its banks. The Ar- 
 
 728 kansas river didn’t get out of its banks at Hutchinson. 
 
 728 G. N. Dickson, Wichita, Kansas. 
 
 Direct examination. 
 
 By Mr. Ashbaugh : 
 
 I have lived in Wichita since 1885. I am in the real estate busi- 
 ness now. In 1887, 1888 and a part of 1889 I was secretary* and 
 manager of the streetcar company. My connection with the street 
 car company ceased about the first of June, 1889. 
 
 The first span of the Douglas Avenue bridge was taken out after I 
 quit the road in June, 1889. 
 
 729 A. B. Caldwell (recalled), Wichita, Kansas. 
 
 Direct examination. 
 
 By Mr. Ashbaugh : 
 
 I am acquainted with the reformatory located at Hutchinson. 
 The reformatory is located upon the north west quarter and the east 
 half of the northwest quarter, the southwest quarter and the south- 
 east quarter of section 19, and the south half of the southeast quar- 
 ter of section 18; all in township 23 south, of range 5, west of the 
 sixth principal meridian, in Reno county, Kansas. The bill locat- 
 ing the reformatory was passed fifteen years ago, and work began 
 upon it immediately. The State of Kansas has been in possession 
 of these premises for fifteen years. 
 
 Arkansas City, Kansas, August 22-23, 1904. 
 
 731 R. A. Patton, Arkansas City, Kansas. 
 
 Direct examination. 
 
 By Mr. Smith : 
 
 For the last three years I have lived at Arkansas City, Kansas, 
 and before that time and since 1882 I lived on a farm four 
 
 732 miles north and four miles west of Arkansas C i ty r . I was 
 farming there, and my land was second bottom. It was about 
 
 a mile and a half from the river. During the years I lived on this 
 farm I crossed the river quite frequently. In the early years we 
 crossed by ferry. The ferry was established when I went there, 
 
THE STATE OF COLORADO ET AL. 
 
 365 
 
 and ran, I think, eight or ten years afterwards. After I got 
 
 733 there they built a bridge and the ferry was discontinued. 
 During the 80s you couldn’t ford the river at that point at 
 
 all. I never did. I never forded it at all at any time. The river 
 was not nearly so wide in 1890 as it was when I first went there. 
 It got smaller. When that ferry ran there it ran from one bank to 
 the other; that is, the banks would not be full, but the ferry boat 
 ran from one bank to the other. As to the width of the river, I 
 never measured it. I should think it was between two and 
 
 734 three hundred feet. Oh, more than that; that many yards. 
 I don’t know. It was a wide river — that many yards, maybe. 
 
 Since 1891 or 1892 it is not so wide as when I first went there ; that 
 is, in low water. When the river is up there is just as much water 
 as there ever was, but when the river is lower it goes down a good 
 deal lower than it used to. At any season of the year now when 
 the water is low it gets very much lower than it did in the early 
 days. I don’t think the river is much over one-third as wide now 
 as it was in the early days — not much over. I can’t state when I 
 noticed that the flow of the river was diminishing ; I noticed in the 
 pastures when the water got away from me; but I should 
 
 735 think it was along about 1890 or thereabouts. I couldn’t 
 tell exactly. My farm is at a big bend of the river. The 
 
 river is north of me and west of me and south of me, and then there 
 is a creek runs right across here called Spring creek. In high 
 water when the water was high there would be an island in there 
 practically, but when the water goes down this Spring creek would 
 turn the water out there until I think Spring creek was pretty 
 nearly on a level with the water in the Arkansas river at that time, 
 so that this creek came in under the farm and damaged it some, 
 and I made a pasture across that end of it and run my stock down 
 there. It was half a mile from my house. My cows or colts 
 
 736 or anything I was not using I put down there. There was 
 plenty of water in there, and there was fish in that little 
 
 creek when I first went there, and it got weaker and weaker until 
 finally there was no water except in two or three holes on 
 farm. And later on the water disappeared in those holes entirely. 
 Then I took a spade and I think I dug down eighteen inches and 
 the water came in there six or eight inches deep in that hole, and 
 the stock would kneel down and drink out of that hole. Later on 
 the water disappeared there. Then I went and dug deeper down, 
 I should think possibly two and a half or three feet, and I didn’t 
 come to any water. You* couldn’t get to it any way, and I had to 
 abandon the pasture. There was no water at all. I think the dis- 
 appearance of the water in these holes was about the same time when 
 the flow of the river was diminishing. As the water in the river 
 went down the water in these holes went down, and I think the water 
 ir. these holes stayed on a level with the water in the river. 
 
 737 When the river went down the pastures dried up. 
 
366 
 
 THE STATE OF KANSAS VS. 
 
 Cross-examination. 
 
 By Mr. Hayt: 
 
 I came here from Michigan. I lived in that State prior to 
 
 738 coming to Kansas about seventeen or eighteen years. I prac- 
 ticed dentistry and medicine there. While I lived there I 
 
 noticed a huge growth of population in the immediate vicinity of 
 where I lived. I lived in the city and didn’t notice any diminution 
 in the water in the streams as population increased. When I first 
 came to Kansas I located on this farm that I have spoken about. I 
 farmed a place above here — raised wheat principally, and 
 
 739 very little corn — five or six acres, probably. I said that when 
 I first went there the river was two or three hundred yards 
 
 wide, as near as I could designate it. I never measured it nor fig- 
 ured on it at all. During high water this spring there was more 
 water than ever before. It is only in times of high water that I no- 
 tice a diminution. The dry season here has changed. When I first 
 came to this country we used to have a June rise here. We thought 
 it was from the snow in Colorado. But in the last few years we 
 didn’t have those rises like we used to have them, and the dry sea- 
 son usually in the river now is about July, August and September. 
 This season especially it has been raining all the time, but from 
 usually the first of June until September we had a big river here. 
 From some cause or other that has disappeared, and we do 
 
 740 not have those big rivers like we used to unless we have rains 
 as we have been having. I never forded the river in those 
 
 days, but I have seen others try it and have seen them get a wagon 
 box washed off the wagon and get in trouble. I have seen them 
 ford the river when they didn’t get in trouble. I rode across with a 
 man once when the] didn’t have much trouble. I rode across 
 it once myself on horseback, and coming back I didn’t go exactly 
 in the right place and got off the track, and swam my horse. I 
 lived a mile and a half from the river, where I could see it. I never 
 saw but two wagons cross, and one got across all right and the other 
 didn’t. 
 
 741 I think we have more rainfall now than we used to have 
 during May and June, and it is more equally distributed 
 
 thruughout the season. 
 
 This ferry I spoke of was a flat bottom boat. They had a large 
 rope stretched from one side of the river to the other, tied to big trees, 
 and the boat ran on a pulley on this rope. I should think the boat 
 drew about five or six inches of water and would carry four horses 
 and a large wagon, loaded. The landings were not built out. There 
 was a bluff on the west side of the river and they dug a place down 
 for the wagons to go up. On the east side they built out a sort of pier 
 in very low water, only a little ways out. At that ferry when we 
 built our bridge there one side of the river bed was rocky and 
 
 742 the rest was sand. I should think this bridge bottom was ten 
 or twelve feet above the bottom at the ordinary level. 
 
THE STATE OE COLORADO ET AL. 
 
 367 
 
 Spring creek was northeast of where I lived, seven or eight miles, 
 off in the Tannehill district. It is eight or nine miles long there, 
 that I know of, and maybe longer. The creek comes in from the 
 east and it runs I should say within twenty-five or thirty rods of 
 the river; then it turns and runs due south and empties into the 
 river, and that leaves a bottom here about four miles long 
 
 743 and three miles wide, and that, during high water, will be 
 practically an island. This creek has three or four bridges 
 
 on it, and the water got so high that it ran over the bridge this 
 spring. That creek gets high when it drains off up there, whether 
 the river is high or not. I don’t believe that the creek bottom has 
 filled in. I believe it is just as deep on my place as it ever was. It 
 is all farming land up above me. 
 
 In growing wheat I always rely exclusively on the rainfall 
 
 744 for the raising of crops. As to the other farmers in this 
 vicinity, we differ. Some of them claim that corn roots go 
 
 ten or fifteen feet into the ground, but I never found them down 
 there. I call it a crop with a shallow root, but we don’t agree on 
 that. 
 
 This bridge is approximately two or three hundred yards in 
 length. The approach on one side was built in about a hundred 
 feet, but on the west side it ran right against a bluff or rock 
 bottom. 
 
 745 I couldn’t tell whether the water during the winter months 
 is less or more now than formerly. My land is on the east 
 
 side of the river. There is a bank or a high place on the west side of 
 me, between my farm and my neighbors. My neighbors have some 
 of what we call second bottom ; then it drops down possibly eight 
 or nine feet to what we call first bottom. Mine falls back towards 
 this creek, which is the second bottom — falls east. Theirs slopes 
 west. There is a kind of ridge down through there about the cen- 
 ter. This second bottom land of mine, is about eight or ten feet 
 above the first. 
 
 746 Redirect examination. 
 
 By Mr. Smith : 
 
 The approach to the bridge was not made in the channel of the 
 river itself ; it was out on the bank. This bridge was built about 
 1890. 
 
 747 P. H. Franey, Arkansas City, Kansas. 
 
 Direct examination. 
 
 By Mr. Ashbaugh : 
 
 I have lived in this city since 1880, mostly in the city, and on the 
 east side of the river. The river makes a bend right near this City, 
 
368 
 
 THE STATE OP KANSAS VS. 
 
 and after flowing past the city south it bends east and then 
 
 748 goes a little north, and then it winds and goes south again. 
 It flows east from the city about eight miles. Arkansas city 
 
 is located in this bend of the river. 
 
 I came here in 1880 and began to construct the canal in 1881. 
 It begins above the city about two and a half miles and runs through 
 Arkansas City and empties into the Walnut. The Walnut 
 
 749 is a stream east of the city ; it flows south and empties into 
 the Arkansas river about two and a half miles southeast of 
 
 the city. This canal is about four and a half or five miles long, 
 flowing through the west part of the city and to the south 
 
 750 and east and empties into the Walnut about two and a half 
 miles above its mouth. The original canal was dug in 1881, 
 
 and was extended, I think, in 1886 or 1887, by digging a canal up 
 from the old head-gate through the bottom. It was fifteen feet wide 
 in the bottom, with a one and a half foot slope. In some places we 
 had to cut eight or nine feet deep. It was dug, I suppose, for water 
 power, to run the mills that were constructed after the canal 
 
 751 was built. The Arkansas Milling Company and some plan- 
 ing mills are there now. There was a wind mill factory, a 
 
 chair factory and a corn mill run by this water power. These are 
 all I think of now. (Objection.) The electric light plant is located 
 at the foot of the canal, and there is a foundry down there 
 
 752 which gets its power from the canal. (Objection.) I think 
 the first one of these mills or manufacturing establish- 
 ments was completed in 1882 and got its power from the canal. All 
 of these establishments that I have referred to were supplied with 
 water power from the canal. The pump mill was put there in 1882, 
 I believe. Then the next one was put there afterwards by Mr. Hill, 
 and this was added to by the Arkansas Milling Company. Later, 
 
 Mr. Speers built a mill there. Then came the planing mill. 
 
 753 Next, I believe, was the chair factory, a mattress factory, a 
 wind mill factory, and the electric light plant. I would say 
 
 that the electric light plant was built about 1888. The canal is about 
 a mile from the Arkansas river at its farthest point and runs some- 
 what across this bend to the southeast. It empties into the Walnut 
 rather than the Arkansas in order to get the greatest fall. 
 
 754 The water from the canal empties into the Walnut first and 
 
 then into the Arkansas river below the mouth of the Wal- 
 nut. 
 
 I remember the ferry across the Arkansas river, and crossed it in 
 1880. I think I saw it first in November, and the river was about six 
 hundred feet from bank to bank and the stream that I crossed on 
 the ferry was about two or three hundred feet. The average flow 
 of the river during the last five or ten years prior to 1904, exclud- 
 ing the months of May, June and July, as compared with the flow 
 of the river during the first ten years that I knew it, has been 
 diminishing. Last year we had plenty of water; it was an 
 
 755 excessively wet year, the wettest known to me. We were 
 
 seriously affected by floods here in the first of July, 1904. 
 
THuj stAtE of coLokaOo Et aL. 
 
 869 
 
 (Objection.) The water in the canal has diminished as compared 
 with the amount of water in the canal during the first ten 
 
 756 years. (Objection.) This diminishing of water in the canal 
 was noticed about 1887, and we had to dig new channels to 
 
 let the water come into the mouth of the canal from the river; that 
 is, the water had subsided in the river so that we had to go out and 
 dig a new channel to let it into the mouth. This has been repeated 
 at two different times. I dug it twice myself; the first was about 
 1886 and the other was a year or two later. The last one, I think, 
 was along in December. The result of our digging was that we got 
 more water, in fact the water had failed to come into the mouth of 
 the canal as it originally did. 
 
 When I first graded that canal I could sink a barrel in the bottom 
 of the grade anywhere in the lower parts of the city and get drink- 
 ing water. I could sink a barrel down right here west of us and it 
 would come up about two-thirds on the barrel. Last fall I had 
 occasion to dig down on the line of the canal and found no 
 
 757 water on top of the rock at all ; before that I could find 
 water there. The lower part of the city near the river was 
 
 underlaid with water from the river. 
 
 I have been street commissioner of Arkansas City for about ten 
 years; 1 was appointed in 1886 or 1887. I have had occasion to 
 notice in digging ditches or sewers or wells or cellars whether the 
 water level has changed since those early days. In about 1887 or 
 1888 I dug a ditch to drain the slough in the west part of the town 
 here, and for my level I generally took the top of the water by 
 digging down so far and I would keep my grade close to the 
 
 758 top of the water. I would dig down to the wet sand and would 
 follow that for my level. In 1904, before the high water I 
 
 went over the same ditch and didn’t find the flow of water that I did 
 then. The water level has lowered. (Objection.) I should think 
 it had gone down three feet anyway. 
 
 I think it was in 1880 that I saw a boat coming down the 
 
 759 river at Gueda Springs, which is about seven miles up the 
 river from here. I don’t know where the boat started from ; 
 
 it didn’t land at Gueda Springs, but continued on down the river. 
 It seemed to be loaded with something, but I don’t know what. There 
 was another boat here, but I never went down to look at it. 
 
 760 (Objection.) I was busy at the time. It was generally talked 
 that there was a steamboat here at the mills, but I didn’t 
 
 see it. (Objection.) The name of that boat, as I understood it, 
 was the “Aunt Sally.” I think it was in 1886 or 1887. I 
 
 761 knew about a man by the name of James Hill ; I think he 
 
 was a stock owner in that boat, and he was the projector of 
 
 this canal. I built this canal under his supervision ; and I think 
 he erected the first flouring mill here. This is the Arkansas City 
 Milling Company now. (Objection.) 1 believe he was the 
 
 762 president or superintendent of the canal and of this first 
 
 mill. They used a steam boat at that time to ship the 
 
 24 — 7 
 
370 
 
 THE ST\TE OF KANSAS VS. 
 
 products of their mill, and I suppose they had railroad transporta- 
 tion. 
 
 During the last years, excluding 1904,1 don’t think the flow of 
 the Arkansas river has been near as much as it had been for the 
 first five or six years that I knew it. 
 
 I don’t know of any other boats beiug here. 
 
 Cross-examination. 
 
 By Mr. Dawson : 
 
 I never saw but one steamboat, that which I saw up there by 
 Gueda, coming down the river, around here. I never saw 
 
 763 that boat come back. It was a small boat, I think, about 
 forty feet long. She is not the same boat as the “Aunt 
 
 Sally.” I never saw the “Aunt Sally,” and all I know about the 
 boat being here is the statements of others. The “Aunt 
 
 764 Sally ” never came back here, so far as I heard or saw. I 
 have never seen any more produce being shipped from these 
 
 mills by boat, but I have heard of some barges — flatboats. It was 
 along in May, I think, that I saw this boat passing at Gueda. In 
 the early ’80s, we had what we call the spring rise, along in June, 
 as a general thing. We had more water at that time that I 
 
 765 speak of than there is to-day anywhere. We can find times 
 now when boats could go down the river, but there would be 
 
 trouble in sending such a boat down this year sometimes during 
 the summer. 
 
 The slough I spoke about is on the west side of the town, on the 
 same side on which the Arkansas river is located. The town lies, 
 really, between the Arkansas and the Walnut rivers. Draw a line 
 across on Chestnut avenue from one river to the other, and they 
 are very nearly two miles apart. Except for the rise than the town 
 is built on, the ground between the town and the Arkansas 
 
 766 river is lower than it is on this street (Fifth avenue). It also 
 falls off toward the Walnut river. This slough is about a 
 
 mile and a half long and runs parallel with the river and between 
 the town and the river. It was about the lowest ground you would 
 find between the town and the river. 
 
 The water level has fallen, according to my investigations, on 
 the low part of the town, on the west side, toward the Arkansas 
 river. I drained this slough in 1887, I think, and I think that the 
 water level of the bottom lands between the town and the 
 
 767 river is lower than it was then, except this year. We drained 
 this slough into a sand bank down at the river, which let it 
 
 gradually go into the river, for the purpose of getting away some 
 water which was standing down there. Tins draining work dried 
 up a good deal of ground. Down along the bank of this canal and 
 within two or three hundred feet of where I used to use the barrel 
 to get water to drink, when we were digging the canal, there was a 
 cellar or basement dug for a mill right on the bank of the canal a 
 
THE STATE OF COLORADO ET AL. 
 
 371 
 
 few }^ears ago, and they went down to bed rock there and 
 
 768 found no water. I expect our drain has worked pretty well. 
 When I sank this barrel out of which I got the water in the 
 
 immediate vicinity of this slough the slough hadn’t been drained. 
 My experience in late years after I had drained the slough and they 
 went down in the vicinity of the barrel to get to the bed rock was 
 that they found no water. I didn’t sink any holes or make any in- 
 vestigations which threw any light upon the water level in this 
 vicinity at any other place than west of the town and between the 
 town and the river, and I didn’t drain any other sloughs or natural 
 depressions in the land except this one I spoke about. That slough 
 was the natural drainage for the surface water than ran off this 
 ridge on which the town is situated and the country lying between 
 the slough and the river. When it would rain the waters on the 
 ground on each side of the slough would run into the slough, and if 
 it were a hard rain they would sometimes get high enough 
 
 769 to run out at the lower end before we drained them. The 
 lower end of the slough was not low enough to drain all the 
 
 water out and it would leave standing pools, and we corrected that 
 by putting in a drain or lowering the slough at the lower end so 
 that when it rained it would carry all the surface water out and 
 didn’t leave any in the ground — didn’t leave any pools. After we 
 had done all this and then sunk holes in the ground we found that 
 the water didn’t come as near the surface as it used to. 
 
 This canal that I speak of was built about 1881 to 1887, and I was 
 foreman on it. Its head was in the east bank of the Arkansas 
 
 770 river, and the first head-gate was right close to that. We had 
 to cut quite an opening on the bank of the river where the 
 
 water was taken from the river. This was cut through sand on the 
 bank and some surface sediment. We put in a dam to turn the 
 water into the head of the ditch, made of brush, rock, mattresses, 
 etc. We had lots of trouble with it ; it washed out, and when it 
 would wash out we had trouble in getting water in the canal and 
 would have to put in another dam. We continued to do that until 
 we changed the point of the head-gate. They put in a crib dam at 
 that place, filled with rock, which is there yet. After they put in 
 this crib dam for a while we could get water in our head-gate. 
 
 771 I think the Arkansas river at that point during almost all 
 the periods of the year carries a great deal, of sand and earthy 
 
 material in it, and I expect that this sand has filled up back of the 
 crib dam considerabl}\ I suppose as it filled up that must have 
 raised the bed or bottom of the river on which the water flowed, and 
 it also throws in sand and material into the head of the ditch, be- 
 sides what blows in. An island formed above the head of the ditch 
 in the river after this crib dam was built. Originally the 
 
 772 main channel of the river, after the crib dam was put in, ran 
 on the west side of the island. As the water would rise in 
 
 back of the dam it would come over to the east side. There was an 
 outlet into the canal there. This was partially the purpose of build 
 
372 
 
 THE STATE OF KANSAS VS. 
 
 ing the dam. After the island was formed there was water on both 
 sides of it. I laid the trouble in getting water into the head-gate 
 after a number of years to the filling up of the sand in the river. 
 
 I went about a mile up the stream above the original head- 
 
 773 gate and put in another head-gate. We got more of a head 
 of water that way. There was a dam put in away above the 
 
 new head-gate about a mile, I guess, so as to throw the water into 
 the canal. They dug a ditch above the head-gate and left an over- 
 flow by the gate, so that the bead-gate is about a mile from the point 
 where the ditch actually takes its water out of the river. There 
 was a dam put across at the point where the ditch takes the water 
 from the river, and this ditch now heads right above that dam. 
 That new ditch continues to furnish water for the canal but the 
 water gets scarce at the mills occasionally during the sum- 
 
 774 mer. I don’t know of any time in the last ten years when 
 the canal has taken all of the water flowing in the river, but 
 
 I have seen it when the water was very, very scarce in the river. 
 
 Most all these mills were built between 1882 and about 
 
 775 1887 or 1888. There was quite a boom along in those years. 
 We have gone along gradually since then. There has been 
 
 a new mill built that was destroyed bv fire and was rebuilt within 
 the last five years. It is a grist mill — flouring mill — and uses water 
 for power, and in late years they are using steam sometimes; 
 
 776 they get out of water. This big mill has put in steam, and 
 the electric light plant has put in steam. I don’t know 
 
 whether there are any other things that took water since 1890 that 
 didn’t take it before that time. 
 
 There are some ice gorges here in the canal in the winter. That 
 has a bad effect on the running of the electric light plant when they 
 are working on the water. The big mill put in steam be- 
 
 777 cause she didn’t have sufficient water to run it. I have seen 
 where they had to shut down for want of water ; that was in 
 
 the summer, I think. In the winter sometimes we have very little 
 water in the river now, if any ; the canal takes it nearly all. That 
 was not true when the canal was first built. I should say 
 
 778 that the flow has dropped off about one-half in the winter 
 months, and about the same for the summer flow after July 
 
 779 and during the early fall. The company moved the head- 
 gate of this canal up the river, I think in 1887. That was 
 
 not a di^ year. The water in the river was not so low as I have 
 seen it since. The ditch had filled up or something had happened 
 so that we couldn’t get the water out and we made up our minds to 
 go up above to get it out of the river. It is not true that this canal 
 has become larger by reason of washing than it was when it was 
 constructed, But on the contrary it was filled up. They don’t clean 
 it out each season, but they take out some obstructions occasionally. 
 
 In 1880 the river was about two or three hundred feet wide where 
 I crossed it up here about Gueda. There was a ferry there too, and 
 
THE STATE OF COLORADO ET AL. 
 
 373 
 
 one down here. The ferry boat at Gueda was about thirty 
 
 780 feet long and ran on a cable. It was a flat-bottom boat and 
 when loaded with a couple of teams or three or four it would 
 
 draw about a foot, probably. They got it across the river by run- 
 ning it on a cable and letting the current drive it, and they had no 
 bridge. In 1880 or 1881 I crossed the river down here near Ar- 
 kansas City and there was no bridge at that point, but there was a 
 ferry. That was below Chestnut avenue, west of here. There is a 
 bridge on Chestnut avenue now near where the ferry was. I should 
 say the stream was a couple of hundred feet wide there when 
 
 781 I first knew it. I have never seen anybody ford it there, but 
 I tried it mj'self on horseback, and came out swimming. 
 
 That was along about May, and the river was a little on the rise. 
 I think that during the dry season it was fordable there in 1880, 
 1881 and 1882. The river has always been fordable at points near 
 here during the dry season, as far as I know. 
 
 There are four bridges across the Arkansas river in the neighbor- 
 hood of this city, and two across the Walnut. The bridge that is 
 near where the ferry used to be is about five hundred feet 
 
 782 long and I think it was built about 1887 or 1888. 
 
 The river along the west side there at the point of the Chest- 
 nut street bridge has filled up considerably since 1880. There are 
 sand bars and brush growing on it. The channel itself is not as wide 
 as it was in the ’80s. by one-half, in the dry season. It is a little over 
 a hundred feet wide now, because there is more water. Ordinarily 
 there are little narrow channels you can almost step across some- 
 times in dry weather in the vicinity of the bridge. 
 
 Cross-examination. 
 
 783 By Mr. Campbell : 
 
 The boat that I spoke of on this river that came from the north 
 years ago I think I think was in 1880 or 1882, somewhere along 
 here. It went down the river. It was a steamboat. We 
 
 784 had the Santa Fe railroad in here then I think. The Mis- 
 souri Pacific, the ’Frisco and the Santa Fa railroads are here 
 
 now. I didn’t see the boat called the “Aunt Sally.” It was loaded 
 here and went down the stream, but never came back to m} r knowl- 
 edge. It was loaded at the mouth of the Walnut, at the canal here, 
 as I understand it. That was below where the dam now is. This 
 canal is simply a mill race to furnish water for power purposes for 
 these concerns. No boats ever ran on the canal. 
 
 There are six bridges across the Arkansas river near here — two 
 railroad bridges and four wagon bridges. They are eight to twelve 
 feet above the surface of the water. I assisted in putting in 
 
 785 this obstruction in the river to turn the water into the canal. 
 
 I couldn’t tell } r ou what authority they got from Congress 
 or from the War Department for that purpose. I couldn’t say 
 
374 
 
 THE STATE OF KANSAS VS. 
 
 whether any authority or officer of the War Department ever com- 
 plained of that obstruction in the river. 
 
 The county put in the wagon bridges across the river, and I don’t 
 know whether the county ever obtained any permission or sought 
 any permission from Congress or the War Department to put those 
 bridges across the river. I don’t know as these bridges are much of 
 an obstruction to navigation at present. As a matter of fact, this 
 river is not navigable here at the present time through these 
 bridges. As to whether the river was navigable in the sense 
 
 786 that boats could be run on it before these bridges were put in 
 depends on how big vour boat is. I have seen steamers that 
 
 wouldn’t go up, and I have seen some that would, but not at all 
 times of the year. 
 
 Cross-examination continued. 
 
 By Mr. Dawson: 
 
 I think I made this drain here in the slough in May some time. 
 It was along in the summer. The Santa Fe railroad was in here 
 at the time when the “Aunt Sally ” was said to have been loaded 
 here, and I don’t know whether there was any more or not. I was 
 working for Mr. Hill at that time and he was connected with the 
 milling company. I don’t know whether just prior to that time 
 there had been any complaints about freight rates bv the mill peo- 
 ple or Mr. Hill either in or out of here. The electric light 
 
 787 plant has lately put in steam ; they were using water all of the 
 time until lately. I couldn’t say whether they have used the 
 
 water also, since they put in steam. I don’t know whether the 
 price of fuel is less now than it was fifteen or twenty years ago. 
 
 When the Walnut river gets up high enough to back up on the 
 canal, it injures the usefulness of the canal for power purposes and 
 they can’t run the mill. When the Walnut river is very high 
 neither the mill nor the electric light plant can get power from the 
 canal, and they couldn’t have gotten it this season during the flood. 
 If they had been relying on the canal entirely the electric lighting 
 in the city would have been without any power until the 
 
 788 water went down ; that would have been four or five days, or 
 six, the last flood this season; that was about July; and 
 
 almost every year there are times when the Walnut gets up high 
 that way. Even when it doesn’t get high enough to absolutely take 
 the power away I suppose it gets high enough to diminish the power 
 very materially and that occurs generally every year, that is, after 
 the water gets to a certain height I suppose it does. 
 
 Recross-examination . 
 
 By Mr. Campbell : 
 
 At the place where this dam or obstruction is when the water is 
 low, there is a fall, I think, of about seven or eight feet below. The 
 dam is made of logs, brush and stone. 
 
the static of Colorado et al. 
 
 375 
 
 Redirect examination. 
 
 By Mr. Ashbaugh : 
 
 789 The steam power was pat in these mills six or seven years 
 ago because they could not have power enough without it. 
 
 It was because of lack of water in the Arkansas river. (Objection.) 
 
 Well, there has been one or two times, one time especially,’ I have 
 stepped across the Arkansas river when the water was flowing. It 
 has gotten practically dry during the dry season of the year here* 
 lately. 
 
 The water level that I spoke of being lower in town and at this 
 slough extends back probably two or three hundred feet. 
 
 790 The only reason I could give for the water level becom- 
 ing lower is that the water sank away That is all I know. 
 
 791 Taking just the flow of the river in the condition it was, 
 the flow was sufficient here so that I have seen a pretty fair- 
 size steamboat pass, but not by the city since the bridges 
 
 792 were put in. (Objection.) During the first years that I knew 
 the river, during the greater portion of the year, there was 
 
 sufficient water in the Arkansas river for small steamers to navigate 
 the river. (Objection.) 
 
 The bridges I have been speaking about had no draws in them. 
 
 I never saw but one steamboat going up and down the river. 
 
 793 The Arkansas river ist>f shifting sands. The channel changes 
 pretty often. I don’t know as it changes daily. I think 
 
 whenn the water falls the channel changes more than when the water 
 is high. 
 
 Redirect examination. 
 
 794 By Mr. Dawson : 
 
 At the time I stepped across the river the canal had been con- 
 structed and it was below the head or mouth of the canal and it was 
 within the last four or five or six years. The canal at the time was 
 taking out water, running its usual head. One of the bridges I 
 have spoken of is below the main portion of the town. 
 
 796 Johnson Keller, Arkansas City, Kansas. 
 
 Direct examination. 
 
 By Mr. Smith : 
 
 I live nine miles south of Arkansas City, on the river. I have 
 two hundred and forty acres of land, eighty acres of it being bottom 
 land and the balance of it second bottom, the second bottom being 
 about twenty-two feet higher than the first bottom. I bought it in 
 the winter of 1884 and 1885. I had owned both bottom and uplands 
 
376 
 
 THE STATE OF KANSAS VS. 
 
 prior to that near Wichita. From the time I bought my land 
 
 797 down to 1890 my principal crop was corn and potatoes and 
 such things. 
 
 As to productiveness, my bottom land growed well and gave satis- 
 factory crops. On the bottom land I didn’t depend entirely upon 
 the rainfall to make a corn crop; it seemed to make a corn crop 
 without much rain. Being close to the water, it kept the crops alive 
 and matured them, and back on the upland they were burned up. 
 I should judge that there was fifty ner cent, difference between the 
 productiveness in corn on the first and second bottom lands, 
 
 798 taking one year with another. The bottom lands were sell- 
 ing about double what the uplands were selling for. My 
 
 experience was that the bottom land produced the best crops. I 
 had had experience in Sedgwick county, and I owned both high 
 and low lands, and I found there was a big difference between bot- 
 tom lands and uplands in production. The fact is that I quit rais- 
 ing corn about six years ago, because it didn’t mature; it burned 
 up. I raise now nothing but wheat, it matures before the drought 
 commences. I had to make this change because it didn’t pay to 
 raise anything else. I couldn’t raise corn successfully. This change 
 in productiveness on the bottom lands as to corn became noticeable 
 between 1889 and 1891, somewhere along there. 
 
 799 I have noticed the flow of the Arkansas river as any per- 
 son would living right along thefe. I noticed it going down 
 
 and getting lower all the time. When I first settled there, when 
 this bridge went out down here, there would be a whole summer we 
 couldn’t cross down there, when I first went there in .1884 and 1885. 
 I remember one time when this bridge was out five or six months. 
 Only just occasionally could we cross the river, there was so much 
 water in it. Since then there has been no difficulty in crossing the 
 liver any place you wanted to down below me. You could cross 
 almost any place. I should say the diminution is close to fifty per 
 cent, difference in the height of the water. It is my judgment 
 
 800 that the flow is not more than one-half as big now as it was for- 
 merly. I noticed the diminution as soon as my crops began 
 
 to fail. The crops began to fail about the time the water in the 
 river began to go down. (Objection.) 
 
 I had three springs on my farm, strong, running springs, when I 
 went there, and they kept going. From about 1889 or 1890 they 
 commenced lowering. Two of them fed a natural fish pond that 
 covered about an acre and three quarters that we rode around in 
 with boats, and we stocked it with fish of different kinds and it sup- 
 plied us with fish the year round, and all the neighborhood. 
 Well, it kept sinking away. One of the springs went dry entirely. 
 It didn’t show any coming out of the surface, and the two springs 
 that fed this pond kept going down and down until they went dry. 
 The fish all died in the pond. There must have been eight 
 
 801 or ten wagon loads of fish in there when it went dry that 
 year. I think that was in 1890. It was the year the Chero- 
 
THU STATE OF COLORADO KT AL. 
 
 377 
 
 kee Strip opened, which was 1891. There is no water in that pond 
 now. There have been immense rains in the hills this year and 
 the springs are running, a little weak. These springs are about ten 
 rods from my dwelling. When I first went there I got the water 
 from the spring, but on account of the distance, I sunk a well, 15 
 feet. That was the second year after I went there. There seemed 
 to be plenty of water in it. It lasted for two years. It kept going 
 down and down, and I sunk it deeper, and it kept on until I went 
 about thirty feet before I could get the same amount of water I did 
 at fifteen feet in the same well. 
 
 802 I don’t know just what the relative value of bottom land to 
 upland now would be, but it is not considered in the same ratio 
 
 as it was then. I myself would avoid buying the bottom land, with 
 the experience I have had, even at the same price as good upland is 
 selling for. When I came here the bottom land was the most valu- 
 able for the crops it raised. I bought it on account of its greater 
 production, but I would avoid what we call first bottom land now. 
 My land runs right up to the river, about nine miles below Arkansas 
 City. There is an island right near my land and about half of the 
 river is on one side and half on the other. The channels of 
 
 803 the river from bank to bank, I can’t see but they are just the 
 same, practically, as they ever were, but the volume of water 
 
 sinks down so that it is a long way from what I call the channel or 
 the banks. (Objection.) The year I bought this place I undertook 
 to drain this pond out. I thought it could be drained into the 
 river, but I found it was too expensive, and I thought I could 
 
 804 dig a basin and let the water run into it, but I would dig 
 down four or five feet and come right onto a bottom of water 
 
 there, and that was pretty u early level with the water in the pond. 
 I dug right down and it just came up and I found there was no use 
 in trying to drain it in that direction. You can’t find water there 
 in dry seasons of — but I don’t know how deep that wafer is, but I 
 have never been able to find that water so close to the top of the 
 ground since that in all the digging I have done. 
 
 Cross-examination. 
 
 By Mr. Hayt : 
 
 I came from the State of Illinois to Sedgwick county, Kansas, in 
 1876. In Sedgwick county I raised corn, wheat and oats. 
 
 805 We had, I think, two droughty years. There were no such 
 droughts as we have experienced since, but there were two 
 
 806 years of drought while I lived up there. We raised very 
 good corn, but what I call droughts is shortage of crops. 
 
 I moved down the river in the fall of 1884. I didn’t own any 
 land in 1884 and didn’t see the river that year. I have never kept 
 any statistics of the amount of water in the river at any time. 
 
 807 I never made any memoranda of the stages of the water in 
 the river. I never measured it in any way, even by putting 
 
378 
 
 THK STATIC OF KANSAS VS. 
 
 sticks in, only by the depths of the oars when I would be rowing 
 across with a boat. I can state definitely that the water is lower 
 now than during the first two or three years that I was on the 
 river. This year it has been pretty high, a little too high for the 
 good of the country. 
 
 Where I planted corn when I first moved down here I think corn 
 had been raised for ten or twelve years on the same land, 
 
 808 maybe longer. It was an old farm, and had been farmed a 
 good many years, and that seemed to be the best land for 
 
 raising corn when I bought it. I have found out by a long period 
 of years in farming that if all the corn stalks and all the things that 
 grow on the land is turned over you can farm it a long time without 
 fertilizing it, and you have never seen its equal in this country or 
 in any country I have ever been in, whereas if the stalks are all 
 taken off and burned it will deteriorate. That is my experience 
 through life. There has got to be something left on the ground or 
 will deteriorate. In this country they generally take it off in some 
 wav — either feed it to the cattle or take it away. They take off all 
 they can get as a rule. 
 
 809 Down near my place I should say the river banks are about 
 eight or ten feet above the bed of the stream, probably a little 
 
 more. It runs level right back to the first bank — the second 
 bench — then it rises up gradually, bench after bench, until it gets 
 up higher, west of us. That spring I speak of seems to come 
 
 810 right up at the foot of the rocks. In the early times I put a 
 piece of stove pipe up and it ran the water up about one foot. 
 
 As the springs began to go down we had to lower that, and lowered 
 it until we had to sink a tank in it. That is all the way we can retain 
 water now for the stock, whereas the little trough would water over 
 a thousand head of cattle a day and have plenty in the early times. 
 This spring is near the bluff bank, or near the commencement of the 
 second bottom. I don’t think the second bottom would run 
 
 811 over ten feet above the first bottom. Now, from my level to 
 get the distance in the well, I think the second bottom isabout 
 
 twenty-three feet above the first bottom. That is what we made it 
 on a level from that spring, and as you go westward it gradually 
 rises. The second bottom is probably 160 rods wide, then we come 
 to a rough, broken tier of land. It is about the usual run of lands 
 in this section of the country. That gradually sloped down toward 
 the spring. These springs are about ninety rods from the river, I 
 should judge; they are on higher land than the bed of the river, 
 and higher than the water in the river at an ordinary flow, I should 
 judge. 
 
 812 I never completed that drain that I have spoken of, because 
 it was too expensive. I abandoned it. The water disappeared, 
 
 and it is not necessary to go to any further expense in draining. I 
 commenced this drain in the spring of the year, some time after corn 
 planting, probably in May or June. I have testified that I paid 
 
THE STATU OF COLOR ADO ET A L. 
 
 379 
 
 twenty-two dollars and a fraction an acre for this bottom 
 
 813 land. I have fixed the price for the bottom land and the 
 price for the upland, the two in conjunction, in making this 
 
 price. In my experience the bottom land would not be worth any 
 more than at that time, although land has advanced. To put it 
 back in the same state of improvements it was in when I took it, it 
 is not worth any more in conjunction with the other. I have im- 
 proved the upland ver} 7 materially so that I can’t make any com- 
 parison between the price as I got the land and what it is now. It 
 would be worth three times what it would be then with my orchard, 
 so that I could not tell just exactly what the ratio of value would be 
 at the present time compared with then. I have not put any 
 
 814 improvements on the bottom land. I have cropped it all 
 these years ; it has never been idle. I can’t hardly determine 
 
 whether it has held its own in price or not. It would be hard to 
 sell it for what I paid for it — very hard. In my judgment it is not 
 worth as much as what I paid for it, my actual judgment, with the 
 experience I have had. I will sell it to-day for $42 an acre 
 
 815 if anybody wants to come down and take it. I don’t think 
 this land is higher in value than it was at the time I pur- 
 chased it. We have had years when land values were awav up and 
 purchasers were abundant — boom years. But the boom was not 
 very bad the year I bought. Lands went up since a great deal 
 higher than they were then. I bought after the boom had busted. 
 I didn’t go to the highest point, quite, I don’t think. I think I 
 bought pretty nearly on the top of the bubble, if I remember right. 
 
 In the flood of 1904 my bottom lands were covered with water, 
 just about deep enough to run a little row boat over them. I 
 
 816 didn’t sustain any^ loss. The flood didn’t make me afraid be- 
 cause I have seen the lands flooded before. It overflowed 
 
 once twenty-seven years ago a little. At this time, in 1904, it over- 
 flowed a trifle more. It is a pretty hard question for me to answer 
 as to whether or not the flood of last year decreased the value of the 
 land or rendered the selling of it less profitable. From a 
 
 817 fertilizing point of view it has raised it, in my estimation, 
 considerably, because there is enough fertilizing in that to 
 
 last for the next ten years. I don’t know whether I could sell it as 
 readily now as I could previous to the last flood. I don’t try to sell 
 and don’t investigate the value of land. It is not- in my business 
 and I don’t hear anybody say anything about it. In 1903 
 
 818 we had a little flood. I have heard considerable about the 
 flood of 1877. In this country it was not as high, not by a 
 
 foot, as the flood of 1901. I have a standard of measuring that. 
 At high water mark this year the water covered pretty nearly 
 
 819 eighty acres of my farm. The average depth was about two 
 feet. When I first went there the average depth to water on 
 
 820 the bottom lands was about twelve to fourteen feet. When I 
 first purchased this land I didn’t rely entirely upon the rain- 
 fall for the growing of crops. I expected the bottom land to raise 
 
380 
 
 THE STATE OF KANSAS VS. 
 
 my crops without much rain, from the experience I had had in 
 Sedgwick county. I owned a good many farms, both bottom and 
 high lands. 
 
 I can’t say how deep corn roots usually go into the soil. They 
 will go pretty nearly to the water if they can’t find it in any other 
 way. It depends on the kind of soil. In sandy soil they go very 
 deep. In land that has a hard pan under it, it is a crop that grows 
 shallow, near the surface, as a rule, but in sandy soil I think you 
 can trace corn roots down six or eight feet, right, straight 
 821 down, but it has got to be very loose soil. This depth is not 
 very usual in sandy soil. In this locality the corn roots can’t 
 go down in the uplands, but in sandy soil they will go down. I 
 think my corn in the bottom lands got a certain moisture there 
 that it couldn’t get if it couldn’t go down. I don’t think the roots 
 would go down fifteen feet. 
 
 Redirect examination. 
 
 By Mr. Smith : 
 
 On the second bottoms it is about twelve or fifteen feet to water. 
 The second bottom is about 22 feet above the first bottom, 
 
 822 I should judge, without actual knowledge, from what little I 
 du£ in trying to open up this drain on the first bottom, that 
 
 we struck the underflow of water at about six or eight feet. The 
 soil of the first bottom is what is known in this country as a 
 
 823 sandy loam. I have dug down in wells right alongside of 
 wheat fields and I have traced wheat roots right down six 
 
 feet into the ground, by actual measurement. I can’t say where the 
 water came from that fed those springs, but the springs failed as 
 tiie water in the river lowered. The rainfall didn’t affect the flow 
 of the springs only as the river rises. It seems to come from 
 
 824 the river. I don’t regard my bottom land as worth any more, 
 if as much, as when I got it. If we got the sub-irrigation 
 
 now that we did in the early years it would affect the value of the 
 land materially, if it produced the same as it did the first five 
 or six years, and the experience I had in Sedwick county. The 
 value of the land then would be diminished as compared 
 
 825 with what it is now without the sub-irrigation. Lands in gen- 
 eral have advanced in price. The lands in the bottom of the 
 
 Walnut river in some respects are about the same as mine, but the 
 nature of the soil is so much different it won’t produce the same kind 
 of crops as mine. The falling off in the production in my bottom 
 lands I laid to lack of moisture and not to the fact that it had been 
 cropped from year to year. 
 
THE STATE OF COLORADO ET AL. 
 
 381 
 
 Recross-exa m i n a tion . 
 
 827 By Mr. Hayt : 
 
 1 mean it was six to eight feet to water on the first bottom and 
 twelve to fifteen feet to water on the second bottom, and the 
 
 828 second bottom was from twenty to twenty-two feet above the 
 first bottom, but where that water came from I don’t know. 
 
 The water in the springs might have come down hill. I can’t say 
 whether it came from the uplands. When I located down the river 
 from this point the second bottoms were cultivated in corn, wheat 
 and such things. The lands still farther back were cultivated but 
 very little. They were not farmed much at that period. They have 
 broken up a great deal of the land on both sides since then. They 
 have extended the acreage under cultivation. 
 
 829 Redirect examination. 
 
 By Mr. Smith : 
 
 On my first bottom lands at from six inches to plow depth you 
 would find moisture, and it kept getting moister and moister all the 
 way down. The ground was moist all the way down until you got 
 to the water. 
 
 830 John Myrtle, Arkansas City, Kansas. 
 
 Direct examination. 
 
 By Mr. Ashbaugh : 
 
 I have lived about two and a half miles south-west of Arkansas 
 City since 1883. I have been acquainted with the Arkansas river 
 since June, 1871, through Sedgwick and Cowley counties. 1 can’t 
 tell just what the average flow of the river was during the dry sea- 
 son for the first fifteen years that I knew it, but it was much 
 
 831 more than it has been of recent years. During the last five 
 or ten years during the dry season of the year, on an average, 
 
 832 it has been much lower, a great deal lower, than it used to 
 be. We haven’t near the water that we used to have along 
 
 in the ’70s and up until along in the ’80s. I live below the mouth 
 of the canal, and of course that makes some difference in the river, 
 but there are times that it scarcely flows — that is, an overflow. I 
 suppose there is an underflow ; but it scarcely flows at all. And a 
 good deal of the time I have seen it that way, fora number of years. 
 This diminution took place along about 1888 or 1889, somewhere 
 along there, I don’t know just exactly when. It seemed to be rather 
 gradual from some cause. Above the mouth of the canal the aver- 
 age flow during the last few years as compared with the aver- 
 
 833 age flow during the dry season the first years that 1 knew it 
 has been much less, from what I know. I am not as well 
 
382 
 
 TH K STATE OE KANSAS VS. 
 
 acquainted with the river above the canal as some, because I 
 haven’t frequented that part so much as below, but from what I 
 know I know it is less, and I am satisfied it is a great deal less. 
 
 Cr oss-e xamination. 
 
 By M r. Dawson : 
 
 Where I usually cross the river it is three or four miles below the 
 head of the canal. I have been on the river above the head of the 
 canal, but I don’t know how many times. I suppose I have 
 
 834 been there two or three times. But in coming to town from 
 my place I invariably cross the river below the canal. I 
 
 usually cross it on the bridge, but if the bridge is out of fix I cross 
 it on tlie river, but it is much more pleasant to cross on the bridge. 
 
 I commenced to notice the falling off of the flow of the water in 
 the river in 1888. I presume the canal was constructed about 1887. 
 They first built a dam, and then afterwards they built a dam 
 
 835 away above, some miles. I think the dam was moved up 
 the river after 1887 or 1888. When I first came here we had 
 
 to ford the river; we had no bridges. We sometimes ferried it. 
 The winter flow has been a great deal less for the last ten years as 
 compared with the first ten years that I knew the river. I should 
 say it was fully one-half less than when 1 first knew it, or more. 
 The summer flow has been nothing like the flow during the earlier 
 years, except, of course, during the floods. This season has 
 
 836 been an exception. In 1877 there was a tremendous flow in 
 the river — the flood year. I remember that 1874 was one of 
 
 the driest years we ever had on the river, but I was away in the 
 time of the high water in 1874. I was on the survey in the Indian 
 Territory. I saw the river probabl}^ in August, 1874. I don’t re- 
 member how I found it then. Of course it was pretty low — for I 
 know it was a very dry season — grasshopper year. 
 
 There is a good deal more of this country under cultivation now 
 than there was the first few years after I came here. There 
 
 837 were some of the uplands broke in 1871 when I came here, 
 but not a great deal. It was about 1874 or 1875 that we got 
 
 the craze here for breaking the country up, the fact that wheat sold 
 for a good price, $1.25 per bushel in Wichita, and we found we 
 could raise a good crop. This country and the country about 
 Wichita were both settled about the same time. I suppose Wichita 
 was a little first because they had a railroad there. They were near 
 a railroad. It is not a fact that a large part of the upland country 
 lying back a number of miles but which drains to the Arkansas 
 river was not put in cultivation until along in the later ’80s. This 
 was not true of the lands adjacent to this place. 
 
THE STATE OF COLORADO ET AL. 
 
 383 
 
 839 I. H. Bonsall, Arkansas City, Kansas. 
 
 Direct examination. 
 
 By Mr. Smith : 
 
 I live in Arkansas City, and came here on the 23rd day of July, 
 1872. I have been a photographer for several years, and previous 
 to that a civil engineer. During the time I have been here I couldn’t 
 help but observe the Arkansas river. I used to be down about the 
 river previous to 1884 a great deal. The average flow of (he river 
 in the dry season during the months of Jul\q August, September 
 and October, during the last ten years, as compared with the same 
 flow for the same months during the first ten years that I was 
 
 840 here is about one-quarter of the amount flowing to what it 
 used to be. Just previous to 1884 I was so situated that I 
 
 didn’t see the river at all for quite a while. I had a sick wife and 
 I had to stay very closely at home every spare moment I had. I 
 began to again notice the river about 1886 or 1887 or somewhere 
 along there. I am noticing it now every day — every little while. 
 I noticed it at one time when 1 was going with a man down across 
 the river here on a matter of business, and 1 says “ What is the 
 matter with this river?” I says “ There is nothing but a little creek 
 to what it used to be.” And the man says “ Why, it has been that 
 way now for a year or two.” That was about 1887 or 1888. (Ob- 
 jection.) 
 
 I wrote the article entited “ Navigation of the Upper Arkansas 
 River,” found in the Biennial Report of the State Board of Agricul- 
 ture of the State of Kansas, volume VI, for the years 1877 
 
 841 and 1878, on page 159. The article as it appears in that 
 volume was true at the time it was written. On the next 
 
 page (160) there is a cut from a photograph that I made of what 
 purports to be a steamboat — the “ Aunt Sally.” I have the photo- 
 graph in my pocket. (This is Complainant’s Exhibit A-6, intro- 
 duced in evidence.) The steamboat at the time the photograph was 
 taken was right east of us here in the Walnut river. It came up 
 the Arkansas into the Walnut from Little Rock under her own 
 steam. She made one trip and went back again. I was the 
 
 842 means of getting her up here. That steamboat landed here 
 on Sunday, June 30, 1878. I was the only one that got 
 
 843 the “ Aunt Sally ” up here. I had a scheme on hand to try 
 to make the Arkansas river navigable. The appropria- 
 tion was gotten entirely by me through letters to Ingalls, Ryan 
 and Plumb. I have got the letters down in my room somewhere, 
 but couldn’t find them. I was going to bring them up. Mr. Ryan 
 is the present assistant secretary of the Interior. He was a member 
 
 of Congress at that time representing this dictrict. The 
 “ Aunt Sally ” was, I guess, about 125 feet long. I have it 
 in that article. (Objection.) 
 
 854 
 
384 
 
 THE STATE OK KANSAS VS. 
 
 The said article is in words and figures as follows, to wit : 
 
 Navigation of the Upper Arkansas River. 
 
 The question of utilizing that vast, though ever changing current 
 of water, known as the Upper Arkansas river, flowing through our 
 State from west to southeast, making it a highway to a southern 
 market, lias been a living subject with the enterprising agricultural 
 people of Cowley, Sumner, Sedgwick and those counties lying along 
 and contiguous thereto, ever since the first settlement of that 
 
 855 fertile valle}^ in 1870. Owing to their remote distance from 
 a railroad or a market and the consequent cost of transporting 
 
 the vast surplus of wheat raised in Cowley and Sumner, has this matter 
 been of vital interest to the people living within their borders. 
 The subject has been discussed in the fields and in the grange; has 
 been the slogan of the country politician and the shibboleth of the 
 farmers. It has been resolved upon by conventions, petitioned for 
 by representatives and memorialized by our State legislature until 
 Congress has taken the matter under consideration, and appointed a 
 commission of competent engineers to personally visit, examine and 
 report on the feasibility of opening up the stream for navigation, 
 from some point near the terminus of the Wichita branch of the 
 Santa Fe railroad to Little Rock, Arkansas. 
 
 In view of these facts, a brief account of the local and individual 
 efforts to solve the problem will doubtless be of interest. During 
 the fall of 1875, A. W. Berkev and A. C. Winton of Cowley county 
 built a small flat-boat at Arkansas City, loaded it with flour and 
 started down the river bound for Little Rock. While they may not 
 have had the “unexplored wilderness ” that lay between DeSoto 
 and the dream of his ambition, or the dangers that beset Coronado 
 in his march of disappointment through undiscovered Kansas, to 
 encounter yet four hundred and fifty miles of an unknown 
 
 856 river, guarded by a semi-barbarous people, who have no par- 
 ticular good feeling towards a frontiersman, lay between 
 
 them and civilization, presented anything but a cheerful outlook for 
 this pioneer voyage. The trip was made, however, without adven- 
 ture and in a reasonable length of time. The produce disposed of, 
 the navigators returned overland to Arkansas City and reported a 
 fair depth of water and a lively current from the State line to Fort 
 Gibson. 
 
 On the strength of this report, a joint stock company was im- 
 mediately organized and an agent appointed to proceed at once to 
 the Ohio river and purchase a suitable steamer to ply between the 
 points named. A light draught wharf packet was procured and a 
 point known as Webber Falls, between Little Rock and Fort Gibson, 
 'reached on her upward trip. Here it was found that her engines 
 were of insufficient power to stem the current, so she was taken back 
 to Little Rock and there sold at a loss to her owners of twenty five 
 hundred dollars. 
 
THE STATE OF COLORADO ET At. 
 
 385 
 
 This failure temporarily dampened the ardor of even the en- 
 thusiastic commercial path-finders and nothing further was at- 
 tempted until the summer of 1878, when Messrs. W. H. Speer and 
 Amos Walton, two leading public spirited citizens of the county, 
 equipped a “ferry flat ” with a 10 horse-power threshing machine 
 engine, and by several trips up and down the river for a distance 
 
 857 of 60 miles from Arkansas City, demonstrated beyond a doubt 
 that a steamer could be successfully propelled on the Arkan- 
 sas river at any season of the year. The flat was fifty feet long, 
 sixteen feet wide and drew ten inches of water. This novel little 
 craft visited Grouse creek, the Walnut river, Salt City, the Kaw In- 
 dian agency, Oxford and other points along the river and attracted 
 crowds of people wherever it went. At Oxford a public reception 
 was tendered its officers and crew. These experimental trips were 
 all made while the river was at its lowest stage and prior to the 
 annual “June rise.” 
 
 Soon after this, and while the “ ferry flat” was still prominently 
 before the public, Mr. I. H. Bonsall, an experienced engineer and 
 prominent citizen of Arkansas City, corresponded with the business 
 men of Little Rock, and induced them to send a boat on a trial trip 
 to the upper country. 
 
 The little steamer “Aunt Sally,” a tug built for the deep, sluggish 
 bayous of the Arkansas, and used in the local cotton trade there, 
 was selected and manned for the purpose. Though not designed for 
 swift water, this crude little steamer made the complete voyage, and 
 in command of Captain Lewis and Baker, with Mr. Chapman as 
 pilot, landed safely at Arkansas City, and was moored there 
 
 858 in the Walnut river, Sunday morning, June 30th, 1878. The 
 officers reported sufficient water and a safe current for light 
 
 draught steamers for the entire distance, and expressed themselves 
 of the opinion that a boat built especially for the purpose could run 
 regularly between the two States every day in the year. 
 
 Soon after the “Aunt Sally ” returned south, Henry and Albert 
 Pruden and 0. J. Palmer of Salt City, Sumner county, started for 
 Little Rock with a “ ferry flat ” loaded with seven hundred bushels 
 of wheat. The wheat was sold at a good round figure, and the 
 gentlemen returned, reporting a successful trip and a good stage of 
 water. 
 
 On their return, the business men of Arkansas City, finding that 
 steam-boat owners in the lower country were not disposed to ad- 
 venture up so far with their boats, resolved to build a steamer them- 
 selves and with it make regular trips between their city and the In- 
 dian agencies at the Territory. After several attempts to find men 
 of experience to take the matter in charge, McCloskey Seymore 
 secured the services of Mr. Cyrus Wilson, who began the building 
 of a boat for the purposes named. Wednesday afternoon, Novem- 
 ber 6th, 1878, the “ Cherokee,” the first steamboat ever built in Kan- 
 sas, was successfully launched at Arkansas City. 
 
 The hull of this boat is 83 feet long, 16 feet wide on the bottom 
 25—7 
 
§§8 
 
 'THE STATE OF KANSAS VS. 
 
 and 85 feet long and 18 feet wide on the boiler deck, beam, 
 
 859 22 feet, with guards extending 2 feet around a model bow. 
 She carries two twenty-horse power engines, and with all her 
 
 machinery, draws less than eight inches of water, when loaded to 
 the guards, will not draw over sixteen inches. The shallowest water 
 found on the bars between Wichita and Little Rock, during the 
 lowest stage of the river, was eighteen inches. From this, it will be 
 seen that the “ Cherokee” will answer the purposes for which it was 
 built, and be of great service in transporting the supplies from these 
 counties to the Indian agencies lying south and east of Arkansas 
 City. 
 
 With the Arkansas river opened for navigation, and a good line 
 of boats and barges making regular trips between the points named 
 in this article, business of all kinds will receive a fresh impetus in 
 southern Kansas. There will be no railroad monopolies, no “ pool- 
 ing of earnings,” and no forming of combinations to affect the inter- 
 est of the producers. The farmers of this remote locality will then 
 have a highway of their own by which they can exchange their sur- 
 plus wheat, flour and corn for the coal and lumber of the lower 
 Arkansas. The advantages of this proposed line of commerce are 
 apparent and need not be repeated here. The attention of Congress 
 has been called to them, and we patiently await the official report 
 of its commission on the subject of navigating the upper Arkansas 
 river. 
 
 860 I was a passenger on the “Aunt Sally ” on that tri p part of 
 the way down, about fifty miles. At that time the Atchison, 
 
 861 Topeka & Santa Fe Railway Company was opposing the 
 plan of navigating the Arkansas river. The “Aunt Sally ” 
 
 was not built here. It was soon after the “Aunt Sally ” came up here 
 that they submitted the proposition to bond this county for $124,000 
 to build the railroad down here. The road was at Wichita 
 
 862 then. I saw one boat built here; it was called the “ Chero- 
 kee.” It was built and launched here, right across the river. 
 
 It was 125 feet long. It went down the river with a load of wheat. 
 She didn’t come back. About that time the railroad came through 
 here. There were some small flat-boats built here and went 
 
 863 down the river with loads. (Objection.) This was about No- 
 vember, 1878. There were several boats that were completed 
 
 up here. The Pruden boys had a claim right across the river, and 
 they put on several hundred bushels of wheat on a barge that they 
 built themselves and went down and sold the wheat below. I was 
 not with the?i, but I think they sold it at Little Rock. 
 
 864 Cross-examination. 
 
 By Mr. Hayt : 
 
 I have described all the boats that I saw on the Arkansas river 
 at or near this point, and I never saw one of them here after 1878. 
 I never knew one of them returning to this point after it had gone 
 
THE STATE OP COLORADO ET AL. 
 
 387 
 
 down the river. The article that has been shown me, from pages 
 159, 160 and 161 of the reports of the State board of agriculture of 
 the State of Kansas, was written by me, about three- fourths of it. 
 Afterwards it was changed by Wirt Walton, and then he, Walton, 
 claimed the credit for having helped to write it. The things 
 
 865 I wrote about were true at the time, but as to the matters that 
 Walton added, most of his statements were not statements 
 
 direct. They were flowery stuff that he put in there. He was em- 
 bellishing the article, putting on the finishing touches. He was 
 drawing on his imagination somewhat. I can easily pick out what 
 I wrote in it. 
 
 The Atchison, Topeka and Santa Fe railroad didn’t want 
 
 866 navigation on this river, but I can’t tell on oath what they 
 did to prevent it. We have every reason to believe that it 
 
 was the Santa Fe railroad that interfered with the project. We had 
 trouble in going down without a load. I think the pilot was under 
 the control of the railroad company. The pilot and the captain 
 owned the boat, and they were undoubtedly paid to go down with- 
 out any wheat in order to discourage the scheme of navigation. I 
 don’t know this of my own knowledge. At the time, this running 
 of boats up here was somewhat of a hobby with me. This boat that 
 I have spoken of went down empty. It went down without 
 
 867 any trouble whatever. It was another boat that had diffi- 
 culty in going down ; that was a boat that we built up here ; 
 
 we had no particular name for it. It was a ferry flat, and drew 
 about two and a half feet of water, and went down empty. 
 
 The “Aunt Sally” came up about July 1st, 1878, and we ran ex- 
 cursions up and down the Walnut at the time I took that picture 
 (referring to Complainant’s Exhibit A-6). The boat could 
 
 868 run up and down the Walnut now. There is water enough 
 there to run it now. It don’t rise in Colorado. We didn’t 
 
 bring the “Aunt Sally ” over in the Arkansas river next to the town 
 at any time. When they came up they entered the Walnut river; 
 they didn’t go up the Arkansas. This boat never came back 
 
 869 after it went down. The people shown as on this boat in this 
 picture (Ex. A-6) were simply on the boat to enjoy them- 
 selves in riding up and down the Walnut river. It had nothing to do 
 
 with the Arkansas river. The barge the Pruden boys built, 
 
 871 as near as I can recollect, was about 25 feet long and 16 feet 
 wide. Another barge, loaded with wheat, built by another 
 
 party, was about the same size. We called them ferry flats. These 
 ferry flats drew about four feet of water. I guess the Chero- 
 
 872 kee would draw only fifteen inches. About the time these 
 boats went down the Santa Fe railroad was built into Arkan- 
 sas City and there was no attempt to navigate this river after that 
 time that I know of. 
 
 I guess I am the father of the movement for getting appropria- 
 tions from Congress for the river. The scheme was not in politics, 
 and as far as I know it was not an issue in any of the campaigns in 
 
888 THE STATE OF KANSAS W. 
 
 which Tom Ryan was a candidate. The amount of that appro- 
 priation was $30,000, and it is the only appropriation that I can 
 recall. 
 
 Cross-examination. 
 
 By Mr. Campbell : 
 
 I don’t know that Congress appointed the commission referred to 
 in the article which has been put in evidence. I know some 
 
 874 engineers came out here after that and came down the river 
 in flats. They measured the flow and the width of the river 
 
 and calculated the water that was passing, and the current — the 
 speed of it — and made their report to Congress. I saw the men 
 when they were here. This was after I wrote the article referred to. 
 I know that that board made a report to Congress. I can’t remem- 
 ber the date. The substance of that report was favorable. 1 only 
 know this from letters that I would see at the time. I don’t remem- 
 ber whether I saw this report or not, but I saw a report communi- 
 cated to me from the engineers in charge of this work at Little 
 Rock. After that they spent fifteen thousand dollars between here 
 and Wichita, after this report was made, and after the appro- 
 
 875 priation was made. I don’t know as a fact that any appro- 
 priation was made by Congress after those engineers made 
 
 their report. 
 
 Redirect examination. 
 
 By Mr. Smith : 
 
 I had communications constantly with the engineer at Little 
 Rock in reference to the navigability of the Arkansas river. He 
 wrote to me and asked me to give him my idea as to the amount of 
 commerce we could furnish on the river that would be worth 
 
 876 while to make improvements. (Objection.) I wrote to the 
 county clerks and got that report and sent it to Congress. 
 
 (Objection.) It was after that that the $15,000 was spent between 
 here and Wichita. (Objection to introduction of Exhibit A-6.) 
 
 843 W. M. Sleeth, Arkansas City, Kansas. 
 
 Direct examination. 
 
 By Mr. Smith : 
 
 I have lived in Arkansas City for the last thirty-four years. My 
 business is looking after the land improvement company, the gas 
 and electric company, the street railway company and the water 
 power compan}'. I have been connected with the water power com- 
 pany ever since it was built in 1885. The water power plant con- 
 sists of a ditch and a dam and a tail-race that discharges the surplus 
 
THE STATE OF COLORADO ET AL, 
 
 389 
 
 water. The dam is northwest of the city about three and a half 
 miles, across the Arkansas river. We get our water for the canal 
 from the Arkansas river. The canal when it was first built 
 
 844 was about 15 feet wide on the bottom, with a slope of two to 
 one on the sides, but it is larger now in places. It furnishes 
 
 power for the flouring mills (objection) and the electric light plant, 
 the Kirkwood wind engine factory and then the chair factory. 
 The water plant furnished sufficient power for these mills and fac- 
 tories at that time. All of these that I have mentioned except the 
 chair factory depend upon the water power. The chair fac- 
 
 845 tory has not been operated for several years. There was a 
 planing mill, but it has been moved away. During the last 
 
 ten years there have been times when the plant furnished an in- 
 sufficient power to these mills. The electric light plant is running 
 nearly all the time; the flouring mill had to stop because of lack 
 of water to furnish power. I don’t believe any of the other plants 
 stopped for the same reason. The flouring mill is the one that con- 
 sumes the greatest amount of water power. 
 
 I have had occasion to observe the flow of the river from 1885 to 
 the present time. I have seen it almost daily. In the last ten years 
 as compared with what it was in 1885 there is a shortage. I 
 couldn’t say just how much. There has been less flow es- 
 
 846 pecially in the summer and fall months. The canal has fre- 
 quently carried the full flow of the river during the last seven 
 
 or eight years. It didn’t do it to mv knowledge in 1885. It has 
 been within the last ten years, I would sav, that we began to notice 
 the lessening in the flow of the river and the consequent decrease of 
 power in the plants. This was somewhere about 1890. I should 
 judge the flow of the river to be about one-half as large as formerly, 
 though I am not certain. I couldn’t tell. We are short of power 
 in this plant about one-fourth of the time, I should say. We sup- 
 plied this shortage of power by an engine there, or did until it 
 burned out a year or two ago, land we used that for the flouring 
 mill. 
 
 847 Cross examination. 
 
 By Mr. Dawson : 
 
 We moved the intake of the canal farther up-stream, I think in 
 1887. We did that because we thought it was a better place to 
 make the head-gate and dam there than we had below here. It 
 was rather hard to maintain the old dam, and we can maintain it 
 more easily where we now are. We have a rock foundation where 
 the head-gates are, and there is a bed rock across the river there. 
 After we constructed the canal in 1885 these various institu- 
 
 848 tions of which I have spoken commenced to take power. 
 They didn’t all come in at once. There were two large flour- 
 ing mills, and then the wind engine factory, and then the chair 
 factory, and then the two large flouring mills were merged or con 
 
390 
 
 THE STATE OF KANSAS VS. 
 
 solidated into one. We reached the maximum of power using in- 
 stitutions in about ten or twelve years, I should judge, after the 
 canal was constructed. It was about 1894 or 1895 that we got the 
 maximum. We had plenty of power for all these up to that time. 
 It was after that time that the power began to get short. None of 
 these concerns that I have spoken of quit using the power entirely. 
 They use steam also. The flouring mill uses steam part of 
 
 849 the time. It was the only one that used steam. It was the 
 largest consumer. It continued to use some water power. It 
 
 uses the water power whenever there is a sufficiency of water. The 
 water is generally sufficient in the summer. Sometimes the ice 
 interferes in the winter, but not very much. It was not on account 
 of the ice interfering that they put in the steam power ; I think it 
 was on account of the insufficiency of water. The ice don’t last 
 very long, only a short time, in the winter season. I don’t think 
 they ever used the steam power more than once in the winter season 
 on account of the ice. I don’t think they have got any steam in 
 now at all, but they did have it about I guess five or six years, up 
 to the time they burned down a year ago last June, and they haven’t 
 put this steam power in since, although the mill has been rebuilt, 
 and they are again relying on the water power. The electric plant 
 relies wholly on the water power. They are now putting in 
 
 850 an engine. It is not yet in operation. That is the electric light 
 plant that furnishes the city lights as well as the custom light- 
 ing of the town. There have been times when the ice bothered suffi- 
 ciently so that it would affect the lighting here in winter ; not very 
 long, but there has been a time or two, I think a night or two, per- 
 haps, in the season, that it might blockade, you know. You couldn’t 
 get the water through. 
 
 When the Walnut river is high it very much diminishes the 
 effectiveness of the canal for power purposes. It shortens the head, 
 and that is apt to occur during the spring or summer months. It 
 sometimes exists for a day or two at a time but not for weeks 
 
 851 at a time. I don’t think it ever, to my recollection, existed 
 for a week at a time. It has existed to such an extent as to 
 
 affect the lighting of the city, and we think that to be assured of 
 light at all times it is necessary to supplement this water power with 
 steam, and that is what we are doing, and the same is true of these 
 other institutions that have supplemented the water power with 
 steam. 
 
 I think the flow of water has diminished during the winter months 
 from December to March, both inclusive, during the last ten years, 
 as compared with what it was when I first knew it. The diminutiQU. 
 is about in the same proportion as in the summer months. 
 
THE STATE OF COLORADO ET AL. 
 
 391 
 
 Redirect examination. 
 
 By Mr. Smith : 
 
 During the first six or seven years that we were running that 
 plant the high water in the Walnut river affected it, if we had 
 852 any high water, I don’t know how much high water we had. 
 
 It diminished the heads. We had more water from other 
 sources, you know, than we afterwards had. The principal reason 
 for supplementing water power with steam was to have power to run 
 the plant. I suppose the shortage of water was the principal con- 
 sideration for supplementing with steam, more than anything else. 
 The shortage of water affected us for longer periods in the fall of the 
 year. The canal was dug, I think, in 1885. 
 
 878 L. E. Woodin, Arkansas City, Kansas. 
 
 Direct examination. 
 
 By Mr. Ashbaugh : 
 
 I have lived in Arkansas City continuously since 1890, and was 
 around here from 1882 to 1890. I was in the Indian Terri tor}', in 
 the Indian service, and at Winfield and other places, and was 
 
 879 here just off and on. My people lived here. During the 
 first ten years after 1882 the river sometimes was very deep. 
 
 I don’t think I ever crossed it when it was as low as it has been for 
 the last ten years. I crossed it a great many times because my busi- 
 ness was down here at the bridge, and I always forded it. The 
 average flow of the river during the last ten years as compared with 
 the flow during the first ten years has been considerably less. In 
 the early years I crossed the river repeatedly, and lately have seen 
 it constantly. I was acquainted with the canal when it was built 
 here. In 1890 I became assistant secretary, and two years after- 
 wards I was secretary of the Arkansas City Water Power Company, 
 up to February, 1901. The canal is, I think, about five miles 
 
 880 long, with a fall of 21 feet. It was built for the purpose of 
 running the water from the Arkansas river into the Walnut 
 
 to run the mills at the foot of the canal. The mills that were 
 built on the canal were : The Arkansas City Milling Company ; 
 the Roberts planing mill ; the Kansas Mattress Company ; the 
 Arkansas City Gas and Electric Light Company ; the Kirkwood 
 Wind Engine Company, and the Plummer Chair Company. (Ob- 
 jection.) They all used water power. Those that are left there are 
 using water power, except the milling company, which is using an 
 auxiliary steam plant during the dry season. Frequently 
 
 881 during the last few years they have had to use their steam 
 plant because of low water. I think we noticed the diminu- 
 tion in the flow of the river more materially along about 1893 or 
 1894. It seems to me that that is the time when we began to be 
 
392 
 
 THE STATE OF KANSAS VS. 
 
 alarmed about the shortage of water. Below the mouth of the canal 
 during the dry season of the year the Arkansas river has practically 
 no flow. We stop every drop from coming down. The canal varies 
 in width from twenty to perhaps thirty feet wide. It has a big cur- 
 rent. In the dry season it would take the entire flow of the Arkan- 
 sas river. We don’t let any of it go to waste. The falling off of 
 the water in the river affected quite materially the receipts 
 
 882 from the sale of power from the canal. (Objection.) It was 
 a material difference. 
 
 Cross-examination. 
 
 By Mr. Dawson : 
 
 I am now superintendent of the water works. I think the canal 
 has considerably more fall than the river at this point. I 
 
 883 don’t think I ever saw the river practically dry in the ’80’s. 
 We could ford it a good many times without swimming the 
 
 horse. At the lowest times it would come about up to the buggy bed : 
 at such places it would be about 200 feet wide, I presume, and 
 
 884 it would be nearly the same depth all across. My judgment is 
 that the falling off in the last ten years has been about one-half. 
 
 I never measured it. I wouldn’t swear to it. This does not apply to the 
 flow of the water in the river during the winter months. The river 
 seemed to be normal during those times. I have never paid very 
 much attention to it during the winter. I have paid much atten- 
 tion to it in the summer outside of the point where our canal comes 
 out. I put a fish -way in there. They compelled us to put the fish- 
 way in, but there was no water in the river for the fish to go up and 
 down. 
 
 When I spoke of the plants that were left using water I referred to 
 the fact that one burned down and one has discontinued. 
 
 885 There are three, and one has just moved up-town now. The 
 reason for installing auxiliary steam pumps was purely on 
 
 account of low water, not an account of the ice. The ice never 
 stopped running the plants very much. We would let the ice freeze 
 over, and the water would run under the ice. Sometimes the plants 
 using this canal were also bothered by the high water in the Walnut 
 river robbing the canal of its power. I don’t think this had had 
 any effect in bringing about the installation of the auxiliary steam 
 plant. The milling company was the only company that put in a 
 steam plant. It was the electric light plant and the others below that 
 were bothered with the back water to the Walnut. The water would 
 back up and there wouldn’t be water enough to cover the wheel.. 
 
393 
 
 THE STATE OF COLORADO ET AL. 
 
 887 Albert H. Denton, Arkansas City, Kansas. 
 
 Direct examination. 
 
 By Mr. Smith : 
 
 I live in Arkansas City, and was born three miles southeast of 
 this city in 1872. The farm where I was born cornered 
 
 888 about fifty yards from the river. It was bottom land. Dur- 
 ing those years I saw the Arkansas river frequently — I sup- 
 pose every day. The average flow of the Arkansas river during 
 the dry season — July, August, September, and October — for the past 
 ten years is not over a quarter as large as the flow during the same 
 months in the ’70’s and early ’80’s. We could go swimming in the 
 river during the dry season, or August and September, and the av- 
 erage depth of the river during those months in the ’70’s I 
 
 889 should think was two and a half feet. The average depth 
 now ivas not over 15 inches. During those months in the 
 
 ’70’s the river was never totally dry. We always expected high 
 water in June and always had it. Such rises are not often now. 
 In those days we crossed the river by ferry, by fording, and by the 
 bridge. 
 
 Q. How was it as to being forded ? Could you ford it anywhere ? 
 Answer. No, sir, not generally. 
 
 My father owned a farm there of about 600 acres, and in 1879 he 
 sold considerable wheat to a miller on the Walnut river, 
 
 890 about 2,000 bushels, and we boated it across the river, in a 
 skiff, in sacks, and hauled it to the mill. This was in the 
 
 first half of September, 1879. During the late years I don’t think 
 it would be possible to do that. I have seen people cross the river 
 on horseback at most all depths. I have seen them swim the river 
 and I have forded it myself when it was only medium size or bellv- 
 deep. I have seen the horses when they were forced to swim. It 
 wouldn’t swim a common fox-terrier dog the last few years during 
 the dry months, and especially toward the latter part of Septem- 
 ber. 
 
 891 I remember that in the ’70’s a well was put down on my 
 father’s farm. We got water then at a depth of 53 feet. 
 
 Later than that the well went dry. We put in a pump — drove it 
 down in the sand about six feet. Then the pump gave out and we 
 drove the point of the pump about ten feet farther down in the 
 sand and got a good supply of water. This was 16 feet lower than 
 the bottom of the first well. The well when we dug it first 53 feet 
 deep had about four feet of water in it, I think. It is on the 
 
 892 side of a hill, about half a mile from the river. 
 
 In the ’70’s bottom corn was always considered much better 
 than corn on the uplands, because of better land, and we thought 
 we had some benefit from the underflow from the river. I think 
 
394 
 
 THE STATE OF KANSAS VS. 
 
 the bottom land is better yet, but we haven’t as good crops as in 
 the early years. 
 
 Arkansas City is four miles from the Oklahoma line. 
 
 893 Cross-examination. 
 
 By Mr. Dawson : 
 
 I lived on the farm up to 1892. I am now 32 years of age. We 
 owned 200 aeres. All but thirty acres were bottom lands. 
 
 894 The house was on a slight elevation from the bottom land, 
 and the well was sunk near the house. 
 
 There was considerable high land back of us. This for a 
 
 895 distance drained toward the river, I presume for a mile and 
 a half back. In the ’70’s a portion of the high land was 
 
 under cultivation. There is more of it under cultivation now. I 
 presume that in the ’80’s it would reach the maximum, that is, the 
 general average. I think our house was 50 feet above the 
 
 897 river. When I speak of the first bottom I include lands 
 fifty feet above the river. I think the average height of our 
 
 bottom land was approximately 20 feet above the river. It was 
 the accepted notion that the underlying sheet of water was on a 
 level with the water in the river. 
 
 898 I think perhaps corn roots extend into the grouud wo as to 
 derive benefit from water lying twenty feet underneath it. I 
 
 don’t know how far a corn-root does go down. I understand that 
 alfalfa goes down 15 or 20 feet. I understand that if water is 20 
 feet under the surface of the land the moisture would come up 
 through the ground to quite a little distance by absorption. So far 
 as I know, the water level under this ground is the same as it 
 formerly was. 
 
 We are now raising more wheat than corn, and have about thirty 
 acres of first-class alfalfa. I know of one field in our neighborhood 
 that had corn on it, nothing but corn, for I think 22 years. 
 
 899 The neighbors said it showed deterioration by reason of run- 
 ning the same crop on it. My judgment is that it was worse 
 
 for wear. I am acquainted with the Arkansas valley through this 
 (Cowley) county, and I think on the average it is about a mile and 
 a half wide, the immediate first bottom. My estimate is that it is 
 from 15 to 20 feet above the normal flow of water in the 
 
 900 river. 
 
 I expect it is a fact that a ploughed field will absorb more 
 water than prairie or grass land. It depends on whether it 
 
 901 is a beating rain, or a drizzle, as we would call it. As I said, 
 I think the river doesn’t flow during the dry season more 
 
 than one-quarter of what it was in the seventies. I am speaking of 
 it more particularly below the intake of the canal ; I don’t 
 
 902 know much about it above. This place of my father’s was 
 below both the canal and the Walnut, and the place where the 
 
 grain was taken across was below the mouth of the Walnut. The 
 
THE STATU OF COLORADO ET AL. 
 
 395 
 
 Walnut is a constantly flowing stream but it gets pretty low some- 
 times. I think it flows as much water now as in the ’70’s. It is a 
 short, local stream. I don’t have any recollection of the condition of 
 the Arkansas river in 1874. My knowledge of the flow of the 
 904 river and of the crops prior to 1880 is not very distinct or accu- 
 rate. I was only a boy about eight years old in 1880. My expe- 
 rience is that during the earlier years there were only a few months 
 in the year that we could ford the river, and from 1890 to 1898 there 
 were only a few months when you could not ford the river. From 
 December to March I think the flow is only about one-half of what 
 it used to be. I think the values of bottom farming lands along the 
 Arkansas river in this county were higher than they were fifteen or 
 twenty years ago. There has been a steady and general increase in 
 values, I think. 
 
 Cross-examination. 
 
 By Mr. Campbell : 
 
 905 There is no difference between “ first bottom ” and “ first 
 bench ” as I used those terms. 
 
 Redirect examination. 
 
 By Mr. Smith : 
 
 906 The increase in farming lands has not been confined to 
 bottom lands but is general all over the country. This has 
 been caused by the increase in population and the demand 
 
 907 of the people for farms. There has been a larger demand — 
 more people with money. The high price of land in the East 
 
 has raised our values here, because people have sold their land there 
 for higher values and come here and the land appears cheap to them 
 at $40 or $50 an acre when they can sell theirs for $100 to $125 an 
 acre. 
 
 I saw the bridge go by when it washed out in 1877. 
 
 Recross-examination. 
 
 By Mr. Dawson : 
 
 908 The period of the greatest population in this city was in 
 the beginning of 1893. The excess over the present popula- 
 tion was in the neighborhood of 3,000 besides a very large transient 
 
 population that came in here for the opening of the Chero- 
 
 909 kee Strip. A large number of our farmers along the south 
 line of Kansas went to the Cherokee Strip, and I am not able 
 
 to state whether the population of the county was larger in 1893 
 than it is now or not. 
 
396 
 
 THE STATE OF KANSAS VS. 
 
 910 James Benedict, Arkansas City, Kansas. 
 
 Direct examination. 
 
 By Mr. Ashbaugh*. 
 
 I live in Cowley county, just across the river south of Arkansas 
 City. I came here in the fall of 1870 and located in Arkansas City 
 and was in the hard ware business. I preempted land on the Walnut, 
 and have owned other lands in different parts of the county and now 
 own a small piece where I live across the river. It is upland and 
 about half a mile from the river. I think the bottom lands are 
 about ten feet above the level of the river, on an average, and in the 
 lowest places it probably would be two or three feet above the water 
 in the river. 
 
 912 In the early days I have crossed the river hundreds of 
 
 times, but not so much in the later years. I think our first 
 
 bridge was built about 1874 or 1875. Before that time we forded 
 
 when we could and ferried most of the time. We ferried most of 
 the time because the river was too high to ford, and we always 
 considered the Arkansas river a treacherous stream to ford in the 
 very best time, for freight. During the dry season, excluding the 
 months of Ma}% June, and July, I was almost afraid to ford the river 
 on account of deep water. I never had any trouble in ford- 
 
 913 ing it except once, in 1877 I think, or 1878. I think it was 
 
 in August. • At that time the water came onto my pony’s 
 
 back, about the saddle, so that I had to draw my legs up and put 
 them on top of him to keep them out of the water. The water might 
 have been higher than the average, somewhat. I think the river 
 would average perhaps three or four hundred yards wide at that 
 time, and on the average I think it would be to the lower 
 
 914 part of the bank all the time, and would average 2J to 3 feet 
 deep. During the last ten years we haven’t had near the 
 
 water we had the previous years. From appearances I would esti- 
 mate it at about J- to J of what it used to be, excluding the’ months 
 of May, June, and July, and excluding high water. I mean that it 
 is J to J now in depth and width, not taking the current into con- 
 sideration. (Objection.) The diminution in the water became 
 9.15 noticeable,! think, in the latter part of the ’80s. There was 
 formerly a well here in the years 1870 to 1880, on Fifth ave- 
 nue, running east and west toward the Santa Fe depot. That well 
 went down ; that is to say it caved in, for a depth of perhaps 30 
 feet across the top. Afterwards Mr. Fitzpatrick wanted to supply 
 the town with water for sprinkling and dug a well as near as he 
 could to that old well. I told him where to dig to find the same 
 vein of water and he struck no water there that he could use at all. 
 There was no water there. In the early years you could look down 
 and see water pouring through there like a mill race. That water 
 
TIIE STATE OF COLORADO ET AL. §9? 
 
 Was Dot there when Fitzpatrick bored his last well. This well caved 
 in about 1878 or 1879. 
 
 916 I crossed the Arkansas river in the spring of 1871 in a ferry 
 boat owned by Mr. Speers. That is the first time I ever 
 
 crossed the river. I think the first bridge was built in 1874. That 
 bridge went out at the June flood of 1877. 
 
 917 I remember the boat called the “Aunt Sally.” It came 
 from Little Rock up here. We ran an excursion all day on 
 
 918 the Fourth of July. I collected the fares all day on the 
 Fourth of July on the boat. The boat was crowded every 
 
 trip it made. It stayed here probably a week and then went down 
 the river, I think to Little Rock. It was brought up here to see 
 whether the river was navigable. I invested about $200 in the 
 “General Wiles.” That boat was built in Ohio and started to come 
 up here, but the engines were not powerful enough and they never 
 got any farther, I guess, than to Fort Smith. The “ Cherokee ” 
 
 919 was built here. It was perhaps 50 or 60 feet long. Its power 
 was a theshing machine engine on it, but I don’t know its capac- 
 ity. It had steam power and was intended to run up and down the 
 river with wheat. We had no other means at that time of getting 
 our wheat to the market except by wagons to Wichita. The aim of 
 using these boats was for freighting down the river. There was a 
 little boat here run for awhile called the “ Necedah.” There was a 
 boat here called the “ None-Such ” which came up the river 
 and went back down the river. The “ Kansas Millers ” was built 
 by the people of this town about 1884, I think. It was built for 
 trading down the river, the same as the rest. The power used on 
 
 the “ Kansas Millers ” was steam. 
 
 920 There were some barges built here for freighting wheat 
 down the river. I think some wheat was freighted down the 
 
 river in them. There were flat boats previous to that loaded with 
 wheat and went down the river that were built here. I couldn’t say 
 how many, but there were two or three or perhaps four. I heard of 
 a boat coming down the river but didn’t see it. (Objection.) I rec- 
 ollect the Government snag boat. That started from Little Rock 
 and came up as far as the Pawnee agency, or as near the Pawnee 
 agency as it could get. I was down there and stayed with Capt-in 
 Evans a few days and he told me about the appropriations. 
 
 921 (Objection.) After they built the railroads here we didn’t 
 have so much occasion to use boats. My recollection is that 
 
 the railroads were built here about 1879. I think the river was 
 navigable for shallow boats for perhaps six or eight months of the 
 year. Boats built for the purposes I have referred to came 
 
 922 up the river. The canal was built from 1880 somewhere to 
 1883. I don’t see that the Walnut has decreased to any ap- 
 preciable extent during these last few years. It rises, I think, in 
 Chase county, and I suppose originates in springs. It doesn’t come 
 from the mountains; it is a local stream. 
 
i TlTE Sl'A'TE OP KANSAS VS* 
 
 Cross-examination. 
 
 By Mr. Hayt : 
 
 By the use of the term “ navigable ” I mean by shallow boats — 
 that they could run up here a portion of the year. Steamboats I 
 have reference to — small steamboats. I never knew of any of these 
 boats coming back here after they had once gone down the river. 
 It was navigable one way only, that was all. They might 
 
 923 perhaps have come back, but they didn’t. I never saw the 
 “General Wiles” that I have spoken of and in which I in- 
 vested $200 and lost it. We were not able to get the boat up here. 
 I don’t know anything about the size of it or about the power ex- 
 cept from hearsay. I don’t know how far up the river it reached 
 on its upward course except from reports. I saw the “ Cherokee.” 
 It was 50 or 60 feet long, and I think 15 feet across. I don’t know 
 
 how much water she drew. The “Aunt Sally ” drew eleven 
 
 924 inches, when she was empty, and two feet when loaded. I 
 never saw her loaded except on the Walnut river. It was 
 
 run as a sort of a novelty. It was a new thing to us. I don’t know 
 that they ran it every day but I would think she was here for ten 
 days at least, on the Walnut river. The “ Necedah ” that I have 
 spoken of was a small boat, a pleasure boat. It could not have been 
 over 20 feet long and 6 feet wide, perhaps, and would draw 
 
 925 about six inches of water. I saw it down the Arkansas be- 
 low the Sixth Street bridge. This bridge is right south of 
 
 the town, perhaps a little west. It was there several days and ran 
 down to the mouth of the Walnut and back again. Afterwards it 
 went up, I think to Oxford. That is about fourteen or fifteen miles 
 above here. I know it went up the river, but I don’t know how far. 
 I don’t know anything about the “None Such.” She came here, 
 but I didn’t see her. The “ Kansas Millers ” must have been 60 
 feet long and 20 wide, with a flat bottom and steam power. 
 
 926 It was built in St. Louis. It drew about 18 or 20 inches of 
 of water, I should think. I don’t know what became of it 
 
 after it went down the river. The barges that I spoke about took 
 grain down the river. I saw the man who took them down ; he 
 told me, and I know he was a truthful man. I know they were 
 loaded, by hearsay. I never saw them. I think there were two or 
 three of them, but I didn’t see them. When I spoke of the flat boats 
 I meant these barges. I intended to say that the barges and 
 
 927 flat boats were the same. I think there were four all together. 
 The “ Wichita ” was a Government boat — a snag boat. I saw 
 
 it on the river near the Pawnee agency, about 65 miles below Ar- 
 kansas City. It was built for the purpose of pulling snags, and it 
 was a regular steamboat build. So far as I know it never got any 
 farther up than the point at which I saw it. After 1879 or 1880 there 
 were no further efforts to bring boats up here because the rail- 
 roads had built in here and there was no further use for them. 
 There was no necessity after that for that sort of navigation unless 
 
^flE STATE OF COLORADO ET At. 
 
 m 
 
 it could have been done cheaper. When I said the river was navi- 
 gable for six or eight months of the year I meant in the early 
 
 928 spring and perhaps in the fall of the year. In August and 
 September we probably had as low water as we generally 
 
 average. From that time to the first of March it was not very high ; 
 it was low. Sandbars would appear in the river. During the ear- 
 lier years in the winter months I think there was more water than 
 there is at present, considerably, but not so much as during 
 
 929 the summer months. I think the water has fallen off during 
 the winter months about one half. These boats and these 
 
 trips that I have described constituted all that was done with refer- 
 ence to navigation so far as my recollection goes. There might have 
 been more, but that is all I have a recollection of. 
 
 930 There are four wagon bridges and two railroad bridges 
 across the river at this point. These bridges are built simply 
 
 high enough to accommodate the highest water; they don’t always 
 do it. I recollect a year about 1874, I think that is what we call 
 the grasshopper year, the river was very low then. I presume I saw 
 the river in 1874 or 1875 when it was very low and nearly dry. In 
 those early days there were times when there was very little water 
 running in the river, particularly that year. 
 
 931 The Arkansas river is a river of shifting sands, and the 
 channels change from season to season. Sandbars are 
 
 formed and shift the channel from one side to the other. Some- 
 times in places the sand is light so that the horses’ hoofs would sink 
 quite deep in them, and sometimes it is hard, and these things in 
 part made the river treacherous. 
 
 This well that I have spoken of filled up not very far from 
 
 932 1880. It was located about 350 feet from this building. This 
 block is on the corner of Fifth avenue and Summit street, 
 
 and the well was about 350 feet east of here. It was fully a mile 
 from the Arkansas river and § of a mile from the Walnut river. It 
 was on the side of the ridge sloping towards the Walnut and the 
 ridge is between the Walnut and the Arkansas river. It was just 
 as you start off the slope toward the Walnut. I wouldn’t be 
 
 933 certain that I gave Mr. Fitzpatrick the exact location. I told 
 him where the original well was. Of course that well at that 
 
 time was in the street and they wouldn’t let him bore there again, 
 so he bored as near as he could to it, over on the lot. There was 
 the width of the sidewalk between them. I shouldn’t think it could 
 have been to exceed ten feet from the original well. I don’t know 
 from my own knowledge how deep Mr. Fitzpatrick went. 
 
 934 I never measured the amount of water in the river in the 
 ’70s not even by setting a stake at the river. I didn’t notice 
 
 935 it particularly at that time, and it is pretty difficult for me to 
 describe the amount of water in the river during those early 
 
 years accurately. I can’t give the amount with reference to any par- 
 ticular year. I might recall an unusual year, such as a flood year 
 or an unusually dry year, but at its normal stage of water I don’t 
 
400 
 
 THE STATE OF KANSAS VS. 
 
 know anything about it. Yes, we had floods in the *70s and also 
 dry years. I wouldn’t place the average width of the bottom lands 
 along the river in this county as high as Mr. Denton did. I should 
 say if it averaged a mile, that would be my judgment upon 
 
 936 it. Where I live there is quite an abrupt rise to the south. 
 The drainage extends perhaps a mile west of me to the river. 
 
 The drainage to the south goes into what we call the Chilocco creek, 
 and from that into the river. This high land in this vicinit} 7 was 
 not plowed when I first located here. It has been brought under 
 cultivation since that time almost entirely — in fact entirely. Crops 
 have been grown and trees have been grown. When I came here 
 there was plenty of timber on the Walnut river, and some consider- 
 able timber on the Arkansas river and some timber on the uplands 
 above here, but very little below. We had some upland tim- 
 
 937 ber here, but above here I don’t think there was any timber 
 on the upland. The upland timber was nearly all black 
 
 timber, a low, scrubby timber. 
 
 The first alfalfa I recollect seeing here was not more than three 
 or four years ago. Most everyone who owns a place has a small 
 patch of alfalfa now. The acreage has increased, not rapidly, but 
 it is increasing. It is considered a profitable crop here. 
 
 938 I am in the real estate and insurance business. Farming 
 lands have advanced from $20 to $40 an acre the last twenty 
 
 years, since 1884, and are now $40 or $50 an acre perhaps in par- 
 ticular locations. I should judge there has been an increase in the 
 last ten years. The bottom lands have increased in value during 
 these years. I judge they have increased as much as the uplands. 
 There was never a time to my knowledge when the bottom lands 
 were of greater value than at the present time. During the 
 
 939 boom period I couldn’t tell what land was worth. People 
 went wild on farm lands. 
 
 Cross-examination. 
 
 By Mr. Campbell 
 
 From my own knowledge I would not say that the Arkansas river 
 is now used for navigable purposes from its mouth or where it enters 
 the Mississippi. I know very little about navigation. When 
 
 940 I was a boy I used to row a boat around. At certain times 
 of the j T ear now there are times when the river contains water 
 
 sufficient to float the barges and boats from here to Little Rock, that 
 I spoke of. I think they would perhaps go down for a month or six 
 weeks during the year, below the Walnut, 
 
 Redirect examination. 
 
 By Mr. Ashbaugh : 
 
 I think freight could be freighted down the river cheaper 
 than it could be hauled by the railroad, but I don’t know that 
 
 941 
 
TH E STA'I'E OF COLOHaOO !CT AL. 
 
 401 
 
 942 of m v own knowledge. Perhaps the rise of land values in 
 this county has been no more than throughout all the West. 
 
 The high price of land in the E.ist has induced a great many to 
 come out where they can get cheaper land. Land is sold for $100 
 to $150 an acre in the East and they can come out here and 
 
 943 buy for $50 and they think it is a pretty good thing. The 
 
 rise of land values has certainly not been because of the dimi- 
 nution of the water in the river. (Objection.) I think land has 
 been less productive because of the diminution of the river. I don’t 
 
 think that it has raised the price of land, and probably not 
 
 944 lowered it. The rise of land values has been due to other 
 
 causes rather than the diminution of water in the river. 
 
 945 R. J. Stevenson, Arkansas City, Kansas. 
 
 Direct examination. 
 
 By Mr. Ashbaugh : 
 
 I live on the Arkansas river two miles east and one mile south of 
 Arkansas City. I have 100 acres of land, and have lived there 
 continuously since 1870. It is one half mile above where the Wal- 
 nut flows into the Arkansas. My bottom land on an average 
 
 946 is about eight feet above the normal flow of the river. I see 
 the river every day. The flow of the river at my place on 
 
 the average through the months from July to October, inclusive, is 
 between three and four feet less than it was in the ’70’s when I first 
 moved there. On the average for the last two or three years where 
 1 crossed it, it has been about 15 inches to two feet deep, excluding 
 the flood of this year. It used to be in the ’70’s and ’80’s from three 
 to four feet deep. During the last two or three years the 
 
 947 flow has not been more than one-half of what it was in 1870. 
 The river is narrower than it used to be. The only place I 
 
 ever measured it, it was 900 feet wide, in the ’70’s. It is not that 
 wide now; it is about one third less. During the ’70’s we crossed 
 the river by ferry if we couldn’t ford it. In those early years we 
 could ford the river about three months in the year. 
 
 Q. How much of the year can you ford it now? 
 
 A. Oh, we haven’t forded it for about eleven months here for the 
 last three or four years. 
 
 This year the water has been higher than it ever was. We 
 
 948 began to notice the decrease in the flow along in the ’90’s. It 
 has been getting less since that time. I dug plenty of wells 
 
 in the ’70’s, some of them on the first bottom and some on the second 
 bottom. On the first bottom we struck water at about eight feet 
 deep, and on the second at about 12 or 15 feet. On the first bottom 
 where we dug. the soil was generally moist all the way down, 
 
 949 and it was moist on the second bench, and the moisture lasted 
 clear down. Three years ago, in 1901, 1 dug a cistern twelve 
 
 feet deep, but didn’t strike any water. The soil was dry that year. 
 26 — 7 
 
402 
 
 THE STATE OF KANSAS VS. 
 
 We strike water at about 15 feet on this second bench. I always 
 thought the sub-irrigation on the bottom was a benefit to the corn. 
 It always helped thecorn. Wecould cultivate and the moisture would 
 come up. We could raise corn with a small amount of rainfall. The 
 corn crop on the bottom lands in those days was a heap better than the 
 corn farther back on other lands. I don’t think that the bottom 
 950 lands in recent years yield as well as in the early days. The de- 
 crease in the corn crop on the bottom land I think is due to the 
 underflow water; that is one cause of it. I think it is due to the 
 dropping of the underflow water. The underflow in my bottom 
 land was fed by the Arkansas river, in my judgment. I noticed 
 the decrease in the corn crop about the same time as the decrease 
 in the river — along in the ’90’s. We began to notice the decrease in 
 our corn crop about the same time the river was going down. 
 (Objection.) 
 
 Cross-examination. 
 
 By Mr. Dawson : 
 
 951 1 should judge there is about 15 acres of mv land within 
 eight feet above the bottom of the river. It is in a swale. 
 
 The balance of the land is all higher, about three feet higher, I guess. 
 
 The bed of the river in the immediate vicinity of my land is made 
 up of sand. At times there are holes and shallow places 
 
 952 in it. When I say eight feet I mean eight feet above the 
 highest part, the level of the river. The holes are generally 
 
 in the center of the stream. The river used to run on the average 
 
 about two or three feet deep and of late years it only runs about 15 
 
 inches. Sometimes the river shifts its channel, but not very often. 
 
 The balance of my land is about 15 feet above the level of the sur- 
 face of the water of the river, on an average. I raised the best 
 
 954 corn on the 15 acres I have spoken of. I never ran any levels 
 to find out whether the level of the water in the well was 
 the same as the level of the water in the river. I think it was 
 
 955 along in August that I dug the well. Afterwards I dug four 
 wells in the high lands. They vary according to the stage 
 
 of the river. The average we struck water was from 15 to 16 feet, 
 according to the river. I use a drive pump now. Since I dug 
 
 956 those four wells in which I struck water from 15 to 16 feet I 
 have never dug any holes on the high ground deeper than 
 
 12 feet, and I don’t know positively whether or not you can strike 
 water at 15 or 16 feet there if you dig down. 
 
 957 I have heard the term “ underflow ” ever since I have been 
 here, since 1870. 
 
 958 The river has been decreasing until this spring. There 
 has been about the average flow of water this summer that 
 
 there used to be in the ’70’s. There was a little while there was 
 
 more than the average flow, about 15 inches more than there was in 
 
TH HJ STATE OF COLORADO ET AL. 
 
 403 
 
 1877. There are a couple of little creeks or streams coming 
 
 959 down from the high country above. There are a couple of 
 branches. One branch overflows my place when it is high. 
 
 It floods all over. 
 
 After I settled I grew corn on m v place nine years without change, 
 then I put in wheat and changed it back and forth with corn. I 
 never fertilized. the land. I have raised as high as 75 bushels 
 
 960 of corn to the acre, and as low as 30 bushels. In the ’70’s 
 we had the rains pretty well distributed. We didn’t have 
 
 rains like we have now. It didn’t take as much rain then to raise 
 a crop in the bottom as it does now. I think it was about seven 
 years ago that I raised 30 bushels io the acre, and we have had one 
 worse year si nee — 1901. 1902 and 1903 we raised pretty fair crops, not 
 quite as good as in the early ’80’s. I never kept any account 
 
 961 of the production per acre of my land. 
 
 I think it must be six years anyway since I first noticed 
 the discussion about taking the water out of the river. We have 
 been talking it all along since the river commenced to decrease. 
 
 962 The river was dry in 1901. There was one time in the 
 fall, I think it was in August, when there was no water pass- 
 ing. There is a cut-off down at my place here. What little water 
 
 was running in the Arkansas river ran down this cut-off 
 964 into the Walnut. It was about four feet wide there — the 
 water was. I could have crossed it with my shoes on and 
 never get my feet wet. I think where I had to go 15 to 16 feet to 
 water in the ’70’s the underflow was of value to the land for corn 
 and for anything else. It would be better at 16 feet than it would 
 be at 32. I have never measured to see just how deep corn roots 
 go; it is according to the season. If the top of the ground is 
 966 wet it don’t root as deep as if the top of the ground is dry. 
 
 She hunts moisture. I have never dug down to see how 
 deep they do run. 
 
 Redirect examination. 
 
 By Mr. Smith : 
 
 Generally when the water was the highest was when I had bet- 
 ter corn crops. When the water was low the corn crop wouldn’t be 
 quite so good. According to the local rains. Now, you take where 
 the local rains come right you can raise a corn crop without the 
 underflow of the water, but if we didn’t have much rain, if we had 
 high water in the river we would have pretty good corn. 
 967 (Objection.) I think the water in the well varies from two 
 to three feet according to the condition of the river. The 
 water in the well does rise and fall with the rise and fall of the 
 river. (Objection.) The water in the river affects the wells farther 
 back from the river by rising and falling. When the river was up 
 high it would rise and when the river goes down it would fall. 
 
404 
 
 THE STATE OF KANSAS VS. 
 
 968 Recross-examination. 
 
 By Mr. Dawson: 
 
 Those are open wells, but they are filled up now and you can’t 
 investigate them to find out about the water without digging the 
 hole out again. 
 
 969 W. H. Speers, Arkansas City, Kansas. 
 
 Direct examination. 
 
 By Mr. Ashbaugh : 
 
 I live in Arkansas City, and have lived in this vicinity since 1870. 
 I am 67 years old. I am a stationary and steamboat engineer by 
 trade. I have run mills and ferry boats, and had a little something 
 to do with little steamboats. We have a small piece of 
 
 971 bottom land on the north side of the Arkansas river. We 
 have about 110 acres there. This is first bottom land, 
 
 and we have owned it since 1872. All the bottom lands were 
 taken around here in 1870 and the winter of 1871, and 
 
 972 were proved up two years later. (Objection.) I used to 
 be along the Arkansas river pretty often when I had 
 
 a saw mill there, from 1870 to 1874. 1 ran that saw mill from 
 
 the summer of 1872 to August, 1874. The timber was hauled from 
 over here 12 or 15 miles. We sold the lumber to anybody that 
 wanted it, and it was used in this country. 
 
 The average flow of the river during the first ten or fifteen years 
 that I knew it, during the dry season of the year, excluding 
 
 973 the months when there was high water, was about 30 inches 
 deep and about 400 feet wide. The banks are from 500 to 
 
 800 feet wide. Sometimes during those first ten years the river 
 would flow pretty nearly bank-full, and sometimes two-thirds, and 
 sometimes it was down so it was not more than 20 inches of water. 
 The average flow of the river for the last ten years during the dry 
 season of the year, excluding the months when there was high 
 water, I should judge would be from 12 to 15 inches. During any 
 of the first years I never saw the river dry. During the last 
 
 974 ten or eleven years I have never seen the river but what it 
 ran some — 7 or 8 or 9 inches of water in there. 
 
 During the first years we raised mostly corn and some potatoes 
 on this land. In regard to the diminution of the water affect- 
 
 975 ing the productiveness of our land, it is this way : We used 
 to get from 50 to 75 bushels of corn to the acre, and in the 
 
 last ten years we haven’t gotten more than about 30 bushels, until 
 last year. Last year we raised a good crop of corn, and this year 
 we raised a good crop of corn. (Objection.) 
 
 The ferry boat was built in 1870 first on the Walnut river; then 
 
TEI£ STATE OF COLORADO ET AL. 
 
 405 
 
 we took it over and put it on the Arkansas. Before that time 
 
 976 in crossing the river we tried to ford it. Sometimes they had 
 to swim. During tiie early ’70’s [ think the river had been 
 
 fordable only a few days at a time, and then along in low water. I 
 operated the ferry there until they built the Sixth Street bridge in 
 the fall of 1872 or 1873; then the ferry boat got away from me and 
 went down the Arkansas river. After the floo 1 of 1877 when the 
 bridge was washed out Amos Walton and myself built a ferry boat 
 and ran it, west of town. They couldn’t ford the river, for there 
 was generally too much water. We ran that ferry boat until 
 
 977 about 1879 when the Sixth Street bridge was put in. Dur- 
 ing those ten years 1 don’t believe the river was fordable any 
 
 one month all the time, but it was fordable once in a while, you 
 know, in the fall of the year. 
 
 We had a dispute here one day. They said no steamboat could 
 stem the current of the Arkansas river. I told them I knew better 
 and that it could, and Amos Walton and I took this boat of ours and 
 put a threshing machine engine on it, and a water wheel, to run up 
 and down the river. 1 think that we ran it about four 
 
 978 months. We went up as high as Oxford, about fifty miles 
 above, and as low as the Kaw agency, about 35 miles below 
 
 here. 
 
 I remember seeing the “Aunt Sally.” It came up after a 
 
 979 load of wheat. I recognize Complainant’s Exhibit A-6 (in- 
 troduced in evidence) as a photograph of the “Aunt Sally.” 
 (Objection.) The “ Cherokee ” was built here by John Mc- 
 
 980 Laskey about 1879 or 1880. It was a steamboat with a stern 
 wheel. They took a load of wheat and started for Fort Smith, 
 
 Arkansas. John McLaskey and Amos Walton and Perry Woodin 
 went on that boat. Woodin was the pilot. There was a little boat 
 here called the “ None Such.” It came from D ardanelle, Arkansas. 
 It took on a load of wheat and went down the river. I saw 
 
 981 the load of wheat on board. The “Kansas Millers,” was 
 built in St. Louis. The milling companies here brought it 
 
 up to run flour and mill-stuff down the river. It was a steamboat 
 with a stern wheel. This was about 1882 or 1883, not later than 
 1884. William Burkey and Winton built a barge and started 
 
 982 down the river with a load of flour. It was about 70 feet 
 long and 16 feet wide. A lot of fellows built some barges to 
 
 take potatoes down through the Territory, but I didn’t see those. 
 Henry Pruden and Palmer loaded a boat here with wheat and 
 started for Fort Smith. We put some money into the “General 
 Wilder,” but I was told that their engine was not powerful 
 
 983 enough, and the boat didn’t get up here. (Objection.) I 
 have heard of boats coming down the river, but didn’t see 
 
 them. We always thought that in the ’70’s a light-draught boat 
 could run, by fixing the river, probably six months in the year. 
 (Objection.) On general information 1 am informed that the 
 
 984 river is navigable up to or near the mouth of the Cimarron, 
 up above Fort Gibson. The “Aunt Sally ” came up to get - 
 
406 
 
 THE STATE OF KANSAS VS. 
 
 load of wheat, but it didn’t take a load. (Objection.) The railroads 
 came in here in the fall of 1879 or 1880, and after that they never 
 tried to ship any more down the river. 
 
 I noticed the diminution in the river somewhere along about 
 1887 or 1890 — that there was not as much water in the 
 
 985 river as there used to be. I saw and talked with the Govern- 
 ment engineer, who came down on a boat from Wichita. (Ob- 
 jection.) They called it the “ McClelland” or some such name. He 
 laid in supplies here to go through the Territory. He was measur- 
 ing the water from Wichita down. All I know about him making 
 any report as to the navigability of the river is what he said to me. 
 
 He said that by a lot of work on the river he thought a boat 
 
 986 could be run up here as much as six months in the year. I 
 don’t know how many there were in his party; I saw only 
 
 three. They had a good size skiff — barge or skiff. I don’t know 
 where it was built, but it was built above here, I suppose. It hadn’t 
 gone up the river that I know of. 
 
 Cross-examination. 
 
 By Mr. Hayt : 
 
 There was a boat here that had a threshing machine engine on it. 
 It was a boat that I put the engine on. It was called the “ Sorghum 
 Pan.” I have been here all these years from 1870 up to the present 
 time and I have described all the attempts to navigate this 
 
 987 river that I know of. Of these boats I think the “ Kansas 
 Millers” went down after the Santa Fe railroad was built. 
 
 She went out with her barges. She had two barges. I think it was 
 in 1883 she went out. It may have been 1884. 
 
 The Government appropriations for this river was a matter 
 
 988 of general discussion here at the time. It was along about 
 the time they were trying to run these boats — about 1878 or 
 
 1879. When the appropriations gave out they didn’t try to run the 
 boats much after that. I don’t know whether anybody got any 
 money from the outside. I never saw the “Aunt Sally” on the 
 Arkansas river. I suppose she had to come up the Arkansas river 
 to the mouth of the Walnut. She never reached a point opposite 
 to Arkansas City to my knowledge. As I have said, I had some 
 discussion with reference to whether or not a boat could be 
 
 989 run up against a tide in the river. That was in 1878 or 1879, 
 I think. They gave us some money around here and I fitted 
 
 up that boat. It was a sort of public enterprise to show that a boat 
 could run up the river. We didn’t carry any freight or anything 
 of that kind, only passengers. She was 50 feet long and 16 feet 
 wide. I don’t know as it was an enterprise we would have gone into 
 unless we had some help from the outside. We didn’t keep it up as 
 a business proposition. 
 
 I saw the river in 1874. My remembrance is that there was 
 
THE STATE OF COLORADO ET AL. 
 
 407 
 
 plenty of water in it until about August. That is about my 
 
 990 recollection. I have a pretty distinct recollection because we 
 had a nice patch of corn that was growing, and it was the 
 
 driest time we ever had and we were figuring on 40 bushels to the 
 acre, but the grasshoppers came and ate it all up. 
 
 When I saul the river was navigable for small boats I meant 
 boats drawing not over 30 inches of water. I don’t think the river 
 was navigable for such boats at the common stages of the water. 
 They could run at the common stage in the ’70’s. The “ Kansas 
 Millers” was down two or three times and came back. I 
 
 991 don’t know of any of the rest of them coming back. I think 
 the“ Kansas Millers ’’drew 30 inches of waters when she went 
 
 down. I think she would draw about 12 inches light. 
 
 Cross-examination. 
 
 By Mr. Campbell : 
 
 On direct examination I stated that prior to 1880 the average 
 depth of the water in the river here was about two and a half feet. 
 There was more than thirty inches of water in the river when the 
 “Kansas Millers” went down, which boat drew 30 inches. There 
 was more than 30 inches of water then. 
 
 994 Redirect examination. 
 
 By Mr. Ashbaugh : 
 
 The “ Kansas Millers ” made several trips down the river and came 
 back. I went on one trip down with them on the “Kansas 
 
 995 Millers ” as engineer. Mr. C. Ii. Searing was along, who lives 
 here now, and Pete Yont was fireman. There were several 
 
 persons on board but whether they were passengers or not I don’t 
 know. 
 
 Cross-examination. 
 
 By Mr. Hayt : 
 
 996 There were five or six or seven of them. I came back 
 with the boat as engineer. In going down we tied up at 
 night — we couldn’t run nights on account of the sandbars — low 
 water. Coming back we tied up at nights also. It would take us 
 two days to go down, and one day to come back light. The trip I 
 made was down near Pawnee City, in the neighborhood of 80 miles 
 by the river. It took us a day and a half to come back. The boats 
 were all stern wheelers. 
 
408 
 
 THE STATE OF KANSAS VS. 
 
 997 E. J. Hoyt, Arkansas City, Kansas. 
 
 Direct examination. 
 
 By Mr. Smith : 
 
 I have lived in Arkansas City since 1870. I have been quite 
 familiar with the Arkansas river since 1870. I had a ranch up 
 here and was connected more or less with the river, because I was 
 hunting and trapping on this river at that time. I was acquainted 
 with the river from 15 miles above Leadville, Colorado, to Fort 
 Gibson, and I hunted and trapped all the way up and down the 
 river more or less, and camped on the river, and crossed the 
 
 998 river frequently from 1870 to 1889. It was a pretty good 
 size river along after the ’70’s. It is a hard thing for me to 
 
 say what the average depth would be. I crossed it a great many 
 times and had to swim it a great deal of the time. I had to swim 
 my horses. We always hunted for the rock crossings to ford. We 
 usually had to swim before we got across, at all times of the year. 
 I suppose there have been some times in the year when we would 
 not really have to swim, but it would depend upon the size 
 
 999 of the horse about that. If you had a young pony you would 
 come pretty near swimming ; but if you had a long-legged 
 
 horse he might go through and wade along in the lowest water. 
 The river here as I knew it from 1890 is about one-quarter of the 
 amount of water of the average flow of the ’70’s from July to 
 
 1000 October. I commenced to notice the decrease along about 
 1890. I have been up the river since 1890, but was on this 
 
 side all the way up. 
 
 Cross-examination. 
 
 By Mr. Dawson : 
 
 I was at the sources of the Arkansas river in 1880. I was pros- 
 pecting then more than anything else. I was all through the Lead- 
 ville boom. I followed the river up to the head. I went overland 
 all the way from here. I crossed the river nowand then. I crossed 
 it at Big Bend and struck it at Lyons and all along. I struck 
 
 1001 the river about Dodge City. The last 150 miles I passed along 
 about the first of May. When I was at Leadville in 18S0 it 
 was in the spring. 1 left this town I think about the first of 
 
 1002 May or last of April. 1 made the whole trip in 30 days. I 
 think I forded the river at Fort Dodge at that time. I forded 
 
 it with a wagon. We had no difficulty. I believe we went across 
 all right. I don’t think it went into the wagon bed. On that trip 
 1 crossed the river at Arkansas City on the bridge. I think I could 
 have found crossings here as good as I did up there if I had to ford 
 
THU STATU OK COLORADO ET AL. 
 
 409 
 
 the river. May, June, and July were the times when in the 
 
 1003 early years we had plenty of water here. 
 
 Q. And those were the months when you were telling 
 counsel on your examination in chief that it generally would swim 
 your pony ? 
 
 A. It generally did, ves, sir. 
 
 Q. And yet in May of* that year you think you could have forded 
 it here with a wagon? 
 
 A. I think I could have forded some place. I could have found 
 some place where I probably could have forded it. 
 
 I don’t know as the water had fallen much from 1870 to 1880. I 
 didn’t recognize much of a fall then. I didn’t realize it until 
 
 1004 it got up towards the ’90s somewhere. The water was going 
 up and down all the time. Some months — really a few days 
 
 would make a great deal of difference in the height of the water. It 
 is up and down, up and down. The river is not as large at Dodge 
 City as here at Arkansas City. I couldn’t say whether in 1880 the 
 amount of water flowing in the river at Dodge City was as much as 
 was flowing at Arkansas City. I know that the river drains a large 
 area of country between Dodge City and Arkansas City. I 
 
 1005 don’t know how far it is from here to Dodge City. I should 
 judge it was 100 miles. It is only 500 miles from Pueblo to 
 
 Arkansas City. I don’t know how far it is from here to Dodge City, 
 and I wouldn’t give an estimate. When I went up the river I foun d 
 plenty of water in Colorado above Pueblo. There is most always 
 water running there. It was very narrow up at Leadville ; 
 
 1006 you could step across it. At Pueblo it is rocky, and of course 
 runs quite swift. I forded it at Canyon City and had no trouble 
 
 in fording it there. 
 
 Q. Why did you ford it there when there were two bridges you 
 could cross? 
 
 A. There were no bridges there that I knew of. 
 
 I didn’t see any bridge. I forded it and went oyer the Iron 
 Mountain road. I went right up by the penitentiary and forded 
 it by that little soda spring there and went right across and went 
 over the Iron Mountain road. I don’t remember seeing any 
 
 1007 bridge there. I think I went up by Canyon City in 1880. 
 We left the river above Canyon City and came back to it at 
 
 Salida. Above Salida we were part of the time on the river and 
 part of the time off. We followed the road wherever it went. I 
 think it followed the river most of the distance. I stayed up in 
 that country three years. The country up at the head waters 
 
 1008 of the Arkansas river was pretty well timbered at that time, 
 except Bald mountain. I have been over Tennessee pass ; 
 
 there was considerable timber scattered around. I have been over 
 the Mosquito range. If I remember right, it lies east of Leadville. 
 Above timber line I guess there is not much timber. In going over 
 the Mosquito pass, if I remember right, you go pretty nearly above 
 timber line. 
 
410 
 
 thh; statk of Kansas vs. 
 
 Q. What is your business now? 
 
 1009 A. Nothing. 
 
 Since I caine down from Leadville in 1883 or 1884 I have 
 been a moving planet most of the time. I came right from Central 
 America here; that was a couple of years ago. 1 have been here 
 two years trying to get straightened out from some wounds I got in 
 Central America. As to the time that I have been away from the 
 Arkansas river between 1884 and two years ago, I will say I have 
 been backward and forward here all the time. The longest 1 have 
 been away at anv one time has been about two years at a time, if I 
 remember. Not longer than two years at a time. When I came 
 back I wouldn’t go and measure the river or look it over. I never 
 measured it, only as 1 would walk through it. When I came back 
 on these trips I would stay six months sometimes, sometimes three 
 months, sometimes ten days and sometimes a year. 
 
 Q. And then light out again? 
 
 A. Yes, sir. I would stay as long as the grub lasted and then 
 light out to get more. 
 
 1010 When I went out on these trips I was generally engaged 
 in mining. I have worked on grub-stake in Nova Scotia. 
 
 I can tell you easier where I hav-n’t been than where I have been. 
 I have discovered a good many mines. I am a musician and I 
 work at that at odd times. I was with a wild west show a part of 
 the time. I was back there two different times with Pawnee Bill 
 one year, and then I had my own show back there at Borden’s 
 Crescent park on the Narragansett bay, seven miles from 
 
 1011 Providence, Rhode Island. When I was engaged in trap- 
 ping in this country in the early days I was engaged in that 
 
 principally in the winter time and trapped when I didn’t have 
 anything else to do, like I play a fiddle when I have nothing else 
 to do. The trapping season is generally in the winter season. The 
 fur is better then. 
 
 The river has been falling off from 1890, from December to March, 
 both inclusive, as compared with what it used to be in the ’70’s. It 
 has been getting less all the time. I don’t think there is much over 
 one quarter or one third as much water now as there was in 1870. 
 That is the way I size it up. From 1890 to 1898 there wouldn’t be 
 more than one third as much water flowing in the river from the 
 first of December to the first of April as there was flowing dur- 
 
 1012 ing those same months from 1870 to 1878, taking the average. 
 About one-third as much from 1900 up to the present date 
 
 for these months I have mentioned. I should judge so. I feel sure 
 that that would be a reasonably close approximation. That would 
 be my best judgment. 
 
THE STATE OF COLORADO ET AL 
 
 411 
 
 Cross-examination. 
 
 By Mr. Campbell : 
 
 When I said that the Arkansas river had only about one third as 
 much water now as it had prior to 1880 I meant above where 
 
 1013 the Walnut flows into it. My observations with respect to 
 the flow of the water in the Arkansas river have been oppo- 
 
 1014 site this town where we now are. I haven’t been at the head 
 waters of the Arkansas river since 1883. I went up there 
 
 1015 first in 1879 and I was backward and forward for about three 
 years. I noticed when I went there in 1883 that the timber 
 
 had been cut off in some places since my first visit there. 
 
 Redirect examination. 
 
 By Mr. Smith : 
 
 I have occasionally noticed the river at other times and other 
 points along here, and my statement applies to the river wherever 
 I have seen it, both above and below Arkansas City. 
 
 « 
 
 1016 Elias Neff, Arkansas City, Kansas. 
 
 Direct examination. 
 
 By Mr. Ashbaijgh : 
 
 I have lived in Arkansas City about 20 years. I came to Kansas 
 in 1883 and lived in Winfield about six months and then came to 
 Arkansas City. The canal or race was dug to Arkansas City when 
 I came here. The canal was dug when I came, but I couldn’t say 
 that it was completed. There might have been some work done on 
 it after I came here in February 1884. (Objection.) That 
 
 1017 was one reason wh} r I came here ; I thought that canal would 
 be of some advantage to the town. 
 
 No cross-examination. 
 
 1018 John Myrtle (recalled), Arkansas City, Kansas. 
 
 Direct examination. 
 
 By Mr. Ashbaugh : 
 
 I came to Arkansas City in 1871, and I know that the canal was 
 built previous to 1884, because I attempted to sell some wheat to 
 Mr. Ayers, who was then running a mill down there on the canal in 
 1884. That was the old Ayres mill. They were using the 
 
 1019 canal then for water power The mill had been built before 
 that time, and perhaps as early as 1883. 
 
412 
 
 THE STATE OF KANSAS VS. 
 
 Cross-examination by Mr. Dawson: 
 
 The mill was the only institution that I remember of that was 
 running by water power at that time. 
 
 1020 Arthur H. Green, Arkansas City, Kansas. 
 
 Direct examination. 
 
 By Mr. Ashbaugh : 
 
 I live ten miles from Arkansas City, on the Walnut. I am a 
 farmer and have a farm in the county here. The farm is on both 
 sides of the Walnut river. I have lived there since November, 
 1882. Excluding the present year, I don’t think that there 
 
 1021 has been any material change in the flow of the Walnut 
 river in the last twentv years. The Walnut river rises in 
 
 Butler county mainly and is fed by rains and springs. The year 
 1904 has been an excessively wet year; the Walnut river has been 
 very high. 
 
 1024 Frank J.*Hess, Arkansas City, Kansas. 
 
 Direct examination. 
 
 By Mr. Ashbaugh : 
 
 I have lived at Arkansas City since the spring of 1877 I am 46 
 years old, and a real estate agent, and I am familiar with the city 
 and its institutions here. (Objection.) The canal or race through 
 this city was constructed in the year 1881. Mr. V. M. Ayres 
 
 1025 and James Hill each built a mill on the canal right after it 
 was completed. These were flouring mills. They used water 
 
 power from the canal. The canal was built for water power pur- 
 poses. The canal empties into the Arkansas river. The canal is 
 about four and a half miles long. The water passes through the 
 canal and is finally returned into the Arkansas river. At first the 
 following institutions using water power were built on this canal : 
 Willliam Speer built a stone mill ; V. M. Ayres built a frame mill ; 
 Landis, Hill & Beal built a very large stone mill. These 
 
 1026 were all flouring mills. A little later the Plummer Chair 
 Company built a large three-storv stone mill, built to use 
 
 water power, to manufacture chairs. The Kirkwood Manufacturing 
 Company built a two-story stone building to manufacture wind- 
 mills by water power. The electric light plant built a frame and 
 stone structure to generate electricity by water power. Id. T. Rob- 
 erts built a frame building to run a saw-mill — that is, a planing 
 mill — bv water power. There was also built several large elevators 
 in conjunction with the mills, for elevating grain. The capacity of 
 one was 150,000 bushels, using water power from this canal. (Ob- 
 jection.) 
 
THE STATE OF COLORADO ET AL. 
 
 413 
 
 I have been acquainted with the flow of the Arkansas river ever 
 since 1877, in a general way. Between the flow of the river 
 
 1027 during the first ten years that I knew it and during the last 
 ten years, during the dry season, excluding the months when 
 
 there was high water, there is quite a difference. There is a good 
 deal less water, and the Arkansas now is an insignificant stream. 
 In the early days here we did everything we could to have Congress 
 appropriate some money to clean out the river. We had aspira- 
 tions to have navigation at Arkansas City. We petitioned Congress 
 and we built a steamboat called the “ Kansas Millers ” to haul lum- 
 ber up from Arkansas and flour down, and there was some money 
 appropriated and expended on the Arkansas river in dredging and 
 removing snags. Mr. Wood was one of the officers or ap- 
 
 1028 pointees who had charge of this work. Mr. Wood was from 
 Wichita and represented the United States Government. 
 
 That work was done in the ’80s, but I couldn’t fix the year defi- 
 nitely. The “Aunt Sally ” came up here from Fort Smith with some 
 lumber, I think, and loaded with flour, and was anchored here in 
 the Walnut. They didn’t have any trouble with her taking a load 
 of flour down the river. I was on the boat myself. I think they 
 made a trip up and down the river there before they loaded. 
 
 1029 The railroads were built in here in 1878 or 1879. 
 
 Cross-e x a m i n a ti on . 
 
 By Mr. Hayt : 
 
 I don’t recollect that the railroad had any influence upon naviga- 
 tion here. We stopped our efforts in that line because the river 
 ceased to be a river. For one reason, we lost money on the “ Kan- 
 sas millers,” and I don’t know whether it was because it was not 
 practicable or why. That was in the 80s. We never made any 
 money on any of these steamboats. 
 
 1030 I don’t mean that I was on the “Aunt Sally ” when she 
 went down the river but just while she was anchored hereon 
 
 the Walnut. The “Aunt Sally” didn’t go above the mouth of the 
 Walnut that I know of. 
 
 The chair factory ran about two years during 1881 or 1882, some- 
 where around there, and then it busted. The wind-mill factory is 
 still running, and the planing mill factory is just about being re- 
 moved now. They are moving it up into the town. It was 
 
 1031 operated here, I should judge, from 1885 or 1886 down to 
 within the last month. 
 
 Cross-exa m i n ation . 
 
 By Mr. Campbell : 
 
 There is about one third as much water in the Walnut as there 
 was in the Arkansas river in the early ’80s in my judgment. The 
 
414 
 
 THE STATE OF KANSAS VS. 
 
 Arkansas river at the present time has about one quarter as 
 
 1032 much as the Walnut where the Walnut flows into the Arkan- 
 sas. The “ Kansas Millers ” came up to the mills above the 
 
 Walnut. 
 
 Redirect examination. 
 
 By Mr. Ashbaugh : 
 
 These mills that were originally located as water power mills have 
 now an auxiliary steam power that they use on account of the in- 
 sufficiency of the water in the canal. 
 
 Recross-examination. 
 
 By Mr. Hayt : 
 
 When I say that the Arkansas river of late years has about one 
 quarter as much water as the Walnut I am speaking of the 
 
 1033 Arkansas river below where this mill race takes the water 
 out of the river and carries it into the Walnut. 1 don’t think 
 
 much water of the Arkansas river flows over the dam in dry 
 weather. Of course that is governed largely by the seasons. When 
 there is no water running it doesn’t flow over the dam at all 
 
 1034 in the summer time. It is dry a good portion of the time. 
 During the last two years the canal has taken all of the water 
 
 out of the river at that point all summer, I should say, with the ex- 
 ception of freshets in the spring. We usually have high water here 
 in June, I think. It varies from 30 to 40 days. The canal takes 
 practically all the water during the months of July and August. 
 That is not true this year, because we have had two freshets this 
 year — one in June and one in July. 
 
 According to my recollection the canal took the water all out of 
 the river during the months of July and August, 1903. This photo- 
 graph (Defendant Colorado’s Exhibit 1, taken Juty 18, 1903) 
 
 1035 in this book of photographs of the Arkansas river taken from 
 the left bank down stream, shows one of our bridges across 
 the Arkansas river, I should judge. 1 couldn’t tell which one. 
 
 1036 (Objection.) I think the river was practically dry during the 
 season of July and August, 1903, with the exception of any 
 
 rains that might have raised it temporaril}'' or momentarily. My 
 recollection of the flood of last year is that it was in June. It might 
 have been in July, but I know that is away above normal in the 
 summer time, and that flood was caused by a rain or freshet. 
 
 1037 (Objection.) I should say that that picture shows the water 
 above the normal in the summer condition — above the aver- 
 age flow in the summer time. (Objection.) It is not at the high 
 water stage. 1 have seen it up within a foot of the floor, if that is 
 the Chestnut Avenue bridge. This picture (Defendant Colorado’s 
 
THE STATE OP COLORADO ET AL. 
 
 415 
 
 Exhibit 2) looks something like the dam. (Objection.) The 
 
 1038 picture shows that it is high water. If that picture is true 
 and if it was taken on the tenth day of August, 1903, 1 should 
 
 say that at that time the water was high in the Arkansas river at 
 that point. (Objection.) 
 
 1039 W. M. Sleuth (recalled), Arkansas City, Kansas. 
 
 Direct examination. 
 
 By Mr. Smith : 
 
 The Arkansas City Power Company was formed in Arkansas City 
 for the purpose of developing the water company and con- 
 
 1040 structing the canal. I have the original charter in my hands 
 now ; it is dated December 17, 1880. (Objection.) Soon after 
 
 that a canal company was organized and proceeded to work early in 
 the spring of 1881. The canal was actually dug and completed in 
 the spring of 1881, and an extension was made farther up the river 
 in 1887. The first buildings for manufacturing purposes were 
 erected on the canal I think some time in the year 1881. The canal 
 was used at that time and has been used continuously ever since for 
 conveying water for power, so far as I know. 
 
 1041 Cross-examination. 
 
 By Mr. Dawson : 
 
 We have leased to the Arkansas Milling Company 300 horse- 
 power, and then we have the electric light company, about 150 
 horse power. I couldn’t say what is the limit of the canal’s horse- 
 power production. It has 22 feet fall or drop as the maxi- 
 
 1042 mum. It wastes over after that. The wind-mill company is 
 using horse-power now. Those are all the companies that are 
 
 taking power from the canal now. We have found by experience 
 that that is ordinarily all the power that the ditch or canal will de- 
 velop. I don’t know that any of the other institutions along the 
 canal have stopped using water power from it except the chair fac- 
 tory ; it has stopped using water power, but not for the reason that 
 they could not furnish it. The grade of this canal is 18 inches 
 
 1043 to the mile — a foot and a half to the mile. 
 
 (Complainant’s Exhibit A-6J introduced in evidence. Objec- 
 tion.) 
 
 1045 I. H. Bonsall (recalled), Arkansas City, Kansas. 
 
 Direct examination. 
 
 By Mr. Ashbaugh : 
 
 I have now a copy of the original picture that I made of the 
 “ Aunt Sally” on the Fourth day of July, 1878, as she stood in the 
 Walnut river. I made the original picture. (Complainant’s Ex- 
 
416 
 
 the st\te of Kansas vs. 
 
 Inbit A-6, introduced in evidence.) The copy of this original pho- 
 tograph that I now have and that has been offered in evidence 
 
 1046 is an extra tine copy. It is an enlargement, of the original. 
 It is made a little larger but not quite twice as large. (Ob- 
 jection.) 
 
 1047 P. H. Franey (recalled), Arkansas City, Kansas. 
 
 Direct examination. 
 
 By Mr. Ashbaugh : 
 
 I commenced the canal at Arkansas City on the 28th day of Feb- 
 ruary, 1881, and completed it just a year from tint date. The width 
 on the bottom, when completed, between the banks, was 15 feet, and 
 it had a slope of a foot and a half to a foot rise. The width of the 
 canal at the top when the canal is full of water is about 39 
 
 1048 feet. I measured it this morning. (Objection.) The depth of 
 the canal when it is flowing full of water is four feet and nine 
 
 inches at one point, as measured this morning, and four feet six 
 sinches at another. I lecognize Complainant’s Exhibit A-7 (intro- 
 duced in evidence) as a picture of the tail gates before completion at 
 the foot or outlet of the canal. This picture was taken in 1881, and 
 is a correct representation of the canal as it then looked. 
 
 1049 (Objection.) I recognize Complainant’s Exhibit A-8 (intro- 
 duced in evidence) as a picture of our men working on the 
 
 tail race after the canal was built, in this same year. (Objection.) 
 The building shown in the picture is the first building constructed 
 on the canal, and is a correct representation as it then appeared. 
 
 No cross-examination. 
 
 1050 A. A. Newman, Arkansas City, Kansas. 
 
 Direct examination. 
 
 By Mr. Ashbaugh : 
 
 I have lived in Arkansas City continuously about 33 years. Am 
 61 years oid, and in the dry-goods business. I have been connected 
 with the milling business ever since I have been here, and have 
 been interested in other enterprises. I was a charter member of the 
 canal company and a director in the company ever since it was or- 
 ganized in 1880. We commenced to dig the canal in the spring of 
 1881, and it was completed that summer, so far as making it a water 
 power. There had been additions or extensions since that 
 
 1051 time, which I think were made in 1885. Our engineer said 
 that the canal would produce, when full, about 1000 horse 
 
 power. (Objection and motion.) I have been connected with this 
 company during all these years, and I know the capacity of the 
 canal myself and of my own knowledge. (Objection.) We have 
 
THE STATE OK COtOHAbO ET AL. 
 
 417 
 
 leased at one time about 500 horse power. The total cost of con- 
 struction of that canal down to date has been about $150,000. 
 
 1052 The total expenditure to date of the Speer mill I think has 
 been somewhere from fifteen to twenty thousand dollars. 
 
 (Objection.) The total expenditure of the Avers, the Landis, and 
 the Arkansas City Milling Company’s mills, the three having been 
 consolidated, has been about $125,000. (Objection.) In the eleva- 
 tor additions and improvements the total expenditures to date have 
 been at the minimum about $15,000. (Objection.) 
 
 1053 These improvements have been doubled, in the cost. (Ob- 
 jection.) The total expenditure of the electric light improve- 
 ment has been about $20,000. (Objection.) I am a part owner and 
 help to pay the bills. (Objection.) I am positive it would reach 
 
 between twenty and twenty-five thousand dollars. The total 
 
 1054 expenditure to date in the wind-mill factory has been at least 
 ten to fifteen thousand dollars. (Objection.) My experience 
 
 is a mighty sore point in some of these matters. I was unfortunate 
 enough to have it cost me individually $5,000. The total expendi- 
 ture of the chair factory has been at least $20,000. The total ex- 
 penditure of the milling company has been probably $2500. (Ob- 
 jection.) The total expenditure of the mattress factory has 
 
 1055 been something more than $20,000. (Objection.) 
 
 The city of Arkansas City now has between seven and eight 
 thousand people. In 1880 the Government census gave us 1,060. 
 The business portion of our city is now built principally of stone 
 and brick — more stone than brick. (Objection.) Nearly all our 
 blocks are two-story. There are some three-story buildings. (Ob- 
 jection.) There are ten three-story blocks in the city ; there are 
 three four-story blocks in the city; and the Fifth Avenue hotel is a 
 five-story building. The material of all these three, four, and five 
 story-buildings is stone. The Fifth Avenue hotel cost between one 
 hundred and one hundred and twenty-five thousand dollars. 
 
 1056 Cross-examination. 
 
 By Mr. Campbell : 
 
 The assessed valuation of the city ten years ago was about 
 $1,500,000, and I think it is about one half that now. The assessed 
 valuation is about one-third to one-fifth of the real valuation. 
 
 Cross-examination. 
 
 By Mr. Dawson : 
 
 I have had some experience in figuring the horse-power produced 
 by water. I was giving the amount of horse-power that this 
 
 1057 canal produced, both from my own figures and from those 
 furnished by somebody else. As far as my experience went 
 
 my figures were better than the engineer’s on cost of horse power 
 and on horse power. Mine were practical. I have been in the mill- 
 27—7 
 
418 
 
 THE STATE OF KANSAS VS. 
 
 ing business ever since I have been a bov. The carrying capacity of 
 this canal varies. It has about 24 feet drop as a maximum at the 
 delivery. It was supposed to be 22 feet at the start, but the banks 
 have been raised a great deal since the canal was built, so that it 
 will carry more water than when it was constructed — from two to 
 five feet more. When I say that the canal has 1,000 horse-power I 
 mean it will produce that amount of power. I don’t know the dif- 
 ference between gross and net horse-power. The power I refer to is 
 net horse-power. The maximum power we ever delivered to any- 
 one from this canal was about an even 500. We have had 
 
 1059 twice as much as that at one time that we could have deliv- 
 ered. We can still do so at the river’s full stage, but there 
 
 are portions of the year, probably half of the year, that we do not 
 have the water. There have been times when we took all the water 
 out of the river into our canal, but I think not until within 
 
 1060 the last nine or ten years. I couldn’t tell the exact time. 
 As far as the ditch is concerned, the ditch is as large as it has 
 
 been, but we fail in water through the dry months and it has some- 
 times failed to the extent of more than one half of its horse-power 
 capacity. This principally occuits by shortage of water. But the 
 flow has sometimes been reduced 75 per cent, at its maximum by 
 the rising of the water in the Walnut river. The river sometimes 
 freezes up so largely that there is very little water runs in the river. 
 The principal time when we have an insufficiency of water 
 
 1061 is in the dry season in the summer. When the Walnut was 
 not up so as to affect our canal and there was no ice in 
 
 the canal, there has been a time when the canal would not pro- 
 duce one fourth of its capacity in horse-power because of the 
 shortage of the water. That was the case in 1899, 1900, and 
 1902. In 1903 there was a better stage of water and there was 
 more rainfall in this country adjacent. In the three months 
 commencing with July, August, and September, in the years 
 1899, 1900, and 1902, we had a shortage of water for the canal. 
 It was not always continuous. We had rains and the river 
 would flush at times and there would be more water than at other 
 times. I know that this canal will produce more than 450 
 
 1062 horse-power net for actual use. It was on account of the 
 shortage of the water in the dry months that some of these 
 
 enterprises on the canal put in steam power. It was also in order to 
 overcome the lack of power because of the interference of high 
 waters in the Walnut river with the power. There are times for a 
 day or two days or three days at a time when the Walnut river is 
 too high. The fact that the ice would freeze in the river and canal 
 and interfere with the power had something to do with the installing 
 of these auxiliary steam plants. All these causes operated together, 
 but those causes were the minimum ; they were only for a short 
 time, from a few hours to a longer period, and the shortage in water 
 ran through a series of months. I had something to do with the 
 
{the state of colokado kt al. 
 
 419 
 
 building of all of these various plants constructed along this 
 
 1063 canal, except the original building of the Ayers mill. When 
 I spoke of the cost as being down to date, I meant all the im- 
 provements. I didn’t include the cost of taking out old machinery 
 and putting in new, except the extra cost of the new over the re- 
 placed machinery. 1 included the cost of the auxiliary steam 
 plants. There were no steam plants put in until we were unable to 
 furnish the required amount of water on account of the dry weather 
 and the low stage of the river. Our canal is running a full head 
 at this time, the 24th day of August, 1904. The recent high water 
 we have had in places has damaged the canal. There is plenty of 
 
 water in the river today to run the canal full, and I think 
 
 1064 there has been plenty most of this season. 
 
 Quite a few of the large blocks in this town were built 
 during the boom period when the town had more people than now. 
 It was a pretty active boom and it broke I think in 1887 or 1888. 
 The five-story Fifth Avenue hotel was occupied and run as a hotel 
 fora while. I think it ran some time after the boom bursted, 
 
 1065 but I am not certain. At present it is let out to roomers. I 
 have not been in the hotel for some time, and I don’t know 
 
 the state of the rotunda and office and of the plaster on the walls. 
 Quite a few of the people that were here during the boom times 
 went south to Oklahoma. 
 
 Redirect examination. 
 
 By Mr. Ashbaugh : 
 
 The planing mill has been removed away from its original loca- 
 tion on the canal on account of the uncertainty of the water power. 
 (Objection.) As to the Walnut river interfering with the water 
 power in the canal, the Walnut is a short stream and runs 
 
 1066 down rapidly, and might interfere sometimes a day and some- 
 times a week. There lias been but very little interference from 
 
 ice in the last few years. 
 
 Recross-examination. 
 
 By Mr. Hayt : 
 
 Approximately, I should say that the Walnut has interfered with 
 the water power during this season of 1904 about 25 or 30 
 
 1067 days. This summer the Walnut had more high water than 
 usual. It might have been less or more than that. I have 
 
 seen the Walnut river during the high water of this year about 
 every day I was here. I have not been here continually, but most 
 of the time. I think the highest water in the Walnut in the year 
 1904 was somewhere in the neighborhood of 19 or 20 feet above the 
 ow water. I don’t know about the normal. The gauge starts at 
 ow water. I should say that approximately the Walnut river at 
 
420 
 
 THE STATIC OE KANSAS VS. 
 
 the raoutli of the canal was ten feet above low water mark for 
 1068 about ten days during the season of 1904. The flood of 1904 
 was the greatest, the highest, and the longest this country 
 ever had. 
 
 1069 L. E. Woodin (Recalled), Arkansas City, Kansas. 
 
 Direct examination. 
 
 By Mr. Ashbaugh : 
 
 I have been connected with the Arkansas City Power Company 
 for eleven years I think. For the first two or three years I was as- 
 sistant secretary and the balance of the time was secretary of the 
 company. The canal when supplied with water to its capacity 
 furnised 1,000 horse power. (Objection and motion.) The actual 
 amount furnished to the parties using the same was 425 
 
 1070 horse-power exactly. That is covered by the leases of these 
 various manufacturing plants. (Objection.) 
 
 Cross-examination. 
 
 By Mr. Hayt : 
 
 The paper I have in my hand is my report to the stockholders of 
 the water power company made in 1895 and I am testifying from 
 this report. I looked at that paper when counsel asked me a ques- 
 tion, because I wanted to be positive. I am not using it in this ex- 
 amination, because I know the exact number. I looked at it 
 
 1071 just to refresh my memory. I can tell you the very amount 
 that is furnished. I have a list hereof the number of people 
 
 or concerns to whom this 425 horse-power was delivered. 300 horse 
 power was delivered to the Arkansas City Milling Company, 50 
 horse-power to the Arkansas City Gas and Electric Company, 25 
 horse power to the Kansas Mattress Company, 25 horse power to the 
 wind engine company and 25 horse power to the Plummer 
 
 1072 Chair Company. I think that makes 425. The leases were 
 made and in «force before I had anything to do with the 
 
 company in 1890. They were made prior to 1890. This 425 horse 
 power was furnished in 1890, 1891, 1892, etc. I was there during 
 those years. I don’t know that there was any record of the amount 
 of power furnished made except in my report, but the leases were 
 on file in the office. In that way we know just the amount 
 
 1073 of horse power that is to be furnished. We furnished that 
 horse power during the entire season whenever we had water 
 
 to furnish it. Those establishments took that entire amount, and 
 during low water we were compelled to deduct for the low water. 
 I don’t remember how much we deducted for the year 1890 in low 
 water. The report which I used to refresh my memory was merely 
 a record of the leases, and it is based upon the amount of water re- 
 
THE STATIC OF COLORADO ET AL. 
 
 421 
 
 quired under the leases. This particular report was made in 
 
 1074 1895. I made a report every year and just took one out of 
 the pack. This report covers the year ending December 31, 
 
 1895. This particular report was made in January, 1896. (Objec- 
 tion.) 
 
 1075 Frank J. Hess (Recalled), Arkansas City, Kansas. 
 
 Direct examination. 
 
 By Mr. Ashbaugh : 
 
 The removal of the planing mill from the original site upon the 
 canal I referred to in my testimony yesterday was because of frequent 
 interruptions by lack of water — shut-downs. (Objection.) I have 
 always taken an active interest in the development of the city since 
 1877 and have been connected with the chamber of commerce 
 
 1076 and similar organizations. I have always claimed that the 
 water power was the biggest thing we had here. (Objection.) 
 
 I think it helped to make the city what it is, because of the possibility 
 of introducing manufactories and of having a “ bucket brigade ” as 
 we called it. There are not equal water facilities in other places in 
 this vicinity. (Objection.) If manufacturing interests should be 
 built up in another city near here they would have to use 
 
 1077 steam power or other power than water. Water power I 
 know is much cheaper. (Objection.) There has been addi- 
 tional cost in maintaining a manufactory in this city on the canal 
 since the addition of steam power. (Objection.) Auxiliary steam 
 power has been added to the Arkansas Milling Company’s plant 
 and to the electric light plant. 
 
 I am in the real estate business and farming, and dabbling in a 
 little of everything, I guess. 
 
 The extra cost on account of the introduction of steam power in 
 these different enterprises that were originally run by water 
 
 1078 power has been because of the incidents connected therewith — 
 the buying of coal, the hiring of engineers, the switching from 
 
 the water to the steam power and the reverse, and the extra insur- 
 ance. We charge them an extra premium for the insurance when 
 they use steam power. I am in the insurance business and insure 
 them, and know of my own knowledge of these extra insurance 
 rates. 
 
 1079 There was a rain on Saturday night, July 12, and one on 
 July 14, 1903. (Objection.) I am using a memorandum I 
 
 made this morning and last night to refresh my memory, the data 
 being taken from the daily papers. (Objection.) I know that lasc 
 year the rainy conditions were abnormal. We had more rain in 
 the summer months than we had before. I think we have had 
 much more this year than last year. I have a record of those years 
 of high water. (Examining Defendant Colorado’s Exhibit 
 
 1080 1.) When that picture was taken the river was higher than 
 ordinary at that time, but whether there was a flood condi- 
 
422 
 
 THE STATE OF KANSAS VS. 
 
 tion I don’t know. Examining the picture taken on August, 1903, 
 (Defendant Colorado’s Exhibit 2), I would say it was taken at high 
 water. It was taken at water that had been higher a day or 
 two before. There had been a flood a day or two before. 
 1081 The water was several feet higher. I examined the files of 
 the daily papers and made the notes which I am now using 
 from what I gleaned there. They were taken from the daily papers 
 of 1903 and were made since last evening. (Objection.) On Au- 
 gust 7, 1903, the river was up from two previous rains, and on Au- 
 gust 8th we had another large general rain. On August 6th we had 
 a general rain, and on July 31. 
 
 Cross-examination. 
 
 By Mr. Hayt : 
 
 1082 If I stated yesterday that the river was dry during most 
 of the month of August, ly03, 1 was mistaken. I am satisfied 
 
 now from the pictures and from the examination I have made that 
 on the tenth day of August the river was well up, in 1903, and I 
 don’t know of my own knowledge further than what I have looked 
 up here and testified to what days during the month of August the 
 river was up and what days it was down. I stated yesterday that 
 the rains occurred during the spring of the }^ear last year, and 
 
 1083 I also stated that there was a flood in August or September 
 upon the Walnut river, and 1 thought upon the Arkansas 
 
 river, but didn’t know. I should say that this canal didn’t take all 
 of the water out of the river during the months of July and August, 
 1903. It seems there was threatening weather and rainy seasons 
 from the latter part of July to the 10th or 15th of August, running 
 over a period of 20 to 30 days that rainy conditions prevailed 
 throughout the State. 1903 was a wet year in this vicinity during 
 the months of July and August. I have refreshed my 
 
 1084 memory since I was examined yesterday, from the “ Daily 
 Traveller,” and have talked with a number of persons in 
 
 reference to this case since leaving the witness stand yesterday. In 
 those early days we relied upon this water power principally in 
 building up the city. We boomed it and talked it, it was our re- 
 ligion. Now we have a better town that we are relying on making 
 it better still. We expect to make it one of the best in this 
 
 1085 State. The rate of insurance upon such buildings as I have 
 spoken of and where the power used is water power is $2.85 
 
 or $3.85 per $100. It varies. Whenever they use steam power a 
 part of the season the rate is 25 to 50 cents per hundred extra per 
 year. I don’t know but what steam power has its advantages over 
 water power. I know as a general proposition that water is much 
 cheaper than steam power. 
 
THE STATE OF COLORADO ET AL. 
 
 423 
 
 Cross-examination. 
 
 By Mr. Campbell: 
 
 The chair factory company has been removed from the canal site. 
 The building is there but it has not been in operation. The fac- 
 tory is still there, but not running. It failed, but the build- 
 1080 ing is there yet, and a part of the machinery. The chair 
 factory didn’t fail by reason of the uncertainty of water. 
 The planing mill has removed up-town ; they are using gasoline 
 power. 
 
 Redirect examination. 
 
 By Mr. Ashbaugh : 
 
 It is a matter of natural pride to us here to have the best city in 
 the State and to make it one of the best. Our rival towns have 
 pointed with pride to the fact that our water power is no longer a 
 good water power, and I would say that in a general way it 
 
 1087 has hurt us. How much, I couldn’t tell. (Objection.) 
 
 I live in the southeast part of the town about three quarters 
 of a mile from the Walnut river. I was affected by the hood in the 
 Walnut river in the spring of 1904 and lost about $5,000. I have 
 the exact dates and hours, showing the high water in the Walnut 
 river this year that interfered to any appreciable extent with the 
 water power in this canal. It was about five days in June and prob- 
 ably six days in July that the hood water in the Walnut river in- 
 terfered to any appreciable extent with the water power in the canal 
 during the year 1904. 
 
 1088 Recross-examination. 
 
 By Mr. Hayt : 
 
 This memorandum was taken at the time of the hood. I have a 
 farm, and am very much interested, and have to watch to get some 
 stuff out. It is a memorandum running from day to day and is a 
 farm diary. 
 
 Recross-exam ination. 
 
 By Mr. Campbell : 
 
 We have as good freight rates on merchandise in and out as our 
 rival towns; that is, immediate towns. If you call Wichita a rival, 
 we have not. This is not a common point with Wichita in all 
 things. For things that are manufactured along the canal. I don’t 
 think they get the same hour rate. It is my understanding that 
 Wichita has a better freight rate on hour and grain than this town. 
 That would surely have some effect upon the building up of the 
 town and its business. I think we have as good freight rates on 
 
424 
 
 THE STATE OF KANSAS VS. 
 
 those tilings that are manufactured along the canal as other 
 
 1089 towns, outside of Wichita. I think we have the same grain 
 and flour rate as Winfield. I am not positive, however. I 
 
 know that the freight rates upon merchandise in and out of town 
 cut a very important figure as to the growth and property of the 
 town. It is a fact* that Arkansas City’ has had disadvantages in 
 freight rates that have worked against our town. 
 
 Recross-examination. 
 
 By Mr. Hayt : 
 
 The Walnut river was above its normal flow eleven days in the 
 month of June, 1904. In that time the river went up, and receded, 
 and came up again. I should say that in that entire time it 
 
 1090 was five feet above the normal flow. A ten-foot rise is not a 
 bad rise, but it would materially affect the water power. A 
 
 five-foot rise would not affect the water power much ; it would affect 
 it some. During the month of July it was more than five feet above 
 the normal for more than thirteen days. In July it would be ten 
 feet above the normal about six days. For five days it was fifteen 
 feet above the normal. At the flood time it was 20 feet 11 inches 
 and three quarters above the normal. 
 
 1091 Redirect examination. 
 
 By Mr. Ashbaugh : 
 
 The rise in the Walnut river from an ordinary rain would not 
 affect the water power at all, and a simple and ordinary rise in the 
 water would not affect it. 
 
 Kinsley, Kansas, August 25, 1904. 
 
 1093 R. E. Edwards, Kinsley, Kansas. 
 
 Direct examination. 
 
 Bv Mr. Ashbaugh: 
 
 I am 63 years old. I have lived in Kinsley, Kansas, 29 }^ears. I 
 came here in the summer of 1875. Mv business is banking and 
 merchandizing. I have also run a lumber business a good deal of 
 the time. I have done a good deal of business all over this 
 
 1094 county and somewhat further. I have a very good knowl- 
 edge, I think, of the lands in this and adjoining counties. I 
 
 own now somewhere near 10,000 acres. I couldn’t tell how much I 
 have owned during the last 25 years, but it has been somewhat ex- 
 tensive. It has been scattered all over this county, in different parts 
 of it. I am acquainted with the Arkansas valley from State 
 
 1095 line to State line. Kinsley is about a mile and a half from 
 the river, on the north side. The Arkansas valley here is 
 
THE STATE OF COLORADO ET AL. 
 
 425 
 
 from three to ten miles wide. All this valley we call bottom lands. 
 The first bottoms are along the river, and when we get back a vary- 
 ing distance from the river there is a rise of perhaps six inches to 
 two feet. That is called second bottom. Then when we get 
 
 1096 farther back there is a gradual rise that we frequently call 
 third bottom or upland. So there are three grades of land — 
 
 first bottom, second bottom and upland. I think the valley through 
 Edwards county will average perhaps six miles wide. The Arkan- 
 sas river flows through Edwards county to the northeast up to about 
 Great Bend ; then it bends to the east and to the south 
 
 1097 again. About one half of the land I own in this county is 
 bottom land. I have owned it probably on an average for 
 
 20 years. I have been farming it. The staple crops in this 
 county are corn, alfalfa, wheat, oats and barley, and we raise an aver- 
 age amount of vegetables of the different kinds. When I came here 
 I bought the town site, and have lived here ever since. The aver- 
 age flow of the Arkansas river excluding high water of floods, dur- 
 ing the first fifteen years after I came here, would, I think, be over 
 half bank full, and a thousand feet wide. (Objection.) 
 
 1098 The first bridge was built here in 1877 , about a mile and a 
 half east and south of Kinsley. That bridge, as I remember 
 
 it, is 900 feet long. The depth of the flow of the river during 
 those first years, excluding the flood periods, was about two feet. 
 During the last ten years a great deal of the time the river has been 
 practically dry. Tne banks have narrowed through this county very 
 materially. I don’t think the river would average over two-thirds to 
 one half as wide as it used to be. During the early years 
 
 1099 there was such a thing as the June rise. The river during 
 June used always to run bank full usually. It came 
 
 from the west, the entire length of the river. We generally 
 considered that the June rise came from the melting snows in 
 the mountains. (Objection and motion.) During the last years 
 the June rise has been very light. It runs but a short time when 
 we have it. The narrowing of the river is visible at this point and 
 almost all along its bank. On a farm I have adjoining town right here 
 I think I have from 100 to 200 acres of timber now growing in what 
 was the bed of the river when I came here, the timber being from 
 one-half inch to nearly a foot in diameter. This fact is shown 
 
 1100 at the approaches to the bridge. The bridge is actually run- 
 ning through timber now, and the abutment that was made 
 
 at the end of the bridge or near it is standing now as practically 
 buried in soil that is at least three feet high. It is now largely buried 
 in soil and back on lands that show the bed of the river when the 
 bridge was built. The cause of the deposit of that soil I would sup- 
 pose was the lack of current in the river, the debris in the river 
 naturally drifting to the banks and adhering. This filling up of 
 the banks of the river has not been artificial. I don’t think a par- 
 ticle of it ever was. It is a natural filling. I don’t know that I can 
 
426 
 
 THE STATE OF KANSAS VS. 
 
 fix the time when I first particularly noticed the diminution 
 
 1101 in the flow of the river. I was a ranchman for a number of 
 years. I had a herd of between two and three thousand. I 
 
 attribute the diminution of this water to the taking out of the water 
 in Colorado and farther west — diverting it from its sources. (Ob- 
 jection.) I have been in Colorado, and I think this diminution in 
 the water was made apparent about the dates that ditches were being 
 built. This, without examining anything, I should say was from 
 1883 to 1888. I don’t think there has been very much change in 
 the last fifteen years in the quantity of water — within ten to fifteen 
 years at least. I had no idea I would be called as a witness until 
 a few minutes ago when Mr. Smith called me. 
 
 We didn’t do very much farming the first fifteen years. My 
 
 1102 first farming began about tweuty years ago, and it was largely 
 with alfalfa. I raised a little corn then. I presume I have 
 
 planted an average of a hundred acres a year for the past twenty 
 years. I have 400 acres in corn this year. 
 
 The first bottom lands I should say are about three feet above the 
 surface of the river as it used to flow during the first fifteen years I- 
 was here. During those years I think we would strike water almost 
 any time at a depth of four feet on the first bottom lands, and I 
 have seen it where it was not more than 2J feet deep, at least a 
 man could reach down with his arm and dip the water out. 
 We would dig such wells in the early days when we were cut- 
 ting hay. You can dig down and get water at any point on this 
 bottom land by going deep enough. I don’t think there is any 
 place on the first or second bottom lands where you could not 
 get water within from 8 to 18 feet, according to the 
 
 1103 height of the bottom. I think all our water that supplies 
 these first and second bottoms comes from the west. I would 
 
 think it would be supplied from the same sources the river gets its 
 supply from. (Objection.) The water under the first bottom land 
 that I have spoken of rises and falls with the rise and fall of the 
 water in the river. I think there is a visible and substantial cur- 
 rent to this water that underlies these first bottoms, and that it 
 flows in the same direction as the river. It flows northeasterly here. 
 I think that is undoubtedly true. During those early years I think 
 the crops grown and planted upon the bottom lands derived their 
 supply of moisture more from the river than any other source. We 
 had comparatively little rain then. I always had good alfalfa crops 
 after I began putting them out. I have always felt that this alfalfa 
 was supplied with moisture from the river. There are no 
 
 1104 marshy lands in Edwards county. I have probably had an 
 average of a thousand acres in alfalfa for the last 15 years. 
 
 The best alfalfa lands are about one half mile from the river, and 
 from that to a mile and a half, according to the condition of the 
 bottom. By the “ condition of the bottom ” I mean as to whether it 
 is too close — whether the water is too close. In other words, whether 
 the soil is too sandy. Where the soil is too sandy, where it is com- 
 
THE STATIC OF COLORADO ET AL. 
 
 427 
 
 posed almost entirely of river sand, I have never had as good suc- 
 cess witli alfalfa as where it is a little farther back, where there is 
 less river sand and perhaps more alluvial deposit in the soil, and a 
 little harder. The best alfalfa land, as judged from the depth of the 
 underflow, is where the underflow would be 15 to 18 inches or two 
 feet from the surface of the ground. I wouldn’t want the water to 
 rise high enough to kill the roots. If it rises to the surface it will 
 actually kill the alfalfa when the sun shines. There is a happy 
 medium. I have never paid any particular attention to getting it 
 exact, but my judgment would be that the best alfalfa land is when 
 the water was very seldom nearer than two feet of the surface of the 
 top of the soil. I don’t think that land would be as valuable and 
 productive that is saturated on a level of four feet, for alfalfa, 
 
 1105 as land that is situated on a level of about two feet. I don’t 
 think that land where the water level would be on an aver- 
 age of six feet would be as good as where it is about two feet. My 
 own opinion would be that alfalfa derives its benefits from the 
 thousands of little tendrils that are within two feet of the surface, 
 that shoot off from the roots ; that it gets far more from these ten- 
 drils that are near the surface, and as the water is below them and 
 the sun drying and heating, it certainly couldn’t have the influence 
 on it that it would if it was near the surface. This opinion is based 
 upon my observation and my experience as an alfalfa raiser. 
 
 The underflow has materially decreased. The level of the under- 
 flow must be considerably lower — is lower. There is no ques- 
 
 1106 tion about that. The lowering of this underflow has dimin- 
 ished very largely the production of alfalfa upon these bottom 
 
 lands. It has had the same deleterious effect upon the production 
 of other crops upon these bottom lands; perhaps not to as great an 
 extent, but it has had a bad effect. If the underflow should be de- 
 creased and should go lower, I think it would be still worse. (Ob- 
 jection.) We had a better crop always when the river was running 
 nearly bank full than when there was no water — when there was 
 comparatively little water. We had a better crop then, I suppose 
 because the moisture permeated the entire surface of the ground. 
 It is porous soil, and I suppose the water permeates through it. 
 Whenever it is there I suppose it is circulating all through 
 
 1107 the soil. I know that to be a fact by experience. The soil is 
 deeper when the river is full than when it is not. The soil 
 
 in these bottom lands is rather light, porous soil, and the water from 
 the river would make it moist. 
 
 My alfalfa crops during the last few years have been slowly grow- 
 ing less and less every year, and the cause of that has been 
 
 1108 the lack of moisture in the soil — the absence of water in the 
 river. This decreased productiveness of alfalfa exists on 
 
 other lands than those that I own and extends the entire length 
 and width of the valley, I think. 
 
428 
 
 THE STATE OF KANSAS VS. 
 
 Cross-examination. 
 
 By Mr. Dawson : 
 
 When I came here I settled in the town. I have never lived on 
 any farm outside of the town. I have not lived on the farms, 
 
 1109 but I have driven to them. I have been engaged in this city 
 and county in the lumber business and in banking. I am 
 
 still interested in the bank. This part of the country was first set- 
 tled by farmers — homesteaders — and about the same time the cattle 
 men were occupying the country south of here. I guess the largest 
 crowd came from about 1880 to 1883 or 1884, but they were coming 
 from the time I came here quite rapidly until nearly all the Govern- 
 ment lands were taken up. 
 
 1110 Kinsley is located at about the 99th meridian. We didn’t 
 try to raise crops, only on the river bottom, very much west 
 
 of here. I think as the country ripens and we go farther west it 
 gets continually better adapted to the growing of crops. I think the 
 river bottom gets the same increase in rainfall that the up- 
 
 1111 lands get; practically alike, I think. Possibly in this vi- 
 cinity the increased rainfall has made the uplands more 
 
 productive and has off-set or compensated any loss of water 
 that existed twenty years ago, but we haven’t enough with all. 
 The diminution of the water from the natural sources of supply 
 might be offset by some present changes of climate, but if we had 
 the same sources of supply in addition, the river bottoms would still 
 hold the same supremacy they had. If we still had the underflow 
 and also the increased rains, I think our bottom lands would be still 
 better than they are. I think the increased rainfall is the result of 
 the growth of timber along the river bottoms ; more from this than 
 from any other one cause, as far as I am able to see. The prevail- 
 ing winds in this section are from the south or southwest or south- 
 east — from the south largely. 
 
 There was a time when the people who settled in this immediate 
 vicinity with the expectation of farming got discouraged and 
 
 1112 left the country. Probably the greatest loss of population was 
 in 1885 to 1887, 1888, or 1889, or somewhere in the ’90’s. After 
 
 that depopulation there was a considerable quantity of land that 
 was sold cheap by those people who were going away. The 
 
 1113 great majority of the land was sold to the mortgage com- 
 panies by lending money on it. The mortgage companies 
 
 took these lands on the mortgages, and usually they went through 
 the process of foreclosure. Considerable of these lands were pur- 
 chased on tax sales, not as much here as farther west. I got very 
 little of my land in that way. The greatest rush of people away was 
 during the depressing period, somewhere from 1885 to 1890 
 
 1114 or 1891 or 1892 — along there. There was a time earlier than 
 that, as early as 1880 to 1883, when a good many went out, 
 
 and a great many came in along about that time. A great many 
 came in about 1883. I sold my cattle ranch in 1884 at one-half of 
 
THE STATE OP COLORADO ET At. 429 
 
 what I was offered the year before. That tells the story as well as 
 anything I can think of. 
 
 I am of the impression that my first visit to Colorado was in 1875, 
 at the time I settled here. I have the impression that I visited 
 Colorado in 1878. 
 
 1115 I have some hearsay knowledge that ditches were being 
 largely constructed in Colorado along in the late ’80’s. I saw 
 
 more or less of them. I heard it pretty generally talked and saw it 
 discussed in the papers. I never attended any of the meetings 
 of the irrigations congress or any other irrigation meeting. I had 
 some money in a ditch here at Kinsley ; it was for the irrigation of 
 the soil. We proposed to take the water from the Arkansas river 
 by tapping the surface flow. I think the canal has generally gone 
 by the name of the Crawford ditch. (Objection.) 1 think this was 
 as early as 1879. It headed about four miles up the river, and was 
 completed. It ran to this town. It was at a depth from 
 
 1116 about on a level with the river bottom to about 12 
 feet, and the width was from about 6 to 15 or 20 feet. 
 
 As I estimate it, it was proposed to cover, say, seven or 
 eight thousand acres. No crops were ever irrigated from it, but 
 the water was turned into it. It ran just as short a time as we could 
 possibly allow it to. It came very near washing the country out. We 
 sent the entire force of the country up there to dam the ditch. 
 
 1117 We dammed the ditch to shut off the flow of the river into the 
 ditch to keep it from washing the town out here. The cur- 
 rent came down the river pretty strong, and it seemed to run in the 
 ditch better than in its natural channel. After that nothing was 
 done with the ditch except to see that it was kept thoroughly closed 
 
 up at its source. When I first came here the water in the 
 
 1118 river would approximate from IS inches to 2 feet. The water 
 under the soil would be about level with the water in the 
 
 river, from 18 inches to 2 feet, usually, close to the river, and that 
 made better crops than we would otherwise have had, and it con- 
 tinued to hold that level up until towards 1890 — say 1885 to 1890, 
 along there. There was hardly a season when there was no water 
 in the river for any very long continued period up to 1885, and we 
 were practically sure of good crops on the first bottom, unless hot 
 winds killed them. Yes, we had hot winds in those days; they are 
 not as severe now as they were. They would kill a growing crop 
 if it was hot enough. 
 
 1119 The lands which this irrigation ditch that I was interested 
 in was intended to irrigate lay on both sides of the ditch, 
 
 west of Kinsley. They were bottom lands. We wanted the water 
 to make the crop conditions better — to furnish still more moisture. 
 We have always needed more moisture. Kansas is always dry, you 
 know. With the underflow a couple of feet under the ground we 
 were hardly wet enough. I think we can strike water anywhere 
 within ten or fifteen feet of the surface here now on the bottom lands 
 anywhere. I don’t think you can strike water on the bottom lands 
 
430 
 
 THK STATE OF KANSAS VS. 
 
 between here and the river at from two and a half to five feet until 
 you are closer to the river. Probably within twenty rods of 
 
 1120 the river you will strike water within five feet. If you sink 
 a well or hole on the bottom about one half mile away from 
 
 the river, I think the water will show any rise or fall of the river. 
 I don’t know that I have ever tried it or that I have ever sunk a 
 hole. I think the. water will rise in the hole to the level of the 
 river. I never ran any levels to ascertain that fact ; I am using my 
 judgment about it. I have noticed the time it would take the water 
 to show some effect from a rise in the river or a fall. I have 
 noticed that our crops looked greener immediately after a 
 
 1121 June rise. We frequently have rains in June. I think there 
 is no doubt that the water travels through the soil, but I 
 
 can’t state in terms its rapidity. I base that upon observation. I 
 think if it was dry and that if during the dry time the river should 
 rise and run bank-full as it has frequently done — I think within 
 twenty-four hours you would see a brighter green on your crops. I 
 think that at least a mile and a half or two miles from the river, and 
 I guess anywhere the width of the river bottom, it would show in 
 twenty-four hours, but I think you would see it very decidedly 
 within a mile or a mile and a half within twenty-four hours. I 
 think my alfalfa shows that perceptibly. 
 
 I don’t know how the flow of the river is at the present time. If 
 it be true that the channel is practically covered under the 
 
 1122 bridge down here this morning and has been that way for 
 three days, then that is a fair flow of water for this time. 
 
 1123 Practically, my idea is this, that at all times and under all 
 conditions there is a certain amount of water running under 
 
 the soil here. When the water in the river is high }mu will strike 
 that water quicker than when it is low, a good deal. I think we 
 have to go deeper now to get water, as a general thing, than we 
 used to. I think this water comes from the source of supply of the 
 river. 1 don’t know that it comes from the river alone. I think it 
 comes from the source of supply and permeates the whole 
 
 1124 country. I think when the water is all taken out of the 
 river it diminishes the supply of water in the soil all over the 
 
 country that is affected by the river, and I think the river affects 
 the soil. I also think there is a great deal of water derived from 
 the same source of supply that comes from the river — that forms 
 the river — but when it is running and forming a current in the 
 river I think we get more of it than where it is being stopped 
 
 1125 and absorbed by the land every where. I have never made 
 any investigation or experiment to determine as a fact that 
 
 this underground water has any perceptible flow. I have observed 
 that it has a fixed current. I have dug two or three holes on the 
 river bottom and the water seemed to come in from the upper 
 
 1126 side and flow across. I think when you sink a hole it comes 
 some from all directions. I think the water, as I have found 
 
 it on these bottom lands, is usually percolating through the soil. 
 
THE STATE OE COLORADO ET AL. 
 
 431 
 
 If you dig a hole I think the water would come in from toward 
 the river and from up the river. It would come more from toward 
 the river. 
 
 1127 Coon creek here runs practically parallel with the river 
 for quite a long distance. The distance from the river varies. 
 
 I guess in some cases it is a mile and a quarter from the river. 
 Coon creek heads away up towards Dodge City, which would he 
 west, and it empties into the river about 15 miles east of here. It 
 is between Kinsley and the river, and runs through the 
 
 1128 southern part of the town. These bottom lands that I have 
 been speaking of are on both sides of Coon creek. Coon 
 
 creek used to be a constantly flowing stream ; now it runs only 
 part of the time. It is running now comparatively little of the 
 time. There is a little water. I don’t believe there is any water in 
 Coon creek a mile west of town. There are holes where there is 
 water in Coon creek west of the town, but there is no running water. 
 I don’t believe there is a bit of running water after you get outside 
 of the town limits. 
 
 Taking the drainage of the Arkansas river in Edwards county, I 
 guess there is an increase under the plow now over what there was 
 prior to 1885. I should say the increase was probably 15 per 
 
 1129 cent. There has been much upland put under cultivation in 
 the last 18 or 20 years, and the bottom lands are kept for 
 
 hay. Hay is raised there and is worth more than anything else. 
 As to the percentage of increase of lands used for farming purposes, 
 I would say it has been more than 50 per cent, in tiie last 20 years 
 back to the county line. I think as you increase the lands under 
 cultivation you diminish the run-off of water that falls upon the 
 soil from rain from what it was when the land was in its natural 
 condition. I think this would have so little effect upon the flow 
 of water in Coon creek and in the Arkansas river that it would be 
 hardly perceptible. Of course in cases of flood when there is 
 enough to run off it would, but I don’t think there would be any 
 permanent perceptible effect. 
 
 1130 I think Kinsley is about 160 miles from the Colorado State 
 line. I think if the ground is cultivated and broken it will 
 
 absorb more and let less run off into the creek, but there wouldn’t 
 be enough anyway except in case of extreme storms to run into the 
 river. If the increase of cultivated lands extends in the same per- 
 centage to the Colorado State line I don’t believe it would have any 
 effect on the flow of the river. I don’t think but very little 
 
 1131 of the water of the river comes from the drainage area of the 
 river in Kansas or in Colorado. My idea of the source of 
 
 supply is the mountains. I don’t know but very little about the 
 mountain area winch the Arkansas river drains. I have an im- 
 pression, but I don’t know but very little about it. I have seen the 
 river running bank full certainly as far west as Pueblo. The 
 stream is narrower there, but a pretty good, healthy stream. I 
 think the ground water here on the first bottoms would average 
 
432 THE STATIC OP KANSAS VS. 
 
 about two Feet lower than it was the first 15 years I knew the stream, 
 and when I first knew it it was about two feet under the soil. 
 
 1132 I have-a good many windmills. I counted them un a few 
 days ago, and I think it is 21 that I have. They are not all 
 
 pumping water from this underflow; some of them are on the 
 upland. Probably one-half of them are on the bottom land. I 
 don’t believe the underflow extends back under the up-lands. When 
 we get 15 or 20 miles back I don’t believe it affects it very much. 
 I don’t think the water level is higher as you go back from 
 
 1133 the river. If it should prove to be a fact by actual surveys 
 and levels run that the water level is higher away from the 
 
 river, it would not affect my opinion as to whether that under- 
 ground water is fed by the river or derives its supply from some 
 other source. With my observation as it lias been, whatever I might 
 learn hereafter would not change the ideas I have previously formed 
 regarding the effect of the river on our bottoms here. If you were 
 to sink to water here on this first bottom where the town is and 
 should find that the water level was a foot higher than the 
 
 1134 water level in the river, I would still believe that the water 
 level was influenced by the river. I would think from my 
 
 observation that the river has a very great influence always on the 
 water conditions in this country. I can’t get away from that by 
 anything. I don’t think the flow of the water in the river is much 
 affected by the water that falls on the soil in this part of Kansas. 
 We get all that and hold it in the ground very largely, except in 
 extreme storms. 
 
 Q. Then your idea is to keep all that water and not let it go down 
 stream, if }mu can ? 
 
 A. I think we keep a very great part of it. 
 
 Q. Are you one of those who object to our trying to do the same 
 thing — keep that which falls up there in Colorado? 
 
 (Objection.) 
 
 A. I have always felt that Colorado has a right to take that water. 
 Yes, I have always believed that Colorado had a right to take the 
 water, just the same as I have a right to take it on my land. 
 
 1135 I consider the alfalfa to be the best crop we raise along 
 these bottom lands in this part of Kansas. I consider it the 
 
 most profitable for the uses I can put it to. With the breeding of 
 my fine cattle I think my alfalfa is worth more to me than any 
 other crop, because I can’t buy it and I can buy corn. Alfalfa has 
 been, with me, on the average, as sure and profitable a crop as can 
 be raised on the bottom lands in this country. A good many 
 
 1136 other men think otherwise. I began cultivating it 20 years 
 ago. My alfalfa crops for the last ten years, on an average, 
 
 have not been more than one half as much per acre as for the first 
 ten years that I was growing it. I attribute that entirely to the fact 
 that there was but very little water in the river, and that the water 
 
TftF STATfc OF COLORADO FT AL. 
 
 43S 
 
 during the last ten years was practically four feet under the 
 
 1137 surface while it used to be but two. This year we have had 
 a good deal of water and my alfalfa has shown better. We 
 
 have had a favorable year this year so far as rains are concerned, 
 with the exception of early in the season. I have not given 
 much attention to the river. I don’t think there has been much 
 water in the river. I have been very feeble and for the last 
 two or three months I have not been to the river but once 
 or twice in that time. I think the increased productiveness of 
 the land in alfalfa this year is probably due to the rainfall. 
 I think if we had rain enough we would not need the river at 
 all. I think the same conditions that affect the alfalfa would be 
 very likely to affect other crops, practically about the same, I think. 
 The value of my bottom lands in Edwards county on the 
 
 1138 Arkansas river are as high now as they ever have been. 
 They have increased gradually during the last’twenty years 
 
 with the settlement of the country. There has been more or less in- 
 crease in the last ten years, not only in bottom lands but all lands — 
 lauds everywhere. I think the maximum difference between the 
 high and low water in the river as a rule is not more than three or 
 four feet at the outside. 
 
 I was about to say that the largest crop of wheat 1 have ever 
 known here was raised in 1877 or 1878, but that is not true. There 
 was some here last year that was as high in production as ever 
 known. In 1903 there was a crop of wheat down below here of 
 twelve acres that went 52 bushels to the acre. The average 
 
 1139 wheat crop on the bottom last year was good. I guess there 
 was not very much difference between the crop in 1903 and 
 
 the crops in the early ’80’s and late ’70’s. There was considerable 
 moisture last year, so much so that we could not use a threshing 
 machine outfit. I don’t know as I paid any special attention to the 
 river last year more than at anv other time. The river was dry the 
 great bulk of the year. There has not been near as much water in 
 the river in the winter time at this point as there was during the 
 first ten years I knew the stream. I think the depreciation is fully 
 one half. 
 
 1140 Redirect examination. 
 
 By Mr. Ashbaugh : 
 
 I think the conditions I have described as to my own alfalfa lands 
 are true of others through this county. I don’t believe I am 
 
 1141 averaging more than a ton of alfalfa to the acre dur ing the 
 year. I make two or three cuttings a year. That is about 
 
 one half of a similar crop that I raised years ago. I think I have 
 about six or seven hundred acres in alfalfa now. I think this fall- 
 ing off has affected the balance of the crop as well as mine. Our 
 alfalfa or practically all of it is on the bottom lands. Alfalfa is 
 worth about $5 a ton. That is about the average price. Hay is 
 28 — 7 
 
4S4 
 
 STATE OF KANSAS VS. 
 
 produced on bottom lands to quite an extent. This same 
 
 1142 condition as to alfalfa extends also to hay lands, I think. I 
 have as much hay land as I have of alfalfa — about 600 acres. 
 
 I think there is a larger per cent of our river bottoms in hay than 
 in alfalfa. The average crop of hay on these bottom lands now is 
 about half a ton to the acre. This is worth on an average about $3 
 per ton. I think the falling off in vegetables that are grown on the 
 bottom lands is about the same. I have for the last few years usu- 
 ally had about 200 head of registered cattle. I have about 100 head 
 now. I think that our rainfall is continually increasing — 
 
 1143 gradually. Especially is this true in the summer season. I 
 think the level of the river falls before the level of saturation 
 
 back a mile or two. There might be a very short time before a rise 
 or fall in the river would affect the level back a mile or so (objec- 
 tion), but finally it will level itself with the level in the river. 
 Coon creek does not follow exactly the windings of the Arkansas 
 river. It is a winding stream itself, caused by the difference in the 
 level of the land through which it runs. The drainage does not go 
 directly to the river from the high lands. Coon creek lies in be- 
 tween. Coon creek will rise and run bank full when there 
 
 1144 is no water in the river, for a short time. This ‘valley in 
 
 Edwards county was settled first in 1873. It settled very 
 
 1145 rapidly during 1876 and 1877. 
 
 Q. In response to a question asked by counsel you said 
 that you considered that Colorado had a right to take the water. 
 You were speaking of a legal right? 
 
 A. That was my idea, yes, sir. Oh, I don’t think I have the 
 ability to determine the legal right, or the moral right either, 
 perhaps. 
 
 Q. Then in all this testimony you have given it has not been 
 affected by any animosity toward Colorado or the ditch companies? 
 A. Oh, no, I only regret the conditions. 
 
 Recross-examination. 
 
 By Mr. Dawson : 
 
 I have been in the habit of allowing my alfalfa to go to seed from 
 time to time, and to a limited extent I have allowed the seed to fall 
 on the land. I have usually cut it. I have cut it for the seed and 
 sowed the seed. I think I allowed about thirty or fort^y acres to re- 
 seed itself by falling off. That is guess work, though. I think it is 
 doubtful whether after you once get a stand of alfalfa it is 
 
 1146 betler for the first three or four years than it is as it gets 
 older. I think my best alfalfa is that which has always been 
 
 the best. The first crops I put out are the best I have now on two 
 or three pieces. That may be on the best ground. There are a 
 good many things about alfalfa that I don’t know. In fact I don’t 
 think I know hardly anything of it. 
 
THE STaTh: OE (OLobaDO ET AI 
 
 435 
 
 Redirect examination. 
 
 By Mr. Ashbaugh : 
 
 1147 I have had a crop of alfalfa seed as high as 15 bushels to 
 the acre and as low as practically nothing. 
 
 1148 I consider four bushels a good crop. I have sold alfalfa 
 seed as low as three dollars and as high as nine dollars per 
 
 bushel, and a good yearly average would probably be about 
 five dollars per bushel. I was at Rocky Ford Colorado, three 
 years ago. I examined one field of alfalfa. The conditions were 
 absolute perfection. I think the man told me that he had thirteen 
 tons per acre from that season’s crop, and I think they made five 
 cuttings. As compared with my crop at Kinsley I think I had that 
 year about seven hundred acres of alfalfa, and I think he 
 
 1149 had about as much, in tons, on eighty acres as I had on my 
 seven hundred. I hardly think he could have raised any 
 
 seed under the methods he employed. He had too many cuttings 
 and too much water. His was raised under irrigation, and with 
 perfect conditions. This year I have corn that my men are esti- 
 mating at forty bushels. Probably there will be twenty-five bushels 
 to the acre. I think I must have at least three hundred acres of 
 corn this year, and probably more. I think my corn on the bottoms 
 has fallen off in the last ten years in the same proportion that my 
 alfalfa has fallen off that I have testified to. I should think that 
 this same decrease would apply to other crops on the bottoms in 
 this county. (Objection.) I don’t believe I can give any data as to 
 how much corn there is raised in this county. I would guess a 
 hundred bushels. I think our corn averages fifteen to twenty 
 
 1150 bushels to the acre as a general thing here. I have never 
 known corn to sell for less than twenty-five cents here, and 
 
 from that to fifty. Perhaps thirty to forty cents would be a fair 
 price. 
 
 1151 Floyd E. Wellman, Kinsley, Kansas. 
 
 Direct examination. 
 
 By Mr. Smith : 
 
 I have lived in Kinsley since 1885. I have been farming and in 
 the cattle business. I have been familiar with the conditions in 
 the Arkansas valley and on the bottom lands in Edwards county, 
 and have repaired the two bridges near Kinsley. The south 
 
 1152 bridge here is a thousand feet long. The amount of water 
 in the river on the average, excluding the floods, is just one- 
 
 half as wide as it was at the average flow when I came here. As to 
 the volume of water in the river, we haven’t got any, practically, 
 only at certain times in floods, until this year. The flow at that 
 bridge has filled up just one-half the length of the bridge on the 
 
*THE STATE OF It A NS Ag VS. 
 
 486 
 
 south or east side. The bridge runs north and south. I put In £ 
 wing darn on the east side of the bridge. When we nailed the up- 
 rights onto those timbers that are fastened we had to work in the 
 water. The water just came up to my chin when we were 
 
 1153 putting in those planks. The object of putting the wing dam 
 in was to keep it from washing out. Now it is all filled in 
 
 pretty nearly to the top of it with dirt and trees and every- 
 thing else but water. This filling extends probably three hun- 
 dred and fifty to four hundred feet there at that place at 
 the south side of the bridge. There is a wing on the west 
 end of the bridge also. That is, all the water there is on the west 
 half of the bridge, and that wing is in the water. The ground that 
 has filled in has grass and trees growing on it. It is not cultivated 
 or anything ; it is all grass. I couldn’t say that there was any fence 
 on it. The water in the river on the average as compared 
 
 1154 with what it was when I first came here, excluding floods, is 
 probably one-fourth. I first noticed the decrease in the flow 
 
 somewhere about 1890. During the years when I first came here 
 there were no months in the year when the river was entirely dry, 
 I have never seen during those years very much difference in it 
 through the summer season. Generally there was about a foot to 
 two feet of water in it at that time. The particular time of what is 
 known as the June rise in those early days came when the snow be- 
 gan to melt in the mountains and we would have a flood, that is all. 
 We haven’t had many rises lately. 
 
 1155 I am familiar with the crops grown on the bottom lands. 
 We used to get about a ton of prairie hay to the acre in those 
 
 early days. Now it will run eight to ten hundred pounds, generally 
 speaking, on the bottom. I have had considerable experience with 
 alfalfa, and it is not nearly as thrifty as it used to be. The produc- 
 tion of alfalfa on the bottoms now I wouldn’t want to put over one- 
 half as good as it was thirteen or fourteen years ago. 
 
 I have had occasion to notice the underflow, particularly along 
 on the north side of the river, and also here in town. There 
 
 1156 is some curent to it. It is enough so that you can notice it. 
 I have noticed that in digging wells here it always clears on 
 
 the upper side first. By the “upper side” I mean up the river. 
 When it is all stirred up, when you are digging and get done, it be- 
 gins to clear, and that always leads me to think there is a current 
 there. It goes out on the other side, because it clears on the up 
 side first. This underflow is not now as close to the top of the 
 ground on the bottoms as it was when I came here first. It is about 
 two feet lower. We do not get water in the wells at the same depth 
 we did fifteen or twenty years ago, by at least two feet, and in some 
 places it is more. 
 
 This filling in of the river was a natural filling — not arti- 
 
 1157 ficial. The cause of this filling in is that sand blows in there 
 and I know that when we get these high waters coming down 
 
 here there is always a great deal of sediment left in the river when it 
 
THE STATE OF COLORADO ET AL. 
 
 437 
 
 goes dry. I noticed this process of filling in more along about 1890, 
 and it has been gradually filling since then. The river began to 
 fill up about the time the flow began to decrease. (Objection.! 
 
 Since 1890 we have 1 i ad very few June rises, until the year 
 1158 1904. The biggest one we had was in 1895. The water in 
 
 wells and excavations on the bottoms here rises and falls 
 with the rise and fall of the river. (Objection) When I lived up 
 the river we used to put a box down in the dirt. When the river 
 was running full that water would come up and that is where the 
 cattle got their water. When the water would go down in the river 
 there would be no water there. Now they have to use a wind mill 
 where they used to use those boxes. That is about half or three 
 quarters of a mile from the river. 
 
 Cross-examination. 
 
 By Mr. Hayt : 
 
 I came here from Wilson county, Kansas, when I came to this 
 place. I lived in Wilson county, 1 think, about three or four 
 1559 years. Before that I lived in Miama county, Kansas, two or 
 three years, and before that I came from Independence, Iowa. 
 Up to the time I came here I had been following about the same 
 occupation I have here — farming some. That has been my princi- 
 pal occupation, but I have been at other jobs outside. I have 
 handled stock ever since I have been here, mostly raising stock 
 and handling them some of the time, and worked for cattle men 
 here. 
 
 1160 I have dug wells and cisterns here, and I have dug cellars 
 here. Most of them have been here in town between this 
 
 and the river. One of them is on the city park or race tracks. 
 These cisterns were in town here. We stopped before we got to 
 water. We bored to the water for the cisterns. Of course we would 
 have to stop before we got to the water. You can’t go to that. I 
 may have dug ten or fifteen wells here. Usually when we 
 
 1161 came to the level of the river we found water in these wells. 
 We have never run any levels to find whether the water we 
 
 struck in the wells was the same level as the water in the river, but 
 they have run lots of levels here to find a place of drainage. I 
 have never investigated this water level outside, away from the 
 river, farther than this town. They have run levels here to see if 
 they could get drainage, and I have seen it done. I think I have 
 never investigated enough to say how this water level compares 
 with the water level in the river. In digging these wells I could 
 generally tell about what I had to do to get water. I think I un- 
 derstood it all right. If there was a rise in the river it showed in a 
 very short time on those boxes we used up on the bottom 
 
 1162 here. I couldn’t set any definite time as to how long it took 
 it to appear here in town, because I never investigated it 
 
 thoroughly. 
 
438 
 
 THE STATE OF KANSAS VS. 
 
 These boxes I spoke of as having been put in one-half or three- 
 quarters of a mile from the river were put in on the ordinary level. 
 There is no low place along there. A rise in the river would show 
 in those boxes in a short time, not over two or three days. If the 
 water receded in the river I suppose it would lower the level in 
 those boxes some in two or three days. I know we always knew 
 the river was going down as soon as our water was going, whether 
 we would look at the river or not. 
 
 1163 One of those bridges I spoke of is located east and the 
 other south of town. The east bridge is about two miles 
 
 from this building and the south bridge probably one-fourth or one- 
 half a mile farther. These bridges where the river runs are about 
 a mile and a half or two miles apart. We have had considerable 
 water this year. When it rises here, from two to three days we 
 have a rise in the river. This year it has been there in the month 
 of June that way, not very long but most of the time. There 
 
 1164 is no difference in the channel of the river at the south side 
 of the bridge, only that it has filled up. There was a chan- 
 nel clear across it in those times. The main channel was not on 
 that side of the river. Whatever channel was on that side has 
 filled up. It has narrowed the river just half on the bridge. This 
 building here where we are taking testimony is located on the 
 
 conrer of Marsh avenue and Sixth street in the town of Kinsley. 
 
 1165 I have been up in the mountains and I know’ something 
 about the snows melting in the mountains. I have been 
 
 there several times. The first time I was ever up there was in 1890, 
 I believe. I crossed the Arkansas river right below Leadville. 
 They called it the Arkansas junction there. That was in the latter 
 part of June. The river was not full, but there was con- 
 
 1166 siderable water in it. I didn’t see the river after that time 
 
 that year until late. 1 have seen the river right close to the 
 
 head waters at another time, but I don’t remember the year. 
 
 In speaking of the hay crop in the bottom I am speaking of the 
 hay crop as a general thing. I have a hay crop myself. It goes 
 from eight to ten hundred pounds to the acre this year. That is- 
 about an average this year, and a pretty good average too. The 
 hay crop in this locality is considerably better than it was last year. 
 I raised some alfalfa. Our alfalfa is better this year than last. We 
 
 have had more water on it. We have had some rain. I 
 
 1167 don’t know whether we have had any more or not. We 
 don’t have a good hav crop or good alfalfa crop when the 
 
 water in the river at this point is low. In my experience it has not 
 rained enough to do it good, although it might. I know we have 
 had probably more rain this year than we have had before for some 
 time. They raise crops here sometimes without water from the 
 river. We don’t have good hay crops here any more. If there 
 
 1168 is plenty of water in the river we get a fair hay crop. We 
 used to have good hay crops when there was lots of water in 
 
 the river. When there is plenty of water in the river we most 
 
THU STATE OF COLORADO ET AL. 
 
 439 
 
 always have rains. I suppose the farmers back in the country in 
 this vicinity depend largely and generally upon rainfall for their 
 crops. If you were asking me about both the bottoms and the up- 
 lands, I don’t know anything about this. As to whether we have 
 plenty of water in the river when we have plenty of rain, that is 
 what causes it, maybe. You take it in the rainy season, and there 
 is plenty of water in the river, and there is plenty of rain, 
 
 1169 but we generally get the water coming down in the river first 
 before the rain starts. When we dig a well I don’t know 
 
 that the water comes in from all sides. The water is there when 
 you get to it. It doesn’t come in. It always clears on the upper 
 side of the well, that is, the side up the river, as far as I have 
 
 1170 had any experience with it. That is the only circumstance 
 from which I conclude that the water comes out from the 
 
 river into these wells. These wells are in this township, I think in 
 the northeast quarter of section 18, township 24, range 19. 
 
 1171 That is southwest of the town right up along the river. It 
 is between Coon creek and the river. The river and the 
 
 creek are about a mile and a quarter apart there, and it is about half 
 way between. 
 
 Redirect examination. 
 
 By Mr. Smith : 
 
 When we have local rains here I don’t know as it raises the 
 
 1172 river any. I think local rains don’t raise the river here. 
 The floods that we have in the Arkansas river when it rises 
 
 come from up the river. 
 
 Recross- examination. 
 
 By Mr. Hayt : 
 
 I have never been up the Arkansas river above Pueblo. I know 
 that the river has a large drainage above here in Kansas, as well as 
 in Colorado outside of the mountains, that it drains a large area in 
 Colorado and Kansas. I know also that when they have a big 
 flood up there and the railroad washes out, in about a week we have 
 a big flood here. That is in dry times. It takes it about a 
 
 1173 week to get here. We have had rises in the river here right 
 along this month. We have one now that came up here 
 
 Sunday night. I don’t know where that originated. It takes a 
 flood longer to come down when it is all dried up. I don’t know 
 of any streams in this county that discharge into the Arkansas 
 river. 
 
440 
 
 THi STA’i K OF K A N>AS VS. 
 
 1174 D. D Baxteii, Kinsley, Kansas. 
 
 Direct examination. 
 
 Bv Mr. Smith : 
 
 I am the county clerk of E4 wards county, and as such county 
 clerk I have in my office the returns of the township assessors of 
 this county, showing the acreage of the various crops of corn in this 
 county from year to year. These returns show the total acreage of 
 alfalfa in Edwards county for the year 1896 to be 4,976 acres. The 
 latest record is for 1904, and this record shows the acreage of alfalfa 
 for 1904 in Edwards county to be 1,777 acres. These records are 
 compiled by the township assessors of Edwards county, and are re- 
 turned to the secretary of the board of agriculture of the State of 
 Kansas. 
 
 1175 Cross-examination. 
 
 By Mr. Dawson : 
 
 The only reason I can see for the falling off in the acreage of 
 alfalfa between those two years is because it has not been a profit- 
 able crop between that time and this. (Objection.) The crop in- 
 creased from 1896 to 1898. In 1898 it was more than six thousand 
 acres, if I remember right, but from that time to this it has steadily 
 decreased every year so far. I have the other books for the years 
 intervening. 
 
 (By request of counsel for the State of Colorado, the witness pro- 
 duced the records of the township assessors for Edwards county from 
 the time when the records were kept down te and including the 
 year 1904, showing the acreage of alfalfa, wheat, corn and oats, which 
 records show as follows :) 
 
 
 Alfalfa. 
 
 Wheat. 
 
 Corn. 
 
 Oats. 
 
 1886 
 
 
 7338 
 
 21254 
 
 5559 
 
 1887 
 
 a u 
 
 2395 
 
 2100 
 
 2100 
 
 1888.... 
 
 U (( 
 
 32091 
 
 24762 
 
 5975 
 
 1889 
 
 u u 
 
 3397 
 
 23100 
 
 5428 
 
 1890 
 
 a u 
 
 9291 
 
 20583 
 
 6030 
 
 1891 
 
 U (i 
 
 19564 
 
 13596 
 
 7304 
 
 1892 
 
 451 
 
 29923 
 
 12899 
 
 8114 
 
 1893 
 
 481 
 
 40739 
 
 11512 
 
 9363 
 
 1894 
 
 1155 
 
 45415 
 
 14841 
 
 6263 
 
 1895 
 
 2088 
 
 47479 
 
 20346 
 
 8658 
 
 1896 
 
 4976 
 
 40024 
 
 20789 
 
 10425 
 
 1897 
 
 2930 
 
 37052 
 
 23595 
 
 6507 
 
 1898 
 
 6923 
 
 47916 
 
 18747 
 
 5427 
 
 1899 
 
 4801 
 
 47644 
 
 19374 
 
 4293 
 
 1900 
 
 1961 
 
 43525 
 
 25032 
 
 5145 
 
 1901 
 
 1776 
 
 58668 
 
 20396 
 
 5784 
 
 1902 
 
 1559 
 
 69182 
 
 21945 
 
 4734 
 
 1903 
 
 1724 
 
 58481 
 
 20079 
 
 7216 
 
 1904 
 
 1777 
 
 130165 
 
 23396 
 
 5311 
 
THE STATE OK COLORADO ET AL. 441 
 
 1180 These records which I have been reading from are such as 
 by law we are required to keep in our office. 
 
 1181 William H. Vernon, Kinsley, Kansas. 
 
 Direct examination. 
 
 By Mr. Smith : 
 
 I have lived at Larned, Pawnee county, Kansas, since October, 
 1875. I am familiar with the bottom lands in Pawnee county, 
 which are practically the same as the bottom lands in Edwards 
 county. The first bottom lands in Pawnee county, I think, average 
 from three to five miles wide. I have observed the flow and volume 
 of the Arkansas river frequently since I have lived here. 
 
 1182 From the time I first located in Larned until, I think, in 
 
 the late ’80’s there was quite a volume of water in the river. 
 
 It was flowing ail the time. Since that time the normal condition 
 
 of the river has been dry — no water in it at all. In those early days 
 I should say the width of the river was eight hundred to a thousand 
 feet, somewhere along there. During those early days the average 
 depth was probably from one and a half to two feet. That would 
 vary very much. In places it would be very deep and in other 
 places very shallow. The average across the bed of the river would 
 probably be one and a half to two feet. The bed of the river has 
 changed very materially through Pawnee county, in fact it is 
 very much narrower than it was, and it has filled up until 
 
 there is hardly any river there. It has willows and brush 
 
 grown in the river, and it has filled up with sand until it 
 is practically almost level with the country. It is difficult to see 
 there was a stream, almost, at places. I can’t fix the date exactly 
 when I first noticed this diminished flow, but it was probably 
 
 1183 in the late ’80’s. During the first years afterl went there the 
 river was fairly well stocked with fish. There are no fish in 
 
 the river there now and have not been since the time it first went 
 dry. At the time it first went dry in our country there was a great 
 many fish caught in little pools where it dried up. They got them 
 by the fork load and wagon load and hastily constructed seines. 
 There were all kinds of fish. I think there has been no fish at all 
 in the river since that time. 
 
 Alfalfa is principally grown in Pawnee county on the river bot- 
 tom — I think in fact altogether in the river and creek bottoms. 
 Wheat is principally grown on the uplands. The principal crops 
 upon the bottoms would be feed crops and corn. Feed would in- 
 clude alfalfa. 
 
 1184 Cross-examination. 
 
 By Mr. IPayt : 
 
 If I am correct, the first time that I ever noticed the river going 
 entirely dry was some time in the late ’80’s. There were times, of 
 
442 
 
 THE STATE OF KANSAS VS. 
 
 course, when the river would be low, but I think it was alwas a run- 
 ning stream. I didn’t hear that the river was dry in 1874, and I 
 hardly think it is possible that it could have been, on account of the 
 fish in the river. 
 
 I am about fifty-three years of age, and am a lawyer by occupa- 
 tion. I have practiced law at Larned since I located there. 1 studied 
 law at Lawrence, Kansas, and was in a law office there 
 
 1185 perhapssix or nine months before I located at Larned. I have 
 had no interest in the agitation which has iesulted in this 
 
 suit, further than the interest that the citizens of this country gen- 
 erally take in the matter. I have heard it discussed and have dis- 
 cussed* it. I know that the claim is generally made that the river is 
 dry because Colorado has been taking the water, and I know from 
 observation that it is practically true. I went to Colorado in the 
 summer of 1893, in the latter part of June, and the first water 
 
 1186 I discovered on the trip was some place in Colorado towards 
 the mountains. I went up the Arkansas as far as Pueblo and 
 
 went from Pueblo to Denver. My recollection is that there was quite 
 a stream of water in the river at Pueblo and for some little distance 
 this side. I don’t remember how far this side. I was up there once 
 or twice shortly after that, and in fact took evidence in Lamar and 
 La Junta, and of course observed itat all those times, but I couldn’t fix 
 any particular date. In the winter months from November until April 
 the river here is practically dry or in a low condition. In the early 
 years after the summer flood the river would go down and would 
 be in a low condition during the winter months. It would be in 
 alow condition from that time up to the next flood, the next sum- 
 mer. We had a flood each season in the river when the river 
 
 1187 would be bank full. In the early years it was a running 
 stream during those months, and it has a dry bed now. I 
 
 don’t think the water runs here during most of January, Febru- 
 ary and March. There may be water occasionally in little pools 
 and places, but it is not a running stream. The main irrigating 
 ditch in our county was commenced and pretty nearly completed 
 just before the river went dry, and the work stopped on account of 
 the river going dry and has never been resumed since. (Objec- 
 tion.) I only remember that one ditch at that time. That 
 
 1188 was quite a ditch. It was taken out from the river some- 
 where near Garfield in our county, close towards the west 
 
 line of the county, and extended down practically to our place, 
 some ten or twelve miles in length, I should judge. I think the 
 ditch was probably ten or fifteen feet wide, somewhere along 
 there. At one time when they took the ditch out from the river 
 they got a little water for some time in the ditch, but not to the 
 extent of the ditch. I think besides that there was a ditch that 
 entered the river in the east part of our county that was 
 
 1189 taken out much later than that, for the purpose of carrying 
 water to the Cheyenne bottoms, north of Great Bend. 
 
 The rise in the river usually comes from the latter part of June 
 
THE STATE OF COLORADO ET AL. 
 
 443 
 
 up to probably the first of August, when we have high water in the 
 river. Sometimes it may cornea little earlier and sometimes later, 
 from the middle or latter part of June until the first of August. 
 The river has been up this year, and I think there has been a rise 
 in the river every year ever since I have been there. I don’t re- 
 member a year that there hasn’t been. It is usually between the 
 times I have mentioned. During that period the river usually 
 runs some water all the time, and frequently it is quite high. 
 It gets bank full, and sometimes in our county it overflows a little. 
 
 1190 Redirect examination. 
 
 By Mr. Smith : 
 
 We invariably had wet weather at the time of the rise in the 
 river. We would have our wet season. I don’t think these wet 
 seasons now come with any regularity at all. I think there have 
 been times when we have had, but there is no regularity now in 
 having a wet season at the time of the rise in the river. I think 
 this was invariable every year during the early years. I don’t know 
 of a year we didn’t have it in the early years. It is my recollection 
 that when I went to Pueblo in 1893 I saw some irrigating ditches 
 at that time. 
 
 1191 During the early years the June floods would continue 
 from two to four weeks according to the best of my recollec- 
 tion. 
 
 1194 I have been in the real estate business somewhat as well as 
 in the practice of law. During the first ten or fifteen } 7 ears 
 
 after I came here, where the bottom lands and uplands were equally 
 distant from the cit}' in location. I would say that the bottom land 
 was probably worth in the neighborhood of three times the value of 
 the upland. (Objection.) During the last five or ten years I should 
 say there was no practical difference, if the lands were Jo- 
 
 1195 cated equally distant from the market. I attribute this com- 
 parative change in the relative values now to the fact that the 
 
 continued productiveness of the bottom lands had been disappoint- 
 ing and the productiveness of the uplands had been greater than 
 was anticipated, and to the fact that the uplands are much better for 
 wheat. 
 
 Recross-examination. 
 
 By Mr. Dawson : 
 
 From my observation it has proved to be a fact that the uplands 
 raise better wheat than the bottoms. I rather think the soil of the 
 bottoms is too sandy. It is not of a nature to produce wheat as well 
 as the upland. I think the bottom lands are largely made up of the 
 same sandy constituents that the river hed itself is. I don’t think 
 at an early day the uplands were so well adapted to wheat, because 
 
444 
 
 THE STATE OF KANSAS VS. 
 
 the rain fall at ail early day came more in a bunch than it 
 
 1196 lias later, [t was not so well distributed during the year. 
 The rainfall of late years has been better distributed through- 
 out the year. 
 
 Dodge City, Kansas, Aug. 26-29, 1904. 
 
 1197 Robert N. Wright, Dodge City, Kansas. 
 
 Direct examination. 
 
 By Mr. Ashbaugh : 
 
 I live in Dodge City, Kansas. I helped lay out Dodge City in 
 July, 1872. At that time I was residing at Fort Dodge, about 
 
 1198 five miles east of Dodge City. I am sixty-four years old, and 
 came up the Arkansas river first in 1859. My business has 
 
 been diversified ; I was formerly a freighter, stock raiser and mer- 
 chant. I first freighted up the Arkansas river. For two or three 
 years I supplied the Overland Stage Company’s stations with hay 
 and grain from Fort Darned, Pawnee county, Kansas, to old 
 
 1199 Fort Lyon, Colorado. Old Fort Lyon is west of Lamar, I 
 think, on the opposite side of the river, twenty miles west, I 
 
 think, of the mouth of Big Sandy creek. 
 
 I was along the Arkansas river a great deal of the time from 1859 
 up to 1885, and was pretty familiar with it, and I have lived prac- 
 tically on it ever since. During the last few years I have been farm- 
 ing on the river bottom near here, and have been commissioner of 
 forestry for the State of Kansas. The bottom lands near the city of 
 Dodge are about a mile wide. In some places it is wider and some 
 places narrower. There are two bottoms. The second bottom ex- 
 tends to the foot of the hills, which we call the bluffs. Above the 
 
 1200 bluffs it is prairie, and we call it upland. The second bottoms 
 rise gradually up from the first bottoms and are not a great 
 
 many feet higher. During the first twenty-five } r ears that I knew 
 this river the average flow, excluding the periods of the floods and 
 freshets, I think was about two feet deep and perhaps a couple of 
 hundred yards wide. The average flow of the river during the last 
 ten or twelve years, excluding flood and freshet seasons, I 
 
 1201 think has not been half as great as it was formerly. During 
 the last ten or twelve years the river goes dry very frequently. 
 
 That condition depends upon the season. Most of the time it is dry, 
 I think one-quarter of the time during the summer. During the 
 first twenty-five years that I knew the Arkansas river there was al- 
 ways a period known as the June rise, which was the flood from the 
 mountains, almost exclusively from the mountains — the melting of 
 snows. It was generally at its height along about the first of July 
 here, and that period lasted six or eight weeks from the time it 
 reached its maximum. It would gradually rise in June, but the 
 height of the flood would be about the first of July. During those 
 
^Mrc STATE OF COLORADO ET AL. 44§ 
 
 times the water would come to the top of the ground in the low bot- 
 toms. 
 
 1202 As to there being such a thing known as an underflow, 
 why, I have never heard that disputed but what there was 
 
 an underflow. (Objection.) I mean that — in my opinion there cer- 
 tainly is an underflow. Along about twenty years ago they were 
 building a ditch on the south side of the river, the head of which 
 ditch was about twenty miles from Dodge City. Before they got to 
 within seven miles of the head of that ditcli the underflow was 
 so great in excavating that that it would swim the mules, and they 
 had to take out a waste-gate about two miles this side of that — about 
 nine miles this side of the head of the ditch — to let that water off 
 before they could go on with the excavation. It would take the 
 mules up to their bellies, and deeper, and there was quite a flow to 
 it, and they dug down and put in what they call a waste-gate to 
 take surplus water off. The underflow extended as far back as the 
 bottom would extend. As to how deep you would have to dig in 
 the early years before you found the overflow was of course in ac- 
 cordance with the amount of water in the river. Sometimes you 
 would only have to dig one or two feet when the river was at all 
 full, and as the river receded you would have to go deeper. 
 
 1203 The underflow rose and fell with the water in the river. I 
 think there was undoubtedly a slight current to the under- 
 flow in the direction of the flow of the river — generally east along 
 here — in an easterly direction. As to the effect the underflow had 
 upon the production of crops upon the bottom lands, it certainly was 
 a sub-irrigation to crops. These bottom lands during the early 
 years were mainly natural meadows, and the crop we raised was 
 hay. There is hay raised on these bottoms now, but I don’t think 
 one-half as much as formerly. This is, I think, from the lack of 
 water or moisture from underneath. There is alfalfa raised on 
 
 these bottoms now. They began raising it about twenty 
 
 1204 years ago. I think the alfalfa grew more luxuriantly then 
 than it does now, perhaps nearly one-half more, because it 
 
 had more moisture then than it has now. There is not a great deal 
 of alfalfa raised on the uplands. There is not much of the uplands 
 that is suitable for alfalfa. Alfalfa raising is confined almost en- 
 tirely to the bottom lands. 
 
 The diminution in the flow of the river and the lowering of the 
 underflow became noticeable, I should think, about fifteen years 
 ago. It was not sudden but was gradual. The lowering of the un- 
 derflow has had the same effect, I should judge, upon other crops 
 raised in the valley. The other crops are principally oats and bar- 
 ley. This is not a very good vegetable country, although 
 
 1205 they sometimes raise a good crop of potatoes, but they have 
 never been planted to any great extent. 
 
446 
 
 the s^ate oe EAtfsAs vs. 
 
 Cross-examination. 
 
 By Mr. Hayt : 
 
 I came here in 1859 and strnck the river at what they call Great 
 Bend, about where Ellin wood in Kansas is. The bottom lands 
 I suppose are two or three miles wide there. At that time I was 
 freighting to Pike’s peak. I was not quite nineteen at that time. 
 1 had my own team, three or four oxen and a wagon. I was 
 
 1206 freighting in connection with others on that trip, and I went 
 to Denver and to the mountains up there. I landed in the 
 
 summer of 1859 in what they call California gulch. I have never 
 been up there since. After we struck the river at Great Bend we 
 continued right along the river until we got to Pueblo, where we left 
 the river and followed the Fountain. It was about the first of May 
 we struck the river down here at Great Bend, I think, and we were 
 possibly four weeks going to Pueblo. I made the next trip with my 
 family, with an ox team, in 1862, up the river over the same course, 
 only to Canyon City. After 1862 I freighted vegetables from Canyon 
 down to old Fort Lyon for two or three years, then I brought 
 
 1207 a herd of cattle out from Missouri. That was about 1864 or 
 1865. After that I worked for a year or two for Barlow, San- 
 derson and Company, the old Overland Line Mail Company. I was 
 passing up and down the river then quite often from that time. It 
 was two hundred and forty miles from Fort Lyon to Larned, and 
 they had no stations between. I put in all the stations for the com- 
 pany and supplied them with grain and hay, so of course I have 
 been on the river a good deal of the time both winter and summer. 
 That was from 1866 to 1867. After that I lived right on the banks 
 of the river at what they called Cimarron crossing, about three miles 
 west of the town of Cimarron, Kansas, — where the town of Cimarron 
 
 is now. That is about twenty miles from here, up the river, 
 
 1208 or thirty miles from Garden City. In 1859, along in the fall, 
 the river got pretty low, in September. In those early years 
 
 the river went dry once every three or four years along in Septem- 
 ber. I don’t think it went entirely dry in 1859, but I don’t know. 
 For a short time in the fall it was pretty nearly dry, so that it only 
 ran from one puddle or hole to another in small channels, and once 
 in every three or four years it went almost entirely dry 7 , in the early 
 years. In those early years we didn’t have any difficulty as a rule 
 in high water in crossing the river whenever we wished, on horse- 
 back or otherwise, but the river kept up a good deal longer than 
 what it does now, from what we call the mountain rise or June 
 floods. When I first went up the river in 1859 I thought 
 
 1209 then it would never be inhabited. The country has improved 
 very much more than I or the most sanguine expected at that 
 
 time that it could improve. There was no habitation along the banks 
 of the river or in sight on that trip except a little trading post at the 
 mouth of Walnut creek at Great Bend until you got to what we called 
 Fountain City. That was on the east side of the Fountain. There 
 
TME STATE 6E COLOR ABO ET At. 
 
 44 ? 
 
 Was llo Pueblo then. That was just at the mouth of the Fontaine 
 Qui Bouille, on the east side of the creek, where Pueblo is now 
 located. In that year 1859 when I passed up the river it was not 
 dry or nearly dry in places, when I came out in the spring. When 
 we went down again in the fall it was dry in places; that is, the 
 river was low. I went down about in September. I know 
 
 1210 there wasn’t a great deal of water in the river. But when we 
 went up the river was full all the way up. There was a 
 
 great difference between the time we went up and the time we came 
 down. My recollection is now that when we came down there was 
 not a great deal of water in the river from Pueblo down as far as we 
 followed it, but when we went up in the spring there was a good 
 deal of water all the way up as far as Pueblo. I didn’t see any cul- 
 tivation at all at the mouth of the Fountain that year, although I 
 was told that the Mexicans had a little garden there. I suppose 
 they irrigated it. In 1862 and 1863 in Colorado I first saw crops 
 irrigated. That was on my second trip. I saw crops grown b} T irri- 
 gation at that time this side of, Canyon City, from Canyon City down 
 to Pueblo, on the Beaver creek, and along through there. I 
 
 1211 think it is about fifty miles between Canyon City and Pueblo. 
 There was not a great deal of cultivation there until you got 
 
 up about Beaver creek. It was about half way, I guess. From 
 Beaver creek up it was all cultivated. They had nice farms all 
 along. The river bottoms were all cultivated, that is, where I 
 freighted vegetables to Fort Lyon for a year or two. They always 
 raised crops by irrigation at that time. I saw irrigation ditches at 
 that time. They were individual ones — small ones. Each man had 
 his own ditch two or three or four feet wide, something like that. I 
 saw them when they were running water, and there were quite a 
 good many of them, and a good many little farms in there in those 
 early days. The crops were very good, the finest vegetables I 
 
 1212 ever saw raised. During those early years I used to fill the 
 Government contracts for hay at Fort Dodge, and the grass 
 
 from Great Bend up to Pueblo — the hay in the bottoms — was more 
 than twice as heavy as it is now. There was none on the uplands. 
 There was no stock in the country at that time to eat off the grasses 
 in the bottoms ; nothing but the buffaloes. There was buffaloes 
 here. 
 
 In those trips I made up the river in Colorado I have been to 
 Leadville, but never went to the extreme head waters of the 
 Arkansas, that is, to the extreme fountain head. The first time 
 I went up as high as Leadville, was, I think, about 1863. I 
 wasn’t mining ; I hauled vegetables up there. It was called 
 California gulch at that time. In the parks — in South park, 
 above the canon, up towards Lead ville, where the clumps of timber 
 were there were very heavy clumps of timber, and around Califor- 
 nia gulch on the hills about there there was a good deal of 
 
 1213 pretty heavy timber. The gulches generally up through that 
 country in the mountains, below timber line, were pretty 
 
448 
 
 THIS STATE OE KANSAS VS. 
 
 heavily timbered in those days. The first time I ever saw South 
 park it was one of the most beautiful spots I ever saw. It was just 
 a waving meadow, surrounded by clumps of trees, and a stream of 
 water running right through it, right on top of the ground, with a 
 pebble bottom, just as fine as it could be. I have not been up there 
 for a great many years. One of the things that attracted my atten- 
 tion was this growth of timber, after coining up through a treeless 
 valley, and this beautiful meadow. It looked like a garden or an 
 immense meadow. The timber was particularly striking. I was 
 through there later when there was two or three feet of snow, and I 
 was hustling out of there and we had to just go wallowing through 
 there to get out. I have not been through there since the timber 
 was cut off. I don’t think there was any farming in 1862, 
 3214 much, on the Arkansas, but they were farming on the Foun- 
 tain, which is a tributary of the Arkansas river. Beaver 
 creek is another tributary. I never noticed the farming on the Ar- 
 kansas about the mouth of the Huerfano very much, until the spring 
 of 1863, when there was some very large farms opened up and some 
 irrigating ditches established. As early as 1863 there was one, 
 which we called Haines’ ditch. All the farming I saw in Colorado 
 was carried on by means of irrigation. They commenced farming 
 down about Bent’s old fort a good many years later, and I don’t 
 remember of any farming there except what I have seen since the 
 railroad has been built, passing through. I am speaking of both 
 Bent’s forts now — the upper and the lower. I don’t remember see- 
 ing any considerable farming there until after the Santa Fe 
 
 1215 railroad was built, several years. The Santa Fe was built 
 about 1874. After 1874 I passed along the river into Colo- 
 rado occasionally on the railroad. I have not been up the river ex- 
 cept in the night time. As a general thing I leave here about ten 
 o’clock at night and get to Pueblo for breakfast, and then we leave 
 Pueblo in the night and get here about sunrise in the morning, so 
 I don’t know anything about the farming up there only what I have 
 seen at night out of the car window, by moonlight. I have heard 
 that they are farming up there more and more extensively every 
 year, but to my personal knowledge when I used to go up there 
 and knew the country there were no crops in at all at Bent’s fort. 
 
 The June rises in the river continued longer in those* early days 
 than they do now. We have them more or less every year. 
 
 1216 Most every year we have more than one full river, and nearly 
 every year during the last ten years at some time between 
 
 July and August there is considerable water running down the 
 river by Dodge City. Sometimes almost every year the river goes 
 dry at this point, but during most of the season there is some water 
 runring in it. Either in 1863 or 1864, in the fall, I remember par- 
 ticularly that the river was dry. It was a very dry year. In 1874, 
 if that was the grasshopper year, it was a very dry year. The river 
 may have been dry about the year 1874 during a part of the season 
 for one hundred or one hundred and fifty miles, including the 
 
THE STATE OF COLORADO ET AL. 
 
 449 
 
 river by Dodge City. I remember that we had a dry year then 
 about that time, I think, but whether it was 1874 or 1875 or 
 
 1217 1873 — it was along about that time. There were some other 
 years about that time when the river was dry for long 
 
 stretches, but not many. That happened in those early days. 
 
 I was a witness before a committee of the United States Senate 
 when it visited Dodge City some time in 1889, and perhaps it is true 
 that I said or it was stated at that time that there had been three 
 crops of settlers in here at that time. As I recollect, these people 
 were coming in herein great numbers from time to time endeavor- 
 ing to raise crops, meeting with failure and going out, and others 
 coming in to take their places. If I could recollect the birth of 
 Garden City I could about tell you when the first crop of set- 
 
 1218 tiers came in. I think that was about at its height in 1884. 
 When it started I do not know. It was in the early ’80’s. At 
 
 the time they came in this land was settled upon and homesteaded 
 and preempted quite largely. It was nearly all taken up. And 
 these people afterwards moved away. And in the fall of 1889, when 
 this committee of the Senate visited this place it looked pretty 
 hopeless here so far as the cultivation of crops was concerned. I 
 have forgotten what the object of the Senate committee was, but I re- 
 member the Senate committee and remember testif} r ing before it, but 
 what the questions were that were asked me I have forgotten. I 
 think Senator Stewart of Nevada was one of the members, and 
 Senator Plumb was with them. I don’t recollect of them asking 
 me how the sheet of water could be gotten out upon the tillable 
 lands for the purposes of irrigation, but I think, since my memory 
 has been refreshed, that that was part of the subject under 
 
 1219 discussion at that time. I recollect that various schemes 
 were advanced for bringing this water to the surface, 
 
 among others that of gathering this water under the river and 
 gradually bringing it to the surface by means of ditches. I think 
 that was discussed. I think the first irrigation ditch in this country 
 was taken out about twenty years ago. (Objection.) That was about 
 1884. That was the Eureka ditch, if I am not mistaken. (Objection.) 
 It is also called the Soule ditch. I think that was taken out in 1887. 
 They were several years building it. I think they got 
 
 1220 the water in it in 1887. I would have to guess at the width 
 of the ditch, but I suppose it would be twenty-five or thirty 
 
 feet at the bottom. It was a very large ditch and ran along the 
 foothills. (Objection.) The slope of the banks would depend on 
 the digging. I suppose it sloped at an angle of forty-five degrees. 
 I couldn’t tell you exactly how wide it was at the water line in high 
 water in the ditch. I will describe it as best I can. I think it was 
 about twenty-five or thirty feet at the bottom of the ditch. It was 
 three to five feet deep, and had a fall of three or four feet to the 
 mile, and rau a mile north of Dodge City. The main ditch was 
 
 29—7 
 
450 
 
 THE STATE OF KANSAS VS. 
 
 about seventy-five or a hundred miles long. It had a good 
 
 1221 many laterals, but these I couldn’t describe. It was to water 
 land on both sides of the ditch, but on the north side of the 
 
 river. It was between seventy-five and a hundred miles long. It 
 was supposed to be right on a ridge, so as to irrigate both ways. 
 The underflow ditch was taken out about 1888. The Eureka 
 
 1222 ditch ran alternately for two or three years. At first, you 
 know, when they would put water in it, they would find a 
 
 break in it. It would run down twenty or thirty miles and they 
 would have a big break or something of that kind, and then they 
 would shut it off and maybe they would run it again that season 
 and maybe they would not. Maybe the break would be so great 
 that they could not run it again that season. But for two or three 
 years it ran full of water. The ditch on the south side was lower 
 than the Eureka ditch. It was supposed to be an underflow ditch 
 entirely. They met with some success in getting the water out and 
 irrigating a considerable amount of land, but they didn’t think it 
 was sufficient, and in my opinion they spoiled the ditch by cutting 
 into the Arkansas river and trying to make it work both ways by 
 taking not only the underflow but the water out of the Arkansas, 
 and it covered it up. I think they were a little too greedy. This 
 ditch was completed for about twenty-five miles and partially 
 
 1223 completed for about forty-five miles I think. It was about 
 one-half as big as the Eureka ditch. Down here I should 
 
 judge it was twelve feet wide at the bottom, and perhaps carried 
 water to the depth of two feet. That is thirty miles below its head. 
 It ran within a mile and a half of Dodge Oit}', to the south. I was 
 interested in one of these ditches to this extent; I bought a whole 
 lot of fifteen dollar or twenty dollar land after they showed me it 
 was going to be a success, but I didn’t blame them, and the land 
 was sold afterwards for taxes. Pretty much all of the bottom land 
 here is now under cultivation, and most of the second bottom. I 
 should say the second bottom averaged a mile and a half in width. 
 They also raise crops on the uplands, beyond the second 
 
 1224 bottom. They raise better crops here now on an average 
 than ever before, on the uplands. Well, I would hardly 
 
 say that the lands generally here are better for cropping purposes 
 than ever before. They are cultivating more land, and with the 
 exception of this year they have raised better wheat than they have 
 heretofore. But this year the rust struck it. The values of land 
 here are generally higher than ever before. They have been 
 steadily increasing year after year for twenty years, with the excep- 
 tion of the fluctuation by reason of booms and their subsidence. 
 They are taking water from the lands adjacent to the river here by 
 means of wind mills, and from the uplands too. They have no 
 other machinery for that purpose but the wind mills. It is a wind 
 mill country. There are two large plants here at Dodge City 
 
 1225 pumping water — the Santa Fe railroad and the Dodge City 
 water works. The city plant is located in the bottom west of 
 
THE STATE OF COLORADO ET AL. 
 
 451 
 
 town. The wind mills are in general use in the country. It would 
 be a hard matter to say how many. Nearly every farmer has a 
 wind mill pumping water out of the ground. I would not 
 
 1226 say that there are as many as a thousand of them. There are 
 possibly five hundred. The water is used for domestic and 
 
 stock purposes, and in a very few cases it is used for irrigation for 
 little garden patches. It was in 1889, I believe, that the Senatorial 
 committee took evidence at this point. 
 
 (At this point counsel reads from the proceedings of the 
 
 1227 Special Committee on the Irrigation and Reclamation of Arid 
 Lands, of the United States Senate, as reported by said com- 
 mittee, volume 3, pages 154 to 156, inclusive, as follows:) 
 
 “ The Chairman : Have you observed the efforts made to culti- 
 vate the soil in western Kansas without irrigation ? 
 
 Mr. Wright: Yes, sir. 
 
 The Chairman : Have they been successful ? 
 
 Mr. Wright: They have not. 
 
 The Chairman : Describe the efforts you have made, and whether 
 people have remained or not as a consequence of those efforts. 
 
 Mr. Wright: As these gentlemen have explained to you, two or 
 three crops of emigrants have come to this country in the last twelve 
 or fourteen years. 
 
 The Chairman : What do you mean by ‘ two or three crops of 
 emigrants’? 
 
 Mr. Wright: What I mean by that is this: Different batches of 
 emigrants have come into the country and about half of them after 
 two or three years’ trial have left. Some stay a little longer than 
 others. Some have remained four or five years and have then gone 
 away and a new batch has come in. That has repeated itself I 
 think three or four times since I have been here. 
 
 The Chairman: Is it possible to farm in this part of the country, 
 the western part of Kansas, west of Great Bend, without irrigation ? 
 
 Mr. Wright: It is only partially possible. They raise a very 
 sorry crop here without irrigation. 
 
 The Chairman: Can a family make a living on the ground by 
 farming ? 
 
 Mr. Wright: Not one out of five I should say. The rain comes 
 in streaks here. Some cultivate the soil a little better than others, 
 perhaps, and a few have made money, but they are the 
 
 1228 exception.” 
 
 That correctly described the conditions that existed up to that 
 time. We had in those days good farmers and poor farmers. Some 
 of the good farmers made a success of it, made money, and the poor 
 farmers failed, and fail now. I think there is no doubt that there 
 has been a general improvement in this country in the raising of 
 crops since this evidence was given in 1889. 
 
 I don’t know whether this ground water was commonly known 
 
452 
 
 The static of Kansas vs. 
 
 as sliest water in this locality up to 1889 or not. Some thought it 
 was sheet water and some thought it was an underflow. I guess I 
 first heard the term underflow used when they were starting 
 
 1229 to take out this South Side ditch. Whether it is called sheet 
 water or ground water or underflow, I mean the water that 
 
 fills the sand and the gravel of the river bed and the uplands below 
 a certain depth on either side of the river. It is water taken up by 
 the sands and moved slowly off’. It is slowly percolating through 
 the sand and gravel beneath the surface. It has a flow to it, of 
 course. It is sluggish, no doubt, and does not have the velocity 
 that the river proper has. I think it moves a good deal faster than 
 10J feet per twenty-four hours. I base my judgment on see- 
 
 1230 ing this water moving in open cuts or ditches after it has 
 been freed from the sands and gravel of the country. I have 
 
 never made any investigations to determine whether the level of 
 the water is higher or lower than the water flowing in the river. 
 On Cavalry creek, from fifty to a hundred miles south of here, and 
 several little creeks whose names I have forgotten, I have seen 
 streams breaking right out there into quite nice large size brooks, 
 and I believe that was the underflow from the Arkansas river ; that 
 it found its way through some soft or gravelly channel. There are 
 three or four streams down in that country. There was really no 
 rain there then; the country was very arid and warm and dry and 
 hot and parched up. I have not been over there for thirty 
 
 1231 years. These were about twenty-five to thirty miles from the 
 nearest point on the Arkansas river. The intervening ground 
 
 is filled with sand hills, nothing out of the ordinary. This expe- 
 rience led me to the belief that the ground water extended from 
 twenty to thirty miles away from the river. These streams were 
 many feet higher than the Arkansas river, taking it right at the 
 nearest point to the river, and that is what led me to the belief that 
 these streams were an underflow from the Arkansas river. We will 
 sa} r that the Arkansas river has a fall along here of seven feet to 
 the mile, and it led along until it was in a channel, until it found 
 its way out down there. In my judgment it came from the 
 
 1232 Arkansas river, possibly a long distance above. There was 
 no other source that I could see except from the river. 
 
 I testified before a Senate committee in 1889 that there was a well 
 here three or four hundred feet from the river, and I venture to say 
 that the water in that well is three or four feet higher than the 
 water in the river. At different places as you go up the hillside that 
 increases. I think that is true now. I think possibly that within 
 two or three or four hundred feet of the river you can find the water 
 level four feet or more higher than the water in the river, and I 
 think that it is from the underflow. In my judgment this under- 
 flow comes from the entire drainage of the Arkansas river. For in- 
 stance you might dig a well a hundred yards from the river 
 
 1233 right directly north or south of it. It would not indicate that 
 that well would have to be just the level with the river either 
 
THE STATIC OF COLORADO ET A L. 
 
 453 
 
 way, but it is liable to be, and I think the water came from above, 
 and would be higher than the Arkansas river. As the water drains 
 from these high lands on either side of the river, it strikes this 
 well. 
 
 1236 There are more or less sand hills along the south side of 
 the river from Great Bend until you get into Colorado. 
 
 There is the best natural road up this Arkansas river to the moun- 
 tains that a man ever saw, on the north side of the river. On the 
 south side you couldn’t build one on account of these sand hills. 
 That shows that the north wind is the prevailing wind, and hereto- 
 fore in the early days the river was a great deal lower in the 
 winter than in the summer, therefore the action of the wind had 
 the greatest sweep on the sand bars and swept the sand south. In 
 my opinion the sand hills are iformed by the sand from the river, 
 blown out of the bottom of the river. 
 
 I don’t know of any places here within ten or twelve miles of the 
 river where the water level is twenty-five feet higher than the 
 
 1237 water in the river. (Objection.) Now, east of here and a 
 little north, five miles and nine miles, there are pools of water 
 
 up there, quite deep pools, that from the looks of it must be twenty- 
 five or thirty or forty feet higher than the river. I don’t know’ 
 what forms these living pools up there unless it is this underflow. 
 I don’t know anything else that forms them. I should say they 
 were twenty to twenty five feet higher than the river. 
 
 1238 In the early days there was very little timber between 
 Great Bend and Dodge City, and up to the Colorado line and 
 
 above. There were a few scattering very large trees. Now from 
 Great Bend to Pueblo there is a great deal more timber on the river 
 than there was then. The reason, I think, of this is that the fires 
 are kept out now and the buffalo used to destroy the timber. They 
 were here in immense numbers, a great deal more than we ever had 
 of domestic cattle, by the hundreds of thousands, in fact millions. 
 The buffalo and the fires destroyed the timber. The timber here 
 has only grown up in recent years. On our townsite here ten years 
 ago you couldn’t hardly see any trees, and now you see a great many, 
 but they are young and of recent growth — cottonwoods, of 
 
 1239 course. I can hardly make any average of the timber here 
 now as compared wfith that of former years. I can only say 
 
 there is a greater quantity here than there was then. I can say fonr 
 times as much with safety. When I speak of the timber I include 
 the underbrush in the river bottoms, near the sides of the river. All 
 that underbrush will become trees in a few years, because the cotton- 
 wood has a very rapid growth. 
 
 Redirect examination. 
 
 By Mr. Ashbaugh : 
 
 1240 Where counsel refers to this water beneath the first and 
 second bottoms as ground water I call it an underflow, and 
 
454 
 
 THE STATE OF KANSAS VS. 
 
 that is about the term that has been generally applied to it. The 
 lands along the first bottoms were located by regular settlers soon 
 after the railroad got here in 1»72. I mean the Atchison, Topeka 
 and Santa Fe railroad. The railroad runs up pretty nearly to the 
 river between Newton and Dodge, with some few exceptions, and 
 between Newton and the State line the Santa Fe runs close 
 1241 along the north bank of the Arkansas river. They followed 
 the river because it was level and the engineering was better. 
 The railroad practically follows the old Santa Fe trail. 
 
 1243 The soldiers’ home is located five miles east of here, di- 
 rectly on the banks of the Arkansas river. There are two 
 
 hundred and sixty acres of land contained in the soldiers’ home, 
 and the northwest quarter of section 3, 27-24, and some adjoining 
 lots. It has been in the possession of the State of Kansas since 1889. 
 Formerly it was occupied as a United States military post, as the 
 United Slates military post of Fort Dodge. Those premises are well 
 improved. There is a large garden there and the balance of the 
 ground is in alfalfa and natural grass. About fifty acres of it is 
 farmed and cropped. Nearly all of these premises are in the first 
 and second bottoms. 
 
 1244 When the South Side ditch was first dug it seemed to have 
 a very abundant supply of water. Its source of supply was 
 
 the underflow. It was some two or three years after they dug it 
 that they connected it with the Arkansas river. During the first 
 two or three years there was more in it than at any times afterwards, 
 with the exception of the overflow that destroyed the ditch. The 
 underflow didn’t seem sufficient to supply their wants of water, and 
 the proprietors conceived the idea that they would dig a small out- 
 let to the river to let in more water. It was in a bend of the river 
 where the head-gate was or where the supply of water rushed in. 
 There came a tremendous freshet, and the bank being broken, the 
 water found its way and just swept that whole ditch out, and then 
 afterwards it destroyed the ditch, but they received a supply of water 
 for several years afterwards, but it finally got less and less until it 
 dwindled away entirely. The cause of its dwindling away 
 
 1245 entirely was for want of water. The outlet from this ditch 
 emptied into the Arkansas river. For the first two or three 
 
 years 1 should think there was three feet of water, and perhaps it 
 was twelve to fourteen feet wide at the bottom, with a pretty strong 
 current. It ran down the ditch and along parallel with the Arkan- 
 sas river as the ditch was constructed. I have not been over there 
 for a long time, but I think it is pretty well dried up. 
 
 The Eureka ditch is also known as the Soule ditch, and 
 
 1246 now is entirely dry. It has been dry for ten or twelve years. 
 The cause of this is lack of water from the river. 
 
 I spoke about certain places of the underflow being higher than 
 the river. I should say the nearest point to the river. For in- 
 stance, you dig a well say two hundred yards north of the river, 
 where the river is running almost directly east and west, as it does 
 
THE STATIC OF COLORADO ET AL. 
 
 455 
 
 here, and you will almost invariably find that the water in that 
 well will be higher than the river at the nearest point right directly 
 south back to the river, but it wouldn’t be if you went up the 
 
 1247 river high enough. (Objection.) I couldn’t state how far up 
 the river you would have to go until it got on an absolute 
 
 level. The fall of the river is seven feet to the mile here. During 
 the first twenty-five years, from my experience I should say that 
 the bay crop was more than twice as great as it is now. I have cut 
 hay, and not five or ten or twenty acres of it, but hundreds of acres 
 of it, right across the bridge here along the Arkansas river, four, 
 five and six feet high, good bottom hay, and it has not grown 
 
 1248 there that tall for a good many years — at least for ten years. 
 
 I have seen fish in the river, but not for a good many 
 years, except lately in holes along when the river was dry. We 
 used to catch them with our trout lines, very large, nice channel 
 cats. (Objection.) I have not known of any fish being caught with 
 lines for several years, I suppose because they haven’t been 
 
 1249 there. There has been water enough at flood times for fish. 
 (Objection.) During the first years the stream was a run- 
 ning stream to such an extent that fish could live in it and be sup- 
 plied with water. (Objection.) The stream used to run continu- 
 ously and give them a chance to run off. 
 
 During those early years there was ice cut in the river most in- 
 variably, in fact all of our ice was cut that we used. That is not 
 true now. 
 
 I knew of them floating railroad ties in the river about 1872 or 
 1873, or 1874 perhaps. When they were constructing their lines 
 west of here they floated most of their ties down from the mountains, 
 for the Santa Fe road. 
 
 The population of Dodge City is about twenty-five hundred or 
 three thousand. 
 
 Eecross-examin^tion. 
 
 By Mr. Hayt : 
 
 1250 The land down at the soldiers’ home is practically all 
 under cultivation. I have visited it within the last two or 
 
 three years. They are raising fine crops down there — pretty good 
 gardens. 1 call the alfalfa there pretty good. 1 don’t know whether 
 the yield is an extraordinarily good one or not this year. It looks 
 fine. I go by ther eevery two or three days. There is a good, 
 
 1251 strong stand of alfalfa there. I think it has been cut twice 
 this season, and a third crop is now grown. 1 can’t state the 
 
 yield per acre. I have fifty acres in crop down there at my place. 
 It is badly burned this year. It is on the second bottom, between 
 the wagon road and the first bottom. There has been plenty of 
 water in the river this summer, more than ordinarily. I think 
 
 1252 it has been running all summer. This crop was burned from 
 the lack of rain at the proper time. 
 
456 
 
 THE STATE OF KANSAS VS. 
 
 This ditch on the south side I suppose is a quarter of a mile from 
 the river at the farthest head. The lands are quite low between the 
 river and the ditch, and the ditch was dug to quite a depth below 
 the surface of the water in the river — to quite a depth below 
 the bottom of the river. I expect it was nearly five or six 
 
 1253 feet below. The soil there near the head of this ditch is sim- 
 ply the made bottom land, the same as it is along here, — 
 
 made by the river. The ditch was located at that point to get the 
 underflow. It runs close to the river for ten or fifteen miles. The 
 water ran down this ditch the first year or two, I expect for twenty 
 miles — possibly farther. There was enough for the purposes 
 
 1254 of irrigation, and it was so used at the time. The ditch was 
 built to drain that country. It ran until the ditch was de- 
 stroyed by the flood, and then it ran for two years afterwards. But 
 
 it was less and less. That was from the seepage. The river 
 
 1255 washed the ditch out and it caved in. It washed in more 
 than it washed out holes. I don’t think the river channel has 
 
 changed more up there than in other places along the river. This 
 is a river of shifting sands and changing channels, but it has not 
 changed materially up there. 
 
 The Soule ditch is filled upland destroyed, and wagon roads at 
 various places have been been built across it by filling it in. I ex- 
 pect there is w r ater enough in the river now and that there has been 
 enough for a month or two to run that ditch if the ditch had 
 
 1256 been open for it, — enough to practically fill the ditch. 
 
 As to the hay crop, there was some decrease in it from the 
 time I first saw it in the ’60’s, down to 1880. I have noticed a great 
 falling off, more in the last ten years than previously, because I have 
 had a good deal of hay ground myself, and it has got so absolutely 
 worthless now I have to plough it up and put it in something else. 
 It doesn’t pay to cut half a tou or three-quarters of a ton wdiere we 
 used to get two or three tons. I noticed a slight decrease prior to 
 1880. Possibly that may be a feature of all hay lands that have 
 been cropped for a number of years. 
 
 1257 I have spoken of the floating of ties down the river in 1872 
 and 1873. After the railroad was built there was no further 
 
 occasion for floating ties down, and since that ties have been used in 
 limited quantities only, and transported by the railroad. At flood 
 times there is always water enough still to float ties down, if there 
 were tires to be floated. 
 
 Cross-examination. 
 
 By Mr. Campbell : 
 
 The soldiers’ home is conducted under State auspices. 
 
 1258 I don’t knowof any institution on the line of the Arkansas 
 river in Kansas conducted by the Government of the United 
 
 States. 
 
 I did not mean to say that one of the ditches I spoke of was a 
 
THE STATE OF COLORADO KT AL 
 
 457 
 
 drainage ditch. It was constructed for irrigation purposes. But the 
 water to supply the ditch was drained from this bottom, to take 
 what substance there was out of it from the underflow. I 
 
 1259 think the Eureka ditch was begun prior to 1889. It was two 
 or three years in building. The water was turned in the first 
 
 year before it was completed, and then for one or two years after- 
 wards. The Eureka ditch heads in Gray county, seven miles above 
 the county seat, at a point called Ingalls. The ditch on the south 
 side was begun in 1887 or 1888, to the best of my recollection. It 
 was finished about a year after that. The ditch is about twenty five 
 miles long about half the size of the Eureka ditch. 
 
 Redirect examination. 
 
 By Mr. Ashbaugh : 
 
 1260 In answer to a question by counsel concerning the de- 
 creased flow of the river during the ’70’s, I don’t think there 
 
 was any permanent decrease during the ’70’s or early ’80’s. 
 
 1262 C. M. Beeson, Dodge City, Kansas. 
 
 Direct examination. 
 
 By Mr. Ashbaugh : 
 
 I have lived in Dodge City, Ford county, Kansas, since Novem- 
 ber, 1875. My business is farming and cattle raising. My cattle 
 business has been conducted in and around Dodge City^ within a 
 radius of a hundred miles. I have been acquainted with the Arkan- 
 sas river and Arkansas valley through Ford county and other ad- 
 joining counties, and somewhat acquainted with it up to the moun- 
 tains. I should say the average width of the Arkansas valley 
 through Ford county was three or four miles, from bluffs to 
 
 1263 bluffs. It gets narrower as you go up the river. There are 
 places, at Garden City, for instance, that it extends still wider, 
 
 and there are places in Gray county that are very much wider. It 
 has been wider in both Gray and Finney counties than in Ford 
 county. Naturally the crops grow upon the bottom lands without 
 irrigation. We strike the sage brush country close to the State line. 
 In some places near the State line the sage brush comes down 
 
 1264 almost to the river. It varies. Through Edwards county 
 the valley would average six or eight miles in width. Dur- 
 ing the first fifteen years that I knew the river I should judge that 
 the average flow of the river, excluding floods and freshets, would 
 be about three or four feet across the bottom, on the average. Dur- 
 ing the last ten or twelve years, excluding the year 1904, I think it 
 has fallen off one-half. There are seasons now when the river is 
 practically dry. Most of the year, practically speaking, the river is 
 dry. There might be pools or holes standing along, but it wouldn’t 
 
458 
 
 THE STATE OF KANSAS VS. 
 
 be running enough to call it a running river, more or less 
 
 1265 half or two-thirds of the time in some years. The flow of the 
 river has narrowed during the last fifteen years. I don’t think 
 
 it is more than a quarter as wide as it was twenty-five years ago. I 
 don’t think the river has narrowed so much, as to the banks. I am 
 acquainted with what is called the underflow in this country. It is 
 the water travelling under the ground — under the sand. It would 
 seem like a sheet of water under the sand that you can dig down to 
 and strike very easily. It extends back quite a distance, in a small 
 way for a mile or two miles, very perceptibly. I think it flows back 
 to the foot hills and bluffs very perceptibly. I think it flows more to 
 the south than it does to the north. It goes in a southeasterly direc- 
 tion. It seems to bear more east, of course, but it inclines to flow 
 south, and in comparison with the general direction of the 
 
 1266 river is parallel with the river. I have noticed it in 
 digging for water, digging wells, and in one case par- 
 ticularly in 1884 I was interested in the building of a brick 
 block here in Dodge City and at that time the underflow was so 
 strong and effective that we placed water closets in the basement of 
 our buildings. We dug down to the quicksand and used it for 
 years successfully in washing off the offal. It carried it off ; and of 
 late years we couldn’t do it at all. The reason is the water is sunk 
 away. There is no water there. It would stand up two or three 
 feet in that cesspool when we first built it. It is down here in the 
 building. It is there to-day. I have not examined it for the last 
 few years, since we got the water-works in here. But before that 
 time it worked successfully. It has been ten or twelve years since 
 the water-works were put in. I notice in my wells on the south 
 side of the river that the water is two or three feet lower than it 
 
 was eighteen years ago — at least three feet lower. The 
 
 1267 underflow has been receding. I think it is very perceptible 
 in the rise and fall of the river that the underflow rises and 
 
 falls with the rise and fall of the river. (Objection.) I have got 
 personal observation as to that. I have a water hole back just a 
 mile and a half south of here in a pasture. When the river is up I 
 can always have plenty of water for my stock. As soon as the river 
 goes down that water recedes and I have got no water. I think I 
 can state by looking at the water hole without seeing the river the 
 condition of the river, to a certain extent. (Objection.) Not wholly, 
 but to an extent I can tell the condition of the river without see- 
 ing it. 
 
 The crops raised in the bottom lands are limited. Some small 
 patches of wheat, and I have raised good corn on the bottoms here 
 in the early days, some fifteen years ago, but of late years it is in 
 alfalfa most exclusively. Other crops raised are cane and 
 
 1268 kaffir corn. There is quite a good deal of natural hay. Dur- 
 ing the last fifteen years as compared with the first fifteen 
 
 years that I knew the valley the hay crop has fallen off very per- 
 ceptibly. It has fallen off one-third to one-half. The alfalfa crops 
 
THE STATIC OF COLORADO ET AL. 
 
 459 
 
 close to the river are much better than they used to be, but back from 
 the river they are not so good. The amount of land right next to 
 the river that might be better is a limited amount. It depends upon 
 the lay of the land. From eighty to a hundred rods on the first 
 bottom they are better and will grow alfalfa now better than they 
 would a few years ago. My opinion is that this is on account of the 
 water receding and falling away below and giving the roots 
 more distance before striking living water. During the early years 
 the water level on these bottom lands near the river would 
 
 1269 be within a foot or two feet of the surface. The best alfalfa 
 land now in this valley I consider right up to the river banks. 
 
 Back from the river it is not as good. It is second valley. I don’t 
 know what to attribute it to that it is not so good back from the 
 river more than to the fall of the underflow. That is my belief of 
 it. The only known cause I can give is the fall of the water. This 
 is based upon mv experience and observation in this valley. (Ob- 
 jection.) The amount of land that is comparatively better for 
 alfalfa now than formerly I should say was about one-fifth or 
 
 1270 one-fourth. (Objection.) The yield per acre has fallen off 
 about one-fourth, but there is a greater acreage now. 
 
 Q. Well, I am speaking not of the number of acres but as to the 
 same acreage under similar conditions, or yield per acre, for in- 
 stance. 
 
 A. It has fallen off about in proportion — about one-fourth. 
 
 Q. In proportion to what? 
 
 A. In proportion to the number of acres that it has benefited. It 
 has benefited about one fourth and fell off about one-fourth in the 
 matter of crop, I should judge. 
 
 Then about one-fifth of the iand right near the river has been bene- 
 fited and about four-fifths of it has been injured, and the average 
 crop, estimated on yield per acre, has fallen off I should think one- 
 fourth. (Objection.) I have had alfalfa for about twelve or fifteen 
 years. I have now about twelve hundred acres in alfalfa. This 
 has been an exceptionally good year for alfalfa. 
 
 1271 I should judge about ten years ago we commenced remark- 
 ing about the scarcity of water in the river. It is my opinion 
 
 that the falling off of the water in the river is caused by the ditches 
 above. (Objection.) 
 
 As to what is known in this country as the June rise, that is what 
 we consider the melting of the snows in the mountains, that we are 
 apt to get a rise without any rain during the summer some time if 
 they have any amount of snow in the mountains. During the first 
 fifteen or twenty years I was here the June rise would last up to 
 along about the first of August, on an average. It would 
 
 1272 generally come along about the first of June. It would 
 last probably a couple of months. During the last ten or 
 
 twelve years there has been a scarcity of water. The floods 
 recede much faster than they used to. In the last six or eight or 
 ten years we have noticed that the rise in the river wouldn’t last as 
 
460 
 
 THE STATE OF KANSAS Vs. 
 
 long as it used to in the early days. This has had its effect in mak- 
 ing everything short, in the percentage I have given, in the short- 
 age of crops, grasses, etc. 
 
 There was a great amount of hay put up in the early days here. 
 The Government had lots of hav put up under Government con- 
 tracts through the valley here for miles in the early days. This 
 hay crop has fallen off to the extent of one-half, I think. I 
 
 1273 couldn’t say that this falling off has been noticed in other 
 crops except hay and alfalfa. We raise also cane and kaffir 
 
 corn. 
 
 I was acquainted with the ditch dug on the south side of the 
 river. The head of the ditch was nine miles above the city. The 
 ditch was two and a half miles from the river, I think, at the 
 farthest point, and at the nearest point about eighty rods. It was 
 about eighteen or twenty miles long to where they cut it back to 
 flow into the river. It was dug for irrigation purposes. I think it 
 was sixteen feet wide on the top and probably eight or ten 
 
 1274 feet at the bottom and five or six feet deep. It got its supply 
 of water out of the underflow. It didn’t go down the ditch 
 
 to amount to anything at all. After the dam broke and let the 
 water into the ditch it never came down the ditch after that. I 
 think that ditch was dug in 1889 or 1890. They ran a dam out in 
 the river to catch the surface water and throw it into theditch, then 
 they dug the ditch to this cut from where they started the ditch 
 proper. They dug it probably eighty or a hundred rods to the 
 river, and in constructing the dam they didn’t get it strong enough 
 and the first rise that came broke that dam and let the water in and 
 filled that ditch up with sand. It washed the sand from the river 
 into the ditch and filled it up for probably a mile and a half. There 
 was quite a current to the water in the ditch. It travelled right 
 along. In some places where they hadn’t dug it level it would be 
 ripples. It would run the same as the river. That was true 
 
 1275 when its sole source was from the underflow. They dug an 
 immense wide ditch, probably a hundred feet wide at the 
 
 source and eight or ten feet deep, with dredges. The}' had an im- 
 mense reservoir there. When they got down six or eight feet they 
 struck continuous water — gravel, sand and water. This reservoir 
 was probably thirty feet wide and six feet deep. The reservoir is 
 there yet. 
 
 In reference to the current of the underflow, I have noticed in 
 digging a water hole in my pasture about a mile and a half from 
 the river that the water flowed with the river. It would get clear — 
 in driving there with the teams and scrapers the upper side of the 
 water would be clear while the lower side would be mucky and dirty. 
 I mean by the “ upper side ” the west side. It seemed to have a 
 natural flow with the river. (Objection.) 
 
THE STATE OF COLORADO ET AL. 
 
 461 
 
 Recross-examination. 
 
 By Mr. Dawson : 
 
 1276 From 1875 to 1882 my residence was in town. Daring 
 those years I was not engaged in farming or in any other 
 
 pursuit of that character. In 1878 I went into the cattle busi- 
 ness, but I still continued in the saloon business until 1882. I 
 lived in Pueblo, Colorado, from 1871 to 1874. I was also engaged in 
 the saloon business in West Las Animas. In Pueblo I was in the 
 saloon business and also was a musician. I have been as far 
 
 1277 up the river as Canyon City. I have been up the river as far as 
 Buena Vista or Salida, but not as far as Leadville. I know 
 
 from my own knowledge that above Canyon City there is practically 
 no land that is farmed and irrigated, or at least that it is very 
 limited in extent. During the last ten years I have not been up to 
 Pueblo more than twice — once in August and once in May, I think. 
 I think August is one of the months in which the Arkansas river 
 is generally low, and May is one of the months when the waters are 
 beginning to rise. That is generally the case. At Pueblo it 
 
 1278 looked like a lesser river in 1890 than it did in the ’70’s. 
 But they had straighted the channel there through Pueblo 
 
 and after that the river ran more rapidly. It looked more like a 
 creek than in the early days. 
 
 When I speak of the valley here in this county as being 
 
 1279 three or four miles wide I include the second as well as the 
 first bottom. The second bottom I should think is about 
 
 eight or ten feet above the first bottom. 
 
 When I first entered this country you would naturally not go far 
 for water if you were just going to take and dig water for use at 
 once. If you wanted to dig a permanent well in the early days — 
 there were very few wells dug that wav — you could go and strike 
 water any place at two or three feet, or get it without digging. 
 There was always running water in the draws in the bottoms. Dur- 
 ing the last ten years I think you would have to go from four to six 
 feet in the first bottom to strike water. I should think the elevation 
 would be about six or eight feet above the bed of the river. That 
 was at a point where you could strike water at two or three feet in 
 the early days. I have never taken occasion to run any levels to 
 find out whether the water as you go back from the river 
 
 1280 rises to a higher level than at the river. I have heard the 
 testimony of the witness to-day that you could find water 
 
 at a higher level than it showed in the river, but I don’t know 
 whether that is true or not. I never have tested that. In my best 
 judgment water should be twelve to fifteen feet under the surface to 
 make the most suitable condition for growing alfalfa — about twelve 
 feet. I have seen alfalfa grown in Colorado under irrigation. I am 
 speaking from observation and experience here. The alfalfa crop 
 is not as good as it was six or eight years ago. I dont’t think it is. 
 
462 
 
 THE STATE OF KANSAS VS. 
 
 That applies to part of the land. Some of it is better. The 
 
 1281 wheat crops of late years have been on the increase in both 
 acreage and yield up to this year. This year there has 
 
 been quite a falling off in wheat. I think the unfavorable 
 conditions this year are due largely to unfavorable conditions last 
 winter. If we get a good fall and winter we can get along and have 
 a fairly big crop. I think we have had more water this year than 
 usual of late years. Last fall and winter we didn’t have favorabie 
 conditions for the wheat of this season. I think the river has fallen 
 off about two feet in the last ten or twelve years. I think 
 
 1282 it has fallen off three or four feet in the last twenty years. 
 Well, I think it has fallen off at least three feet in the last 
 
 twenty years. I first noticed a perceptibly diminished flow ten or 
 twelve years ago. I think it fell off about a foot and a half 
 
 1283 between 1884 and 1894, and I should judge about the same 
 amount from 1894 to 1904. I have crossed the river on an 
 
 average three or four times a day. I attribute the falling away of 
 the underflow and the falling off of water in the river to the taking 
 out of the surface water in ditches between here and Pueblo. That 
 is my understanding from reading and observation. I think some 
 considerable ditches have been taken out in Colorado since 1894. 
 I have been up the railroad several times and saw the construction. 
 I might say that I have been active in the agitation in Kansas against 
 Colorado taking out water in ditches. This was in my official capacity 
 as a member of the legislature. I was on the ways and means com- 
 mittee and was a strong advocate of prosecuting this case. I was in 
 the legislature one term — the last term. I have also been sheriff of 
 this county. I was elected to the legislature two years ago 
 
 1285 this fall. There was never any contest in the house itself over 
 the proposition to bring this suit. It was settled in the com- 
 mittee. There was no committee contest, but there was some oppo- 
 sition to the bill, but never of a heated kind, not to any extent. The 
 objection was from the eastern part of the State. That is my recol- 
 lection. 
 
 In speaking of the movement of the underflow in my examination 
 in chief I meant t hat the water north of the river seemed to flow 
 towards the river; that if it was south it seemed to flow from it more. 
 It seemed to be a southeasterly direction and was not flowing 
 
 1286 towards the river so much. That was my observation from 
 my water hole that I dug over in the pasture. I wouldn’t 
 
 say that the water on the north side of the river was moving south 
 toward the river and east with the river both, but I think it is deeper 
 to the underflow on the north side of the river than it is on the south 
 side. My observation on the north side was not as thorough as on 
 the south side. I can’t say from my observation whether the water 
 which is under the ground has any perceptible flow in any direction, 
 that is, the water on the north side. It is just from my knowledge 
 of tiie draws that run around that seem to flow toward the river ou 
 
THE STATE OF COLORADO ET AL. 
 
 463 
 
 this side, and on the south side they seem to be drawn to the 
 
 1287 foot-hills more. If you start back five miles from the river 
 on the south side you would find the fall of the river to be 
 
 toward the river, or north, and with the river, or east. It would go 
 both ways. 
 
 The water holes that I sank on the south side were about a mile 
 and a half back from the river. They were in a kind of basin, 
 right on the bottom. That was the easiest place to get water — the 
 lowest place. In its course the basin finally gets around into the 
 river again. I think it heads toward the river. The basin don’t 
 show any signs of ever having been a part of the river chan- 
 
 1288 nel. I dug down there and struck the water. Whether it 
 was an underflow, you could term it as you please, it had a 
 
 current to the east, and that current was going in the direction of 
 the slough in which the hole was dug, and of the water in the 
 slough, when there was surface water running in it. It was most 
 assuredly going down hill. I came pretty close to running levels 
 to find out the elevation. The Santa Fe road made a survey 
 
 1289 in there within two hundred yards of that water hole. I was 
 not working with the road. Their surveyor ran a line than 
 
 came within fifty steps of my house, and it crossed the road about 
 two hundred yards from this water hole, and he just remarked that 
 there was only about half an inch difference on the rails at the 
 Santa Fe depot. We were about half an inch higher at the water 
 hole. I thought we were two or three feet higher. This water hole 
 was in the northwest quarter of section 2, 25-27. I have three other 
 water holes where there is no break or draw or ravine. We went 
 about five or six feet there for water. I noticed a flow or 
 
 1290 current in all the wells. I noticed in the upper side of the 
 hole the water cleared off first. Being perceptibly clear on 
 
 the west side, we thought it was fed from the spring. The current 
 was very slow; enough to clear it, though. We have to go deeper 
 every year and clean those holes out deeper. It would probably 
 take several hours to clear, maybe three or four hours. There would 
 be a hole as big as this room, of water, probably. The nature or 
 character of the country lying back of and above these holes 
 
 1291 is sandy. It is used for pasture and was so used when I first 
 settled there. I fenced it about eighteen or twenty years 
 
 ago. 
 
 Q. Is it not true, Mr. Beeson, that this underflow as a matter of 
 fact comes in from the higher ground or bluffs and flows with the 
 river and toward the river as a general rule? 
 
 A. I think it certainly does come from the higher points. I 
 think it comes from the west, although I don’t know. I am not 
 versed on that. 
 
 1292 The sand hills are higher to the south back of us, and all 
 the rain that falls on these hills comes from the south to the 
 
 north and east toward the river. The springs can’t get into those 
 two east holes I spoke of because I piled the dirt all around them. 
 
464 
 
 THE STATE OF KANSAS YS. 
 
 There are three water holes on the place. The first hole lies in a 
 ravine or draw. Surface water can run in that hole, but these other 
 two holes that surface water can’t run in there except what falls in 
 a funnel-shape hole. 
 
 1 have been growing alfalfa in this vicinity some ten years. I 
 think the underflow had commenced to diminish before I began to 
 plant alfalfa. I will not concede that alfalfa will do better where 
 waters are receding from the ground. Alfalfa is one of the best 
 crops that is raised here, and there has been more and more land in 
 this county put into alfalfa each year for the last five or six years. 
 Lands have been given up for other crops and co-verted into alfalfa 
 fields for several years past, and on the other hand they have turned 
 the other way too, but the alfalfa crop has been increasing from year 
 to year, but I will not say at the expense of the other crops. Each 
 year there is more and more ground taken out of other crops on this 
 first bottom through this county and put into alfalfa, 
 
 1293 but there has been more land put into alfalfa from the 
 sod than there has been from old land, a good deal. I 
 
 have seen the alfalfa that is grown down here on the land be- 
 belonging to the soldiers’ home, and they are raising good alfalfa 
 there now I think. That alfalfa is on the Arkansas river bottom, 
 and that bottom has been in alfalfa not over three years, if that long. 
 I think about three years. It always gets better as it gets older here 
 for four or five years, and then I think it begins to get worse. It is 
 the best four or five years after you get a good stand. 
 
 Q. Is not that part of the reason that accounts for the alfalfa crop 
 not being as good on a large number of these lands where you say 
 it has fallen off, that it has been in too long? 
 
 A. Well, I don’t know that it is. I don’t think that that — the 
 alfalfa is not long lived here ; that is, we haven’t been sowing much 
 alfalfa until the last six or eight years. It has been raised here for 
 twenty years, but only in very limited acreage. 
 
 The seed of alfalfa is a very profitable crop. I think they sow 
 the sped again quite often. 
 
 1294 The cesspool I spoke of over here in a building we used as 
 an ordinary cesspool to carry off the offal of the building. 
 
 In 1886 or 1887 when they put in the water system then we con- 
 nected up with it and discontinued the cesspool. There is no water 
 in the cesspool at all. In those days there was two or three feet of 
 it. I think it is four or five years since we examined the cesspool. 
 I am satisfied that there is no water in it now. The sewer had 
 nothing to drain it off, as it was not connected. I don’t know 
 whether it was a drv year or whether the year was dry or 
 
 1295 not the last time I looked at the cesspool. I don’t know 
 whether there has been any water in it since I looked at it 
 
 four or five years ago. 
 
 I was here along in the late ’80’s. It is true that this country was 
 then looked upon about Dodge City as unsuitable for fanning, and 
 that a large percentage of the population went away and gave it up 
 
TfiK STATE oe color a do et AL. 
 
 465 
 
 as a country in which they could not make a living at farming. 
 Notwithstanding the fact that the river has fallen off since that 
 time, it is a better farming country than it was then, I think. There 
 are more people here engaged in farming, and those here are doing 
 better and land is worth more and is gradually and steadily in- 
 creasing ever since that time in price. When they put this ditch 
 in on the south side of the river they excavated it near its 
 
 1296 head below the surface of the water in the river and even be- 
 low the bed of the river, I think. I think they went down 
 
 about five or six feet in depth and ran it along nearly parallel with 
 the river some distance, about eighty rods from the river, I should 
 judge. It was dug in river sand and gravel. I suppose the purpose 
 was to have the water filter through from the river into this canal 
 in order to conduct it off for irrigating purposes. It did that for a 
 time and continued to do it until the river washed it out or filled it 
 up, and then the river broke through over this dam and filled up 
 this canal with mud and sediment so that after that the water 
 wouldn’t come into the ditch and make much of a flow. This dam 
 was put in across the river to turn the surface flow of water into the 
 ditch and they ran it up from its original head in the sand to con- 
 nect it with the surface flow of the water. When the freshet broke 
 down the dam it spoiled the ditch. They were not getting 
 
 1297 enough water out of the underflow here. I think for a year 
 or two they irrigated quite a section. I don’t know anything 
 
 about the drainage of that river above the source of that ditch. I 
 never went up there to examine it. I never heard the farmers say 
 whether their bottoms dried off or whether their crops failed 
 
 1298 or anything about that. I am only speaking from the source 
 down. The dam washed out at the time they completed this 
 
 ditch and they never rebuilt it or cleaned out the ditch. You can 
 sink a ditch below the surface of the water in the river and along 
 close to the channel of the river almost anyplace and the water will 
 come through the sand from the river, if you dig it close 
 enough. I think it will. If you dig it close enough it will, 
 I think. I don’t think they could dig a ditch eighty rods 
 from the river and have the water come in from the river 
 as much as there was there. As to the water in the hole back 
 three quarters of a mile, I think it came from the underflow. I 
 don’t think it seeped through from the river, that is, if it did, it did 
 it in an angular course and not directly, and further up the river. 
 It might have been a general underflow that was moving from the 
 mountains on west across all these plains to get to the low country. 
 It may be the case that there is a sheet of water extending all over 
 this country very gradually moving from the mountains down 
 toward the low country. It looks very reasonable that there is. I 
 don’t know that there is, but I am certain that there is an underflow 
 along the river. That is something that we can investigate our- 
 selves, but as to the general flow, I couldn’t state. 
 
 80—7 
 
460 titE stAtE o# Kansas VS. 
 
 1299 As to any successful seepage or underflow ditch in Kansas 
 or Colorado, I think I knew of a ditch up near Boulder, and 
 
 I have been along that ditch there when they didn’t connect with 
 the river. It runs along a few feet or rods parallel with it, and the 
 ditch filled, and they claimed that was a success. I don’t know 
 how long it continued to be a success. All I remember is that that 
 was the plan, not to run the source of the ditch into the channel 
 but parallel and close enough for the water to seep through. 
 
 I have no information myself of a ditch of that character being 
 operated for two or three consecutive seasons successfully, but I told 
 the parties about that ditch and they went up to see it before they 
 dug this reservoir up here. I was along by that ditch up 
 
 1300 there at Boulder two or three times. That was in 1869. I 
 couldn’t tell you where that ditch was located now. I was 
 
 going up there with a load of lumber and didn’t pay any particular 
 attention, only I heard them remark that that ditch didn’t tap the 
 river at all. I heard it so often that I impressed it upon these Gil- 
 bert boys who were building this ditch to go up and look at that to 
 see if there was anything in it. Probably Boulder creek was the 
 river they ran this ditch parallel with. It was drained from the 
 stream into this ditch. It probably ran along from ten to fifteen 
 feet — a rod or something like that — from the river. 
 
 1301 There has been a great deal more of the outlying country 
 along the drainage of the Arkansas river in this county broken 
 
 up and put into crops than there was ten or fifteen years ago. I 
 think that has had a good deal of influence on preventing as much 
 run-off into the river. In the last ten years I think the river has 
 shrunk fully one-fourth. I think it has lowered it in the winter too. 
 I don’t think we have near the water in the winter that we used to 
 have. I couldn’t answer as to any particular or exact years. I 
 have just noticed that there has been a general decrease in the 
 water. 
 
 Cross-examination. 
 
 By Mr. Campbell : 
 
 1302 The South Side ditch heads about nine miles above Dodge 
 City. I know of the ditch called the Soule or Eureka ditch ; 
 
 1303 it heads approximately twenty miles above Dodge City. The 
 South Side ditch is always referred to locally as the South 
 
 Side ditch. The water-shed of the Arkansas river between here and 
 the State line is from ten to fifteen miles wide on an average. I 
 think there are quite a number of places between here and the Colo- 
 rado State line where reservoirs could be built without much ex- 
 pense. 
 
THE STATE OF COLORADO ET AL. 
 
 467 
 
 Cross-examination continued. 
 
 By Mr. Dawson : 
 
 1304 The water-shed I spoke of is the immediate drainage shed 
 to the river. I don’t mean to include in that the streams 
 
 1305 which run into the Arkansas river in this State away below. 
 If I did the drainage would be much wider. 
 
 I atn probably familiar with the values of farming lands in Ford 
 county in a general way. The improved bottom lands along the 
 Arkansas river in Ford county sell at this time for I should 
 
 1306 say thirty dollars an acre on an average. There are unim- 
 proved lands on the bottom which are in native grasses. 
 
 1307 The uplands bring on an average about three to five dollars 
 an acre in this county, I should judge. There are many wind 
 
 mills operated in this county. They pump the water out of the 
 ground. There are quite a number of them along the valley of the 
 Arkansas river in this county. I should judge there are three hun- 
 dred active wells in the county anyway. Practically every farmer 
 has such a well, and the wells are pumped for the purpose of 
 
 1308 raising water for domestic purposes, including the watering 
 of stock. The city here draws its supply of water from wells 
 
 sunk in the bottom land. The Santa Fe railroad also has a pump- 
 ing well and plant in the vicinity of this city on the bottom of the 
 Arkansas river. 
 
 This is a town of about three thousand inhabitants. 
 
 Redirect examination. 
 
 By Mr. Smith : 
 
 The supply of water for these wind mills and the Santa Fe Rail- 
 road Company and the water-works, I shouldn’t say that it had been 
 increased on account of the underflow. They have been increased. 
 
 This may have been on account of the demand for water, 
 
 1309 but it is probably on account of the shrinkage of the under- 
 flow wholly that their capacity has been increased. I don’t 
 
 think there is as much water now to supply these wind mills from, 
 and the railroad company and the water-works, as there was before 
 the underflow had been lowered. The productiveness of these 
 bottom lands has been certainly decreased because of the lowering 
 of the underflow. The value of these lands has been decreased for 
 the same reason. If there has been a rise in the price of these 
 bottom lands it is not because of the lowering of the underflow. 
 (Objection.) 
 
 f 310 The South Side ditch, to the best of mv knowledge, dried up 
 because of the falling off of the underflow. The immediate 
 stoppage of the ditch was caused by the surface water being turned 
 in from the river, but that was never the cause of the ditch drying 
 up. It only filled a short distance of the ditch with this overflow 
 
468 THE STATE OE KANSAS V§. 
 
 which previous to that would seep in and furnish water for the 
 ditch. (Objection.) 
 
 1311 In my evidence yesterday I don’t think that my estimate 
 of the falling off of the river was strong enough. I think 
 that there has been a decrease in the water of more than one- 
 
 1312 quarter in the last twenty years. (Objection.) The condi- 
 tions for raising alfalfa on the second bottoms as the river 
 
 flows now are not nearly so good as they were years ago. 
 
 The Eureka ditch is now deserted and it never ran more than 
 two or three years. The water gave out at the source. After they 
 commenced digging the ditch they prosecuted the work continu- 
 ously until it was completed. That is my recollection. It is my 
 recollection that as soon as they had obtained their charter they 
 went on with the work as fast as they could, (objection), and 
 ]313 the work was continued from the time they first commenced. 
 (Objection.) 
 
 I think there are about five hundred inmates at the soldiers’ 
 home at the present time. 
 
 Recross-examination. 
 
 By Mr. Dawson : 
 
 Q. You have given the reasons for the failure of the South Side 
 ditch to run water. Is it not true that after the river washed in 
 there and filled up the reservoir and the ditch with muck and mud 
 that the company was out of money and never did clean it out, and 
 did you not say that you knew it at the time? 
 
 A. No, sir, I did not. 
 
 Q. You never knew of them spending any money on it after that, 
 did you, to put it in shape ? 
 
 A. They didn’t on the source of the ditch or reservoir, but my 
 recollection is that they extended the ditch farther east after 
 that. 
 
 1314 The Eureka ditch didn’t wash out near its head by recent 
 floods in the Arkansas river to my knowledge. It probably 
 
 had a number of breaks in it along its course. I know of some. It 
 was fixed up in first class shape — boarded. The embankments on 
 the lower side of the ditch were plank. I think the line of the ditch 
 was a practicable route for the ditch. They irrigated probably 
 eighty or a hundred acres all together under it, that is, under the 
 South Side ditch, not under the North Side ditch. They 
 
 1315 irrigated approximately probably ten thousand acres along 
 the line of the North Side ditch. I think they used the water 
 
 for two or three years. I think ten thousand acres would be the 
 maximum of what they irrigated. That is mv judgment. I don’t 
 know, but just as a casual observation in riding over the country. 
 
 As to these wind mills, I have known of some on my place that 
 couldn’t get all the water they could pump with the level the 
 water has now, but to go down farther two or three feet you could 
 
THE STATE OF COLORADO ET AL. 
 
 469 
 
 get the water. The water has never failed us yet. Three or four 
 feet is as far as I went. I put two mills down there three or four feet 
 deeper than formerly, I think. I got plenty of water, and 
 1316 just as much as I ever had. I never failed. 
 
 Mr. Ashbaugh on behalf of the complainant introduced in evi- 
 dence chapter 425 of the Session Laws of Kansas, 1901, found on 
 page 766, reading as follows : 
 
 “ Senate Concurrent Resolution No. 14. 
 
 “Relating to the Diversion of the Waters in the Arkansas River in 
 the State of Colorado. 
 
 “ Whereas, it is a matter of common notoriety that the waters of 
 the Arkansas river for some time past have been and are now being 
 diverted from their natural channel by the State of Colorado and 
 its citizens to the great damage of the State of Kansas and its in- 
 habitants; and 
 
 “ Whereas, it is threatened not only to continue but also to in- 
 crease said diversion ; therefore be it 
 
 “Resolved, by the senate, the house concurring therein, that the 
 attorney general be requested to institute such proceedings and to 
 render such assistance in other proceedings brought for the same 
 purpose as may be necessary to protect the rights and interests of the 
 State of Kansas and the citizens and property owners thereof.” 
 
 (Objection.) 
 
 1318 L. J. Pettijohn, Dodge City, Kansas. 
 
 Direct examination. 
 
 By Mr. Loomis : 
 
 I live at Dodge City and am receiver of the United States land 
 office at Dodge City, and have been such receiver for six years. My 
 office has jurisdiction over the southwestern part of the State, about 
 one-quarter of the State. The Arkansas river runs through that 
 portion of the State which is under the jurisdiction of the land office 
 at Dodge City. As such receiver I am in possession of the 
 
 1319 books of the office, showing the Arkansas river between the 
 Colorado State line and the west line of Cowley county. I 
 
 have examined these records for the purpose of determining the 
 character of the Government survey along the Arkansas river in a 
 part of this district. These records show that the surveys of the 
 lands were made up to the river banks on each side of the river ; 
 (objection), that is, that the Arkansas river through this district is a 
 meandered stream according to these Government surveys. 
 
 1320 The width of the river is given at some of the section lines. 
 The land on one side is surveyed separately from the land on 
 
470 
 
 THE STATE OF KANSAS VS. 
 
 the opposite side. The section lines do not run across the river, and 
 the survey runs up and down the banks of the river on either side. 
 The land along the Arkansas is surveyed in fractions or parts of sec- 
 tions, which are called lots, and these lots run to the river banks. 
 This is true, that the Arkansas river is meandered on both banks 
 through all the lands in this district. The plats showing the man- 
 ner of this survey were made by the Government. I have some of 
 them here. I have the map showing a part of township 26, 
 
 1321 range 20, and of township 25, range 19, and of township 22, 
 range 16. The maps that I have here are a correct copy of 
 
 1322 the Government map on file in my office at this place. All 
 the other maps are similar to the maps which 1 have just 
 
 identified, I think, and are correct samples of all the other maps on 
 file in the office showing the location of the Arkansas river and the 
 character of the Government survey through the district. These 
 sample maps show the Government survey of streams that are not 
 meandered. One is called Bluff creek, in township 33, range 20 
 west, in Comanche county. The section lines of these streams run 
 across the streams and the survey includes the stream. The plat 
 shows no attention was paid to the stream in the making of that 
 survey. (Objection.) These maps that I have identified are fair 
 samples of the Government maps on file in my office so far 
 
 1323 as they purport to show the Government surveys along 
 streams which have not been meandered, so far as I have 
 
 observed. (Objection.) 
 
 (Complainant’s Exhibits A-9, A-10, A-ll and A-12 offered in 
 evidence. Objection to Exhibit A-12.) 
 
 1324 All the maps in my possession show the meandering of the 
 stream the same as the maps which have been introduced in 
 
 evidence. (Objection.) They are similar to these. The Arkansas 
 river through my district was meandered by the Government in 
 making its survey along the banks of the river on either side. A 
 Government lot of land is a fractional part of a quarter. The lot in 
 making up a survey is located along the north and west sides 
 
 1325 of the townships and along the river ; that is to say, where 
 the stream is meandered. Wherever the river is meandered 
 
 the fractional quarter sections along the river for convenience are 
 divided into lots where the}^ show more or less than forty acres, but 
 if it is an even forty it is not called a lot. In making the Govern- 
 ment survey the lots are not shown along streams that are 
 
 1326 not meandered, where the survey crosses. The length of my 
 district is about three hundred miles, and the district is 
 
 1327 about seventy-five miles wide. The north line of the district 
 is the north line of Hamilton, Kearney and Finney counties p 
 
 and on the east the north line of Barton and Pawnee counties. 
 
THE STATE OF COLORADO ET AL. 
 
 471 
 
 Cross-examination. 
 
 By Mr. Hayt : 
 
 These three exhibits that were selected from the plats in my dis- 
 trict were brought over here by the attorneys. They asked for sur- 
 veys in this county and other counties near. These were not all the 
 plats of which we had copies in our office at the time. We have a 
 number of copies here, but I don’t know how many apply to the 
 river townships. I don’t know of any particular reason myself why 
 these were selected instead of others. The word “ lots ” is a 
 
 1328 customary designation in other instances, particularly with 
 reference to the excess over a township or the lack of land to 
 
 fill out a township. It is used on township lines and the river. 
 
 Redirect examination. 
 
 By Mr. Loomis : 
 
 I am willing to produce for the benefit of counsel for Colorado 
 and for their inspection all copies of plats in my office. They 
 
 1329 are welcome to all of them. My recollection is that in select- 
 ing these sample maps they only wanted one or two for a 
 
 county, and as good a selection was made as possible, to show the 
 Government surveys through these different townships in different 
 counties. The width of the river as shown by these maps, 
 
 1330 taking the north side of section 29, 26-20, is 1,419 feet. 
 (Objection.) The average width through the whole town- 
 
 1331 ship is over 1,500 feet as shown by Exhibit A-9. The aver- 
 age width of the river as shown by Exhibit A-10 is 1,584 
 
 1332 feet. The average width of the river through the township 
 as shown by Exhibit A-ll, is very close to 1,400 feet. 
 
 1334 The Government surveys west of Dodge City were made in 
 1871 and completed in 1873, as shown by the maps already 
 introduced in evidence and others that I now produce. 
 
 1336 The width of the river here straight across is about 1,500 
 feet, and the average width through that township is between 
 1,300 and 1,400 feet. 
 
 1337 At the southwest corner of section 2, 21-15, the width of 
 the river at its narrowest point is 1,616 feet, and the average 
 
 width of the river through that township is between twelve and 
 thirteen hundred feet. 
 
 1338 All of these plats now exhibited show the meandering of 
 the Arkansas river, and in respect to the meander of the river 
 they are the same as the plats which were introduced in evi- 
 
 1339 dence. All of these plats which show the Arkansas river 
 show the meandering of that river. 
 
THE STATE OF KANSAS VS. 
 
 Recross-examination. 
 
 By Mr. Hayt : 
 
 These averages are about the same as the average width of 
 the river shown upon the other plats similar to those to which 
 I have testified. These additional maps do not cover the 
 territory west of here. Township 26 south, of range 20 west, 
 is located — I think it is the southwest corner township of 
 Edwards county. It is about twenty-five miles east from 
 Dodge City. The width of the river as shown by the plat as 
 it enters that township is 1,239 feet. Where it strikes the 
 Osage land here it is just about the same width. At the 
 northwest corner of section 31. 21-15, the plat shows the width 
 of the river at its narrowest point to be 1,056 feet. At the 
 northwest corner of the northeast quarter of section 31, township 
 21, range 15, it is about eight hundred feet. Eleven of these 
 
 1337 other plats which I have brought in here show the meandered 
 stream. The following townships and ranges are embraced 
 
 1338 within those eleven plats: 24-18; 23-18; 20-14; 21-16; 
 22-17; 19-13; 25-20; 24-19; 19-13; 20-14. There are ten 
 
 of these all together and one of them is a duplicate. All these town- 
 ships exhibited upon these plats are south of range 15, west of the 
 sixth principal meridian. Speaking of all these plats, I mean 
 
 1339 these ten plats last referred to. 
 
 Cross-examination. 
 
 By Mr. Campbell : 
 
 1333 The survey shown in Exhibit A-10 was made in August, 
 1871. It was for Edwards county, which lies east of us. I 
 
 don’t know when the Government survey was made in these western 
 townships. Approximately, however, some time in the ’70’s. The 
 public survey was extended oyer the lands east of here before 
 
 1334 it was extended over those west. Approximately there are 
 more than six hundred thousand acres of public land in this 
 district. 
 
 1335 I stated that the records in my office show that the Ar- 
 kansas was meandered to the dividing line between Colorado 
 
 1340 and Kansas. There is occasionally some public land being 
 taken up in this district, most of it in the western part. This 
 
 land is being taken up under the homestead act. 
 
 1341 H. B. Bell, Dodge City, Kansas. 
 
 Direct examination. 
 
 By Mr. Loomis : 
 
 I have lived in Dodge City for thirty years, and have been ac- 
 quainted with the Arkansas river during that time. I came here 
 
 472 
 
 1332 
 
 1334 
 
 1335 
 
 1336 
 
 1337 
 
THE STATE OF COLORADO ET AL 
 
 473 
 
 in 1874. During the last ten years or fifteen years there has 
 been much less flow in the river, with the exception, I think, 
 of one or two }^ears, than during the first ten or fifteen 
 
 1342 years that I lived in this county. During 1872 or 1874 — 
 one of those years was very dry. I would think that during 
 
 the recent years there is not over one-tenth of the amount of water 
 that there was in the earlier years, barring the rises and the floods, 
 in the river. During the first ten years at normal times there was 
 a good flow of water all the time — a foot to eighteen inches — and 
 the river was wider than it is now, with the exception, I think, of 
 about two years, as near as I can remember. During the early times 
 the current of the water flowing in the river was nearly the entire 
 width from bank to bank and would be from twelve to eigh- 
 
 1343 teen inches in depth. As to the average flow of the river 
 now during most of the year, it don’t flow most of the time, 
 
 excluding the time of high water and freshets. It is almost dry. 
 There is just a little stream — very little. It is almost dry. It is 
 a much narrower channel now than it was. It has drifted in. The 
 average width of the channel of water flowing in the river at the 
 present time I wouldn’t think generally over eight or ten feet and 
 from three to seven or eight inches in the bed of the channel, in 
 depth. When it does flow at all it is six or eight feet wide. A good 
 deal of the time it don’t flow at all, and it is hard to estimate that, 
 because there are places it comes like a spring and you go up two 
 or three miles and it is dry. We noticed this falling off in the 
 flow of the river I would say about twelve to fifteen years ago. 
 
 Cross-examination. 
 
 By Mr. Dawson: 
 
 1345 I remember the time when the people of Kansas talked 
 about the rains moving wesc so they could raise crops farther 
 
 west, and they still talk about that. I don’t remember when this 
 talk commenced. I suppose when the land agents opened their 
 offices was about the first talk we had of it. They were probably 
 the originators of the notion, I think along some where in 1884 or 
 1885. I think the rains in this locality are better distributed now 
 so that crops are more certain than they were in the earlier years. 
 
 I first noticed the shrinkage in the flow of water twelve to fifteen 
 years ago, and it seems to have been getting less most of the 
 
 1346 time since. I can’t say that I noticed any falling off between 
 1874 and 1884. If there was any shrinkage I didn’t notice 
 
 it. One thing that always called my attention to the river more 
 than anything else, we generally had a toll bridge here. We couldn’t 
 ford it without a double team. 
 
 I have never noticed that the native grasses here show a falling 
 off as the country becomes well settled. Our uplands have been 
 grazed so heavily with cattle, and then there are so many cattle 
 
474 
 
 THIC STATE OF KANSAS VS. 
 
 shipped to this point and unloaded, they have eaten the grass 
 
 1347 off. 1 think they pasture nearly all of this native hay land 
 here. It is not very often that the native meadow hay is 
 
 allowed to go to seed. After the hay is cut off in the summer 
 the cattle are put on and allowed to pasture it in the fall and 
 winter. I think that would deteriorate the grass or hay that 
 would grow upon a given number of acres somewhat. It would 
 make it surface-bound and hard. I think is cramps it. I think 
 that would hurt it some. I think the falling off in the native 
 hay crop is due to both causes. I couldn’t say what per- 
 centage is due to each. The river bottoms do not cut near the 
 hay they used to. I think, though, it may be more from the over- 
 crowding of cattle, and the river going down also. I don’t know 
 how near the surface of the grass land the water needs to be 
 
 1348 to make a good crop. I know there is a falling off of pretty 
 nearly one-half, caused, I think, by the water going down, 
 
 and to its being tramped by the cattle. There is not much alfalfa 
 on the first bottom as on the second bottom. Alfalfa is a more prof- 
 itable crop than native hay. Where I have noticed alfalfa on 
 the first bottoms the crop is generally good. I have never 
 
 1349 noticed that the water has sunk to a greater depth below the 
 surface than it was formerly. I think, though, that the 
 
 underflow would leave as the river goes down. I have made no 
 investigation of that and I have no accurate information on the 
 subject. They have been putting in new ground in crops in the 
 last thirteen years. There has been probably t went] -five to thirty 
 per cent, increase in acreage in the last fifteen years. 
 
 1350 As to the run-off of rains being affected by the lands being 
 put under cultivation, I think that depends upon whether 
 
 the lands are level and whether it is a dashing rain. I guess that 
 ploughed land would absorb more water. It would take it in better 
 than that which has sod on it. I think that follows everywhere. 
 This might affect the river very little, probably. 
 
 1351 I know there was a dry year somewhere about 1872 or 
 1874. My recollection is that one of those years the river 
 
 was nearly dry. The river was not quite as low that year as it gets 
 of late years. I thought it was dry in 1872. In 1874 it was very 
 dry, I think. I don’t remember any dry years in the ’80’s. It was 
 very low in 1874, is my recollection. We generally have a 
 
 1352 June rise here in the river. We had several rises this year. 
 We don’t have them every year, as much as others, but we do 
 
 have a rise about two or three times every summer. The rise does 
 not last very long unless we have a cloudburst or something along 
 the river. It runs out pretty quick sometimes. It comes low water 
 and then there will be a cloudburst from another direction and it 
 comes up again. I would think the usual periud of duration of 
 such rises would be from five to ten or fifteen days, somewhere 
 along there. 
 
THE STATE OF COLORADO ET AL. 
 
 475 
 
 1353 I am in the real estate business, but do not pay very much 
 attention to it. I don’t think farm lands are quite as high on 
 
 the average as they have been at some times in the past. They 
 are as high except during boom periods. In 1885 and 1886 there 
 was a boom. In 1896 the lands went down to nothing almost. 
 They started up again two or three years ago, I guess, and they have 
 been going up ever since, gradually. The low lands are worth from 
 ten to fifteen dollars an acre. The alfalfa lands are worth the most. 
 Alfalfa is mostly grown on the second bottom. The second 
 
 1354 bottom is higher than the first. The uplands are worth $4.50 
 to $5.00 per acre. I think alfalfa lands are worth about $30 
 
 an acre — from $20 to $50 an acre — and the native grass lands about 
 $10.00 an acre. Twenty years ago there was not any crops raised 
 or planted. The country has been very successfully farmed of late 
 years — more profitably of late years than before. 
 
 Redirect examination. 
 
 By Mr. Loomis : 
 
 1355 My idea is that the lowering of the underflow has lessened 
 the growth of crops on the bottom lands along the river. 
 
 (Objection.) In my judgment the bottom lands along the Arkansas 
 river would be more valuable if the underflow were as high 
 
 1356 now as it was when I first knew the Arkansas river. In my 
 judgment the existence of the underflow adds to the produc- 
 tiveness and value of the bottom lands. (Objection.) Since I came 
 here the population of the county has increased, and it has in- 
 creased also on the upland. The main crops raised on the uplands 
 are wheat, oats, barley and kaffir corn, and upon the bottom lands 
 
 are native hay and alfalfa. 
 
 1357 I referred to the toll bridge. We could hardly ford the 
 river most of the time without doubling teams and getting in 
 
 the water and sand, and it would cost a dollar to cross the bridge, 
 but everybody preferred to pay the dollar rather than get into the 
 river. I think this was in the summer time and during the grow- 
 ing season. Now you can cross the river most anywhere. They 
 can ford it at home and all around. 
 
 1358 S. Gallagher, Jr., Dodge City, Kansas. 
 
 Direct examination. 
 
 By Mr. Loomis : 
 
 I have lived in Dodge City since April, 1877. I have been ac- 
 quainted with the Arkansas river, I might say, continuously. I am 
 city clerk at the present time. I have been clerk of the district 
 court. From my place of business the river is in sight at all times. 
 The flow of water in the river has been unquestionably less in the 
 
476 
 
 THE STATE OF KANSAS VS. 
 
 last few years than it was during the first years I was ac- 
 
 1359 quainted with it. It has been unquestionably less for ten or 
 twelve years. This has been so pronounced that it lias been 
 
 the general talk and conclusion of everybody that we didn’t have 
 the water we used to have. There is not, I will say, a quarter of the 
 amount that there was formerly when I first knew the river. When 
 my attention was first directed to the marked diminution in the 
 flow of the river was when the Eureka canal had to quit business on 
 account of the lack of water in the river. My recollection is 
 
 1360 that they had water in the canal for possibly two years. I 
 don’t know how far down the canal the water flowed, but we 
 
 had plenty of water here in the canal. The canal tapped the river 
 at Ingalls. The water didn’t flow down into the canal because there 
 was none in the river. We generally get a small June rise here, but 
 nothing in comparison to what it formerly was, and then we are de- 
 pending almost entirely upon local conditions. The flow of the river 
 don’t last any length of time at all. There is no water to 
 
 1361 amount to anything. There would be water in the river a 
 little ways at times. The local conditions I spoke of were 
 
 local rains, cloudbursts and such things as that that they have west 
 of here and through here. The June rises now don’t last as long as 
 they used to and there is not the volume of water that we used to 
 have. In the early } r ears, I can’t tell you definitely, but my recol- 
 lection is that after the June rise we generally had a good stage of 
 water in the river for — oh, possibly six weeks or may be two months. 
 During the last ten years we haven’t had the volume of water we 
 used to have. The effect of the June rises on the bottom lands was 
 to increase the vegetation. It raised the underflow above the nor- 
 mal condition and gave life and vigor to the hay lands along the 
 bottom. We didn’t have much alfalfa at that time. It thoroughly 
 saturated the adjacent lands, and this added to the product- 
 
 1362 iveness of that soil. (Objection.) 
 
 1 was acquainted with the South Side ditch. Its source of 
 supply was from the underflow. I have no knowledge of its being 
 cut off until after the reservoir was filled. (Objection.) It was filled 
 because of a freshet and the river ran over its banks and filled it 
 full of black muck and stuff that comes down with the freshet. 
 This filled the reservoir. There had been a supply of water in 
 the ditch before the reservoir was filled. There was all the 
 
 1363 water they could make use of. I should say that the supply 
 of water was for the first nine miles at least, and for that dis- 
 tance there was a sufficient supply of water for all their wants. 
 
 Cross-examination. 
 
 By Mr. Hayt : 
 
 This year we have had considerably more water than usual for 
 the last six or seven years — one-third more I should think. This 
 
HlF STATk OF COLORADO Ftf AL. 
 
 4 ?? 
 
 year has been a kind of an extraordinary year. I can’t say 
 
 1364 what time the water came up in the river this year. I be- 
 lieve it came up seven . or eight weeks ago. It was some 
 
 time in June, about the first of June, I believe. There has been 
 some water in the river ever since that time. I have been across 
 on the bridge several times. There is a good deal more water than 
 usual in the river. At my usual point of observation, and that is 
 at the stables of the fair association, it has frequently been from 
 bank to bank, but the banks there are narrower than almost any 
 place else along there. There is an island in the center and that 
 throws it on each side. 
 
 1365 Q. Has the river been at these times of high water since 
 the first of June a thousand feet wide? By the river I mean 
 
 the water. 
 
 A. That is, you mean the average? 
 
 Q. No, I mean at the highest. 
 
 A. At any time ? 
 
 Q. Yes. 
 
 A. Well, I suppose the banks — there are places that distance from 
 bank to bank. 
 
 Q. At those times how deep has the water been in the deepest part 
 of the channel ? 
 
 A. Oh, I don’t know. 
 
 Q. As much as three or four feet ? 
 
 A. The channel changes with every freshet. 
 
 Q. Now, when the river is at its highest how deep, in your judg- 
 ment? 
 
 A. Oh, three or four feet. 
 
 Q. And from that it thinned out until it got beyond the channel 
 the greatest distance ? 
 
 A. Yes, sir. 
 
 It is not true that the river has been practically the height I have 
 just described since the June rise up to the present time. I can’t 
 say as to how much of the time it has been as high as I have de- 
 scribed it. I have been surprised with the river staying up this 
 year as long as it has. I account for it by the rains we have 
 
 1366 had. In the earlier years the river usually had about the 
 volume of water that we had this year, or more, all the 
 
 time. I can’t say as to the river being low in the month of Septem- 
 ber in the earlier years. Sometimes it would go down. I have 
 seen it when there was but very little water. I have seen the 
 river dry at this time prior to 1891, so that there was practically 
 no water running in it. I believe that was in 1878. I have no 
 recollection of any other year. I was not on the river in 1874. I 
 was in Illinois. I came here in 1877. The amount of land 
 
 1367 under cultivation in crops has more than doubled along the 
 Arkansas river in this vicinity since I first came herein 1877. 
 
 (Objection.) Where they have the benefit of the underflow I believe 
 that the principal crop is alfalfa, the most profitable crop, and then 
 
m 
 
 TiTE STATE OF KANSAS VS, 
 
 they try to raise kaffir corn, sorghum, wheat, oats, barley, r} T e, — I 
 expect there is more acreage put into wheat than into any other 
 crop, and next to wheat is kaffir corn and sorghum, for for- 
 
 1368 age. (Objection.) Wheat is usually raised here upon the 
 uplands. (Objection.) There is quite a lot of wheat raised 
 
 on the bottom lands. As to the value of lands, the second bottom 
 and the bottom lands are generally together. (Objection.) The 
 bottom lands are more valuable than the uplands. (Objection.) I 
 don’t know that the bottom lands contiguous to Dodge City 
 
 1369 have advanced much in value except those seeded down to 
 alfalfa. (Objection.) Such lands right close to Dodge are 
 
 worth more than those out West where they have to feed it on the 
 ground. I don’t believe that I am sufficiently familiar with the 
 value of these lands to give the market value. 
 
 These ditches that were built here were built to supply water for 
 agricultural purposes. I won’t say that it was determined about 
 that time that crops could be successfully grown here without irriga- 
 tion. No, sir. They could doubtless be grown a great deal more 
 successfully with irrigation than they could without it. 
 
 1370 There was one or two years about the time these ditches 
 were started that farming was about the most successful out 
 
 on the uplands or as successful as we have had. They raised some 
 crops for two or three years. My recollection is that it was along in 
 1885. The parties that were here on the upland generally came out 
 to get the benefit of Government land and put a good big mortgage 
 on it and they got homesick and left. What crops they undertook 
 were a failure, but there were very little crops put in the way they 
 do now. In that early day there were good farmers here and poor 
 farmers, and the good farmers are still here, and the good farmers 
 raise good crops now generally, usually, and the poor farmers 
 fail. 
 
 1371 I said that when the underflow was raised above the 
 normal it was a benefit to the meadows. I have a theory 
 
 about the underflow, and that is that it is not dependent upon local 
 conditions at all, excepting to raise it above a normal condi- 
 
 1372 tion ; that it don’t lower it below the normal. I have made 
 inquiry of parties that had wells that were supplied with 
 
 water from the underflow and found that there was no draught that 
 they could make from those wells that had any perceptible effect 
 upon them, and there seemed to be an inexhaustible supply of water 
 at all times where the underflow was pronounced. (Objection.) My 
 opinion is based upon some other facts that have been told me 
 by parties that have made investigations, and that opinion is that 
 the underflow has a diurnal tide. Twice a day it has a perceptible 
 rise and a perceptible fall, and its supply is something I don’t know 
 anything about. I never went that far, but I do not believe it is 
 dependent upon any local rises. I believe it is there. The 
 
 1373 farmers up and down the river here largely have wells 
 worked by wind mills. The city of Dodge City is supplied 
 
ftfiE STATE OE COLORADO ET 1 AL. 
 
 479 
 
 With water for domestic purposes by a water-works system pumping 
 water down on the bottom, up the river from where we now 
 
 1374 are. The Atchison, Topeka and Santa Fe railroad gets its 
 supply of water here for railroad purposes by pumping. 
 
 They have a well sunk down to another stratum of water that is on 
 the north side here. It is pumped up by steam. I don’t know 
 the depth of this well. 
 
 Cross-examination. 
 
 By Mr. Campbell : 
 
 1375 The head of the Eureka canal is about twenty-six miles 
 above here. After it was finished it conducted water from 
 
 the river and there was a sufficiency to fill the canal. This lasted 
 for a couple of years. 
 
 I saw them using water from the Eureka canal east of Spearville, 
 sixteen miles east of here and about forty miles from the head. 
 The ditch seemed to be carrying all that they wanted. I saw 
 
 1376 this about a year or eighteen months after the ditch was 
 completed. I don’t know when they began the ditch ; they 
 
 must have been one or two years at it. 
 
 1377 H. D. Chambliss, Dodge City, Kansas. 
 
 Direct examination. 
 
 By Mr. Loomis : 
 
 I have lived in Ford county since 1872. My place is on the 
 Arkansas river, three miles east of Dodge City. I was seven years 
 old when we came there in 1872 and have lived there continuously 
 ever since. The flow of the river during the late years has been less 
 (objection) than it was during the first years that I knew it. 
 
 1378 I don’t think that the volume throughout the year would be 
 one-twentieth of what it used to be when I was a lad. I 
 
 should judge that this change in the flow of the river became notice- 
 able twelve or fifteen years ago, along about that time. During the 
 early years we always had a good big channel of water, I should 
 judge anywhere from four to five hundred feet wide, and it ran 
 from a few inches to about three feet, in normal times, and would 
 generally reach very nearly from bank to bank at the normal times. 
 I was on the river almost all the time. I used to hunt and fish and 
 herd cattle. My father was a stock man at that time. I 
 
 1379 never remember seeing the river dry until along I should 
 judge ten or twelve years ago. That is, when the river 
 
 would become dry so that we could walk across it without getting 
 our feet wet we noticed it more particularly than we had before. 
 With the exception of this year, for the last ten years I am almost 
 sure it has been perfectly dry every year from a month to four or 
 
480 
 
 THE STATE OE KAtisAS V?* 
 
 five months. I have known it to be dry from the latter part of June 
 clear on until it would start in November. This has been the usual 
 and ordinary condition between the months named for the last ten 
 years, I am sure, excepting this year. (Objection.) I am familiar 
 with the rises that occur in the river. I have two fences that I have 
 to keep across the river on account of my cattle and I have to 
 
 1380 watch the rises closely. There is nothing positively regular 
 about them. We generally have a rise in June and we always 
 
 get it from a washout. I don’t think we ever have any real June 
 rise any more. In the early days we always counted on the June 
 rise as regularly as the seasons came. This continued until about 
 ten or twelve years ago. Since that we haven’t considered that we 
 had any. In fact I watched the wires and would never remove my 
 fences only when I got news of a rise that would come from rains in 
 the mountains. The river usually in former } r ears came up gradu- 
 ally about the middle of June and the volume increased gradually 
 for a week and it would come sometimes so that it would get out of 
 its banks a very little, and it would go down gradually for three or 
 four weeks until it got down to a normal stage. It is nothing like 
 I spoke of before. There are five or six weeks I should 
 
 1381 judge that it would be what we might consider high, that is, 
 above the normal. That condition lasted down to about ten 
 
 or twelve years ago. 
 
 Cross-examination. 
 
 By Mr. Dawson : 
 
 I have a farm of about five hundred acres here on the river bot- 
 tom. I farm the land and pasture some of it and have some of it in 
 alfalfa. I also have some upland. All my hay land is on the bot- 
 tom. The alfalfa is on first and second bottoms. The best is on the 
 second bottom. The first bottom is the better native grass 
 
 1382 land. Alfalfa land is the most valuable. I can’t say about 
 the water in the river in 1874. I don’t remember anything 
 about that particular year. I don’t remember anything scarcely 
 
 1384 about the river until I was about eleven or twelve years old. 
 I think the winter flow has been of late years about one-half 
 
 as great as it used to be. 
 
 I think there is a great deal more country along the Arkansas 
 river under cultivation now than when I first knew the river. Of 
 course ploughed land will absorb the water more than ground that 
 has not been ploughed. It doesn’t run off as fast. My place is on 
 both sides of the river. There is a creek on the south side lying ten 
 or twelve miles south of the river and running parallel to it for 
 twenty-five or thirty miles, called Mulberry creek. The source of 
 that creek is on higher ground than the river. It runs into 
 
 1385 the river east of my place about fifteen or sixteen miles. It 
 is not a running stream all the year round ; it only runs near 
 
 the mouth of it for a few miles, and there it runs the year round. 
 
THE STATE OF COLORADO KT AL. 
 
 481 
 
 My land is between the river and the creek, and at my place the 
 creek is about nine miles from the river, south. As you go back 
 from the river in either direction south or north the country grad- 
 ually rises from the river. 
 
 Redirect examination. 
 
 By Mr. Loomis : 
 
 1386 In the early days I used to through the summer very fre- 
 quently be able to go to the river and catch a mess of nice 
 
 fish. Everybody fished in the river more or less at that time. In 
 recent years we don’t have any fish unless the river stays up a long 
 time. 
 
 When we came here the population in the county, outside of the 
 soldiers at the fort, was possibly a hundred permanent residents. 
 The population of Ford county now is something like seven thou- 
 sand, and of Dodge City something like three thousand. 
 
 1387 They began to settle along in the bottoms in 1872 and 1873. 
 The bottom lands were settled up before the uplands. I have 
 
 a well that I have examined frequently since it was put down 
 eleven years ago. When I put the well down — it was for irrigation 
 purposes — it was ten feet, lacking a couple of inches, to the level of 
 the water when the pump had not been running. We measured it 
 at the time we put the well down. A year afterwards we noticed 
 that the water was lower and we measured it again and it was nearly 
 eleven feet to water, and the well now at the present time is right 
 at twelve feet to water. This well was dug, as nearly as I 
 
 1388 can remember, in 1893. It is about half a mile from the 
 river. I have noticed that the river banks are higher to the 
 
 sand bed than they used to be. I have noticed that it is farther to 
 water — to the underflow as we call it now — than it was when we 
 first put that well down. I have noticed when the river would come 
 up, very frequently, holes that were below the level of the river at 
 normal times when it would seep up, how they became two or three 
 feet deep where there was just little water. (Objection.) I 
 
 1389 know one hole in particular on my place that is three or four 
 hundred yards from the river. The condition I have just 
 
 described is still true. When the river rises the water comes up in 
 that hole. 
 
 Recross-examination. 
 
 By Mr. Dawson: 
 
 The well I have spoken of was dug in 1893 and it was ten feet to 
 water, lacking two inches and a year later it was eleven feet to water, 
 or very nearly, and now it is nearly twelve feet; I think it 
 
 1390 lacks 3 or 4 inches. This is an open well, and I use it every 
 day. The water is pumped up with a wind mill. I have 
 
 never noticed the water fluctuating in this well from day to day or 
 
 31—7 
 
482 
 
 THE STATE OF KANSAS Vs». 
 
 week to week when it was being pumped. There seems to be no 
 limit to the water in the well. This well has a milk house over it 
 and it is covered up and I have to go down and see how the well is 
 and it is very rarely we notice it, only when we go down to fix the 
 pump. Nothing has ever been done to the well since we put it 
 down. 
 
 1391 The holes I have spoken of are holes along a depression 
 where there is a slough, and the slough would indicate that 
 
 there has been an old channel of the river along where the slough 
 runs, and these holes show a rise and fall of the water as the river 
 rises and falls, and if the river rises high enough it will run water 
 over the surface into the slough. There has been a large increase 
 m the number of wells operated by wind mills in this county in the 
 last ten or twelve years. Every farmer in the bottom has from two 
 to four. The water is pumped generally for domestic and 
 
 1392 stock purposes. A few use it for irrigation. I use mv well 
 to irrigate a garden of about an acre. I can pump water 
 
 enough with this wind mill to irrigate an acre and water all the 
 stock. I suppose there are more than three or four hunderd wells 
 running by wind mills in this county. I expect there are five or six 
 hundred of them. 
 
 1393 M. W. Sutton, Dodge City, Kansas. 
 
 Direct examination. 
 
 By Mr. Ashbaugh: 
 
 I have lived in Dodge City since the last da} r s of May, 187(5. I 
 am a lawyer, and am acquainted with the Eureka ditch. I was at- 
 torney for it for several years. To the best of my recollection that 
 ditch was begun in 1882 or 1883. The preliminary survey might 
 have been made before the charter was taken out. Actual work on 
 the construction of the ditch was begun soon after the charter was 
 taken out, and it continued on until the ditch was completed. 
 
 1394 This work was continuous. To the best of my recollection, 
 the water was turned into the ditch in 1885 or 1886, and it 
 
 continued to run in the ditch until 1889 and then there was no more 
 water, because the water in the river gave out. The preliminary 
 survey may have been made a month or six months before the 
 charter was taken out. That ditch is now absolutely dry and has 
 been since 1889, except four or five miles at the head of it, and that 
 has been used as a ditch ever since when there was high water in 
 the river. During normal stages of the river there has been no 
 water in the ditch. The river is dry. There is none running. My 
 recollection is that that ditch was forty feet wide in the ground 
 where it is dug, saying nothing about the banks made by throwing 
 out the dirt. 1 couldn’t tell exactly how deep the water was in it, 
 
THE STATE OF COLORADO ET AD. 
 
 483 
 
 but I think it was about three feet. It was about a hundred 
 
 1395 miles long. My recollection is that the plats show ninety-six 
 miles of main ditch. It tapped the river near Ingalls in 
 
 Gray county and emptied into Coon creek in the eastern part of 
 Ford county, and Coon creek enters into the Arkansas river near 
 Kinsley. 
 
 Cross-examination. 
 
 By Mr. Hayt: 
 
 I think this ditch went dry in 1889 because there was no water 
 in the river. It might have gone dry a year earlier. I presume its 
 going dry was a matter of discussion among the officers of the com- 
 pany and others, but I don’t recollect any discussions now; it is a 
 good while ago. At that time it was attributed to taking this water 
 out of the river above in Colorado for irrigation, and some talk was 
 had about the ditch commencing an action in the United 
 
 1396 States court to restrain those ditches in Colorado from taking 
 the water. That was as early as 1889, if not a little earlier. 
 
 Nothing was done towards bringing a suit, and the ditch was prac- 
 tically abandoned and closed up, unless it is those few miles at the 
 upper end of it, and the neighbors I understand just use that with- 
 out regard to its ownership or anything. 1 don’t think the people 
 here at Dodge City think anything much about this water question 
 one way or the other. 
 
 Cross-examination. 
 
 By Mr. Campbell : 
 
 1397 The cost of the Eureka ditch ran up into the hundreds of 
 thousands. How much I would not be able to say. I only 
 
 know from what I was told, that it was close to three hundred thou- 
 sand dollars. The Soule ditch was built for the purpose of irrigat- 
 ing land. It is fair to assume that irrigation in this vicinity would 
 make the fields yield abundantly, whereas they do not yield any- 
 thing now but grass, and this was the purpose of constructing the 
 North Side ditch on the Arkansas river, for which ditch I was the 
 attorney. It was the understanding in this vicinity that if you 
 could get water on these lands for irrigation it would increase the 
 annual production. That was the belief of the people who con- 
 structed the ditch and the people who lived here. It was generally 
 believed in this country that if we could get water on these lands 
 here by irrigation it would increase the production of crops. 
 
 Cross-examination continued. 
 
 By Mr. Hayt : 
 
 1398 The original name of the company that constructed this 
 ditch was the Eureka Irrigating Canal Company. The name 
 
484 
 
 THE STATE OF KANSAS VS. 
 
 was afterwards changed, and I can’t give the new name. I acted as 
 attorney for both companies. The officers of the company talked 
 with me with reference to the diminution of the water in the river 
 and its total failure, and it is my recollection that the cause as- 
 signed was the irrigating canals in Colorado exhausting the supply 
 of the river. I advised them in reference to that. I advised them 
 that they were the prior appropriators and that I believed if they 
 would commence this case in the United States court the ditch com- 
 panies of Colorado that had been taking out water since they had 
 taken out that ditch here and were using water could be restrained 
 from taking out water to the detriment of this ditch. I don’t 
 
 1399 think the question of the statute of limitations was discussed 
 to any extent. But when the water commenced to fail that 
 
 subject commenced to be discussed by the ditch company, and I ad- 
 vised proceedings of the kind mentioned to prevent their taking the 
 water out, but no such proceedings were begun. I presume that I 
 had in mind at that time that if suit was not properly commenced 
 at that time it might be barred by laches or by the statute of limit- 
 ations, but I don’t recollect that I did have that in mind. 
 
 1400 George C. Laird, Dodge City, Kansas. 
 
 Direct examination. 
 
 By Mr. Ashbaugh : 
 
 I live seven miles west of Dodge City and have lived there for six 
 years. My place is a little over half a mile from the Arkansas river. 
 My business is raising alfalfa aud handling cattle. I have about 
 one hundred and sixty acres of land seeded and I run about two to 
 four hundred head of cattle. The average crop of alfalfa 
 
 1401 for the season is from a ton to a ton and a half per acre. I 
 make three cuttings. For the first two or three years after I 
 
 went there the average yield was from three to four tons to the acre. 
 The yield of my alfalfa has fallen off fully one-half since I have 
 been there. I raise alfalfa for seed when I can. I attribute the fall- 
 ing off in the productiveness of my alfalfa to the lowering of the 
 water in the river. It is the only cause I can give for it. The water 
 has materially lowered in the river since I have lived on the banks. 
 The water has been pretty high this year of 1904. The other years 
 that I referred to were down to 1904. 
 
 I suppose the average price of alfalfa in the fields or in the 
 
 1402 stack would be about four dollars per ton. It has been 
 higher during the last two or three years than it was before. 
 
 We raise alfalfa on the bottom lands. I have first and second bot- 
 tom land, or lower and higher bottom land. There is six or eight 
 feet difference between my first bottom and second bottom lands. 
 When I went there my best alfalfa land was closest to the 
 
 1403 bluffs. On the highest ground that I have was the best 
 alfalfa; now my best alfalfa land is on the lower bottom. 
 
 The lowering of the water in the river has brought this change about. 
 
THE STATE OF COLORADO KT AL. 
 
 485 
 
 Cross-examination. 
 
 By Mr. Dawson : 
 
 When I came to this place six years ago there were about one hun- 
 dred acres of alfalfa on it. I have about sixty acres — some on 
 
 1404 the lower and some on the higher ground — first and second 
 bottom. I don’t know how deep I would have to go to find 
 
 1405 water on my first bottom. On the second bottom it is six- 
 teen feet before you touch water. On the second bottom I 
 
 went sixteen feet to water last summer. I put down a well right at 
 the foot of the bluffs. That is just as high as my alfalfa land. I 
 have some alfalfa east and some west of that, so that it is just about 
 as high as any of the alfalfa is. I don’t know whether the water 
 under the surface there or at any other place on my land is any 
 lower than at any other time before. I don’t know anything about 
 it. I don’t raise any natural hay, only a little I cut on the island. 
 I raise nothing but alfalfa on my first bottom. 
 
 I know there has been a falling off in the river in the last six 
 years. It flowed more water the first three or four years that I was 
 there than during the last three or four. I can’t describe the vol- 
 ume. There was always water in the river. That was the princi- 
 pal thing I took notice of, was that there was enough water to 
 
 1406 water my stock. That was all I cared for. It is not all I 
 care for now. I would like to have the water deeper. During 
 
 the first three or four }'ears I was there the water in the river during 
 ordinary stages would go down sometimes until it wouldn’t be in 
 the main channel more than two or three rods wide and perhaps 
 four or five inches deep, but it never went dry. It went dry last fall. 
 That was the first year that the river has been entirely dry since I 
 have been there. I think there has been as much water there this 
 year as any year since I have lived there. There have been 
 
 1407 more floods this year than common. 
 
 We cut the alfalfa about three times a year, and then I 
 pasture the land in the fall. I don’t know that cutting it in that 
 way and then pasturing it has a tendency to make it produce a 
 poorer crop. We all do that, and don’t consider that it hurts it. 
 When I put in # a new stand of alfalfa I don’t pasture it the 
 
 1408 first year. It takes it there now about three or four years be- 
 fore it gets to be good alfalfa. It has not been my experience 
 
 that after it once gets a good start, the first three or four years fol- 
 lowing that are the best years in the life of the alfalfa. I may be 
 mistaken, but don’t think I am on that. I presume that my alfalfa 
 this year will make two to two and a half tons to the acre. Lately 
 we have had pretty good rains this summer, but prior to that we 
 didn’t have. 
 
 I run four wind mills on my place. I have two on the bottom 
 and two up in the pasture — in the hills. There is one of these that 
 we don’t keep pumping hardly any of the time ; it is used for 
 
 1409 watering stock in the winter, and another one I presume we 
 run it six hours out of the twenty-four. We run it slowly, 
 
486 
 
 THE STATE OF KANSAS VS. 
 
 tied down, and irrigate a little garden patch, I think about one- 
 sixteenth of an acre. I pump water to irrigate. In the pastures I 
 run the pumps enough to water cattle. It depends upon how many 
 cattle I have there and how much rain lodges in the pond. The 
 other two of the four are right near the house. The others 
 
 1410 are — one is about two miles and the other about three miles 
 from the river. Practically all the farmers up and down the 
 
 river so far as I have seen have windmills running. They don’t 
 irrigate very much in garden patches. There is occasionally a man 
 who will water a little patch as I am doing. We don’t irrigate but 
 very little. 
 
 Redirect examination. 
 
 By Mr. Ashbaugh : 
 
 1411 This land had been in alfalfa for six or eight years before 
 I bought it. If the alfalfa lands were sufficiently saturated 
 
 the pasturing of the cattle as I pastured it would not do the alfalfa 
 any injury. (Objection.) 
 
 1412 George W. Reighard, Dodge City, Kansas. 
 
 Direct examination. 
 
 By Mr. Loomis : 
 
 I have lived in Dodge City since 1878. I first knew the Arkansas 
 valley in March, 1869. I was then engaged in freighting from Fort 
 Hayes 100 miles north of here, to Camp Supply, in what is Wood- 
 ward county, Oklahoma, now, which was then the Indian Territory. 
 
 We crossed the river about every twenty days. I quit freight- 
 1418 ing in 1878 and have lived in Dodge City ever since. During 
 the first years I was here after 1869 there was considerably 
 more water than there is now, all during the year, and in the same 
 seasons, about the last of May or first of June, we would have what 
 we called the June rise, and that would last until about the first of Sep- 
 tember. We always counted on high water in the summer. The June 
 rise would come as soon as the snow melted in* the mountains in the 
 spring, and sometimes it would come a little earlier. During 
 1414 the late years 1 don’t think we get any water from the melt- 
 ing of the snows in the mountains. This changed condition 
 began about twelve or fifteen years ago, I think. Along there. 
 During the early years, in the winter, along until it would get to the 
 rise, the bed of the river was generally covered with water pretty 
 well over, from bank to bank, and would be from two to three feet 
 deep along there. Hardly that then. A.bout two feet deep, say. It 
 would come up to the hubs of the wagon. From the time the June 
 rise subsided until the fall months there were a good many times 
 when it was pretty difficult to ford. It would come into the bed of 
 
THE STATE OF COLORADO ET AL. 
 
 487 
 
 the wagon. It would be about the same as during the winter. It 
 would stand from bank to bank and generally came up to the hubs 
 of the wagon. Sometimes the channel would be a little 
 
 1415 deeper, and at other places shallower. After 1874 we didn’t 
 cross the river as much as before. We crossed on bridges 
 
 then and didn’t notice it so much after that, but we crossed cattle a 
 good bit, and then about twelve or fifteen years ago, I think, the 
 river began to go dry. Along in September and October, after the 
 rise, the river would be tolerably low. That would be the lowest 
 time, about. Then when the weather got cooler more water came. 
 This continued up to the time they began to take the water out of the 
 river in ditches. During the last twelve years or thereabouts there 
 has been a good part of the time it has been dry, hardly any flow in 
 the river during the summer and fall months. This condition 
 
 1416 that I refer to has been from about 1890. Since that time 
 most of the summer there has been no flow. All that I have 
 
 noticed of the underflow has been nothing more than digging a well 
 for stock water. I dug a well on my farm about a mile and a half 
 east of Dodge City. I moved there in 1890. I dug a couple of wells 
 there then. I went just ten feet to water from the surface on the 
 second bottom. The water has dropped now and it is about 12 to 
 13 feet to water, I guess. We have a large pump there, an 8-inch 
 pump, that we used for irrigation for a while, and I know by that 
 pump what the flow of the water was. We measured it. I have 
 noticed that the water in the holes or sloughs in the bottom 
 
 1417 lands along the river valley rose and fell with the rise and 
 fall of the water in the river. (Objection.) When the river 
 
 rises the water rises back in the bottoms in holes. There is a slough 
 runs through my place about a quarter of a mile from the river, and 
 I have a hole scraped out in that. Our stock water there when the 
 river is up and there is plenty of water there. In the winter there 
 is some water there now by scraping down to the underflow. When 
 there is a rise in the river there is plenty of water in that hole ; 
 when the river lowers the water will run out. There will probably 
 be three or four feet of water. When the river goes down it will go 
 plumb dry sometimes. When I first went down there it was kind 
 of springy along that slough. We used to water cattle in 
 there. 
 
 1418 I have had experience in raising alfalfa for about thirteen 
 or fourteen years. I have some on the first and some on the 
 
 second bottoms. Probably we would get about three and a half tons 
 to the acre during the year as an average crop, and have 
 
 1419 about four cuttings. About 1890 to 1893 we used to get six 
 tons to the acre. About three or four years longer, after I 
 
 got my alfalfa started good, it was very heavy. It gradually fell off, 
 and now produces probably three and a half tons to the acre. On 
 the north side of my alfalfa land it is about ten or twelve feet to the 
 underflow, and on the south side about four feet. It is further now 
 to the underflow than it was in 1890 when I put in the alfalfa with 
 
488 
 
 THE STATE OF KANSAS VS. 
 
 the underflow two feet from the surface of the ground. (Objection.) 
 I attribute the falling off in my crop of alfalfa — one thing, I think 
 that the underflow is lower, and maybe pasturing it some, the 
 
 1420 ground getting settled down solider than it was. The lower- 
 ing of the underflow has affected it some, I think, and it is 
 
 deeper now to water. The successful production of alfalfa re- 
 quires a good deal of water, and when the underflow falls in my 
 judgment it affects the growth of alfalfa. 
 
 Cross-exam i n a ti on. 
 
 By Mr. Hayt : 
 
 We get the best growth of alfalfa on the north side here. The 
 distance to the water level or the ground water or the underflow on 
 the north side in the alfalfa fields is about four to five feet, 
 
 1421 and then farther back it runs about twelve feet, on the north 
 side. On the south side it is about three or four feet to 
 
 water. I haven’t land on both sides of the river. The alfalfa 
 grows on the land that is nearest to the river best. In my judg- 
 ment from two to four or six feet is the best water level below the 
 ground for a good crop of alfalfa. If it is lower, below six feet, the 
 crop will be lessened thereby. I think my land is about the best in 
 the county for the growing of alfalfa. When I get from five to six 
 tons an acre it is about the highest yield in the county. I have 
 never examined alfalfa to ascertain how far the roots would go for 
 water, but I have found the roots down about six feet, down 
 
 1422 about the sand. If the water was too close to the surface it 
 would destroy the alfalfa by rotting the roots, I believe, but I 
 
 don’t believe two feet would hurt it, at least it has not hurt mine. 
 1 attribute this falling off in crops some to the lowering of water 
 and some to the pasturing. We pasture during the winter months. 
 We cut our crops, and about the first of October we generall} 7 past- 
 ure it. We used to allow a large number of cattle to pasture on it 
 all winter. We don’t pasture it quite so heavily now as we used to. 
 That is very hurtful for alfalfa if we pasture it too short. It wouldn’t 
 hurt it if we didn’t pasture it too short. If we pasture several hun- 
 dred head of cattle after cutting four crops, that is pasturing it 
 pretty short if we leave them on too long ; that is, all winter. 
 
 1423 They ate whatever they could get of the growing crops, but 
 we fed them alfalfa too. I think the tramping down of the 
 
 ground by the cattle will let the water run off considerably instead 
 of going into the ground very much. The water runs off better 
 when the ground is pulverized or looser. 
 
 I said it was about twelve or fifteen years since the river began to 
 go dry — since about 1890. For a few years before that I didn’t 
 notice the falling off in the river so much. We were running cat- 
 tle in there. Since 1890 I have been livinir right along the banks 
 
THE STATE OF COLORADO ET AL. 
 
 489 
 
 for a year or so before 1890. I have been acquainted 
 
 1424 with the river since 1869, and I never saw it dry in those 
 early years. I was in the habit of crossing the river 
 
 about every twenty days for a number of years, summer and winter. 
 In 1874 they built the bridge across here at Dodge City, and we 
 didn’t cross the river that year and didn’t notice it so much. I 
 guess it is a fact that in the year 1874 the river was practically dry 
 along here at Dodge City and for nearly a hundred miles above for 
 several months during the season, but we watered our mules in the 
 river in 1874. I don’t think there was any other year that I saw it 
 dry prior to 1876, and I don’t recollect any prior to 1890. There 
 has been some water running this season in the river, about all the 
 season. We had a good big flow from some time in June up to the 
 present time, and there is quite a good body of water in 
 
 1425 the river to-da}L There was much more two weeks ago than 
 there is to-day. We had a rise in the last ten days. 
 
 In the early days when we were freighting we crossed the river here 
 at Dodge. We didn’tgo from here farther up the river into Colorado. 
 I have been in Colorado. We used to go up from about 1880 to 
 1885 to the Colorado line and get our cattle and bring them down 
 the river. I have been up in Denver and Pueblo in 1878. I don’t 
 believe I remember any irrigating along the line of the river above 
 in Colorado at that time. They were irrigating over there at the 
 Platte at that time, about Greeley. The first time I saw them irri- 
 gating on the Arkansas river with river water wasalong about 1886 
 or 1887. In 1879 I went to Pueblo and from there to Denver. I 
 don’t remember any irrigation on the Arkansas river at that time 
 in the vicinity of Pueblo and below there, though there may have 
 been. 
 
 1426 The wells that I dug in 1890 were about half a mile back 
 from the river. There was no depression or anything at that 
 
 point. In the old slough I dug some water holes. The first time I 
 moved down there there was water running in the slough there 
 in the fall and winter. This slough starts about half a mile west 
 of me and runs down toward the river and runs into the river. 
 It is about a mile long and a quarter of a mile back from the river. 
 When the river gets high the water overflows and runs out over 
 this slough. I think that was an old channel of the river at some 
 time. There were springs in there and we dug them deeper, 
 
 1427 and it was in these holes that we found that the water lowered 
 and raised at times. The pump that I used for irrigation 
 
 was about half a mile from the river, on the north side of my farm. 
 We went just ten feet in depth at first when we dug the well. We 
 used an eight inch pump, which we called an Infidel. It threw 
 about four gallons at a stroke when it was running right and made 
 about twenty-five to thirty strokes to the minute. We used to irri- 
 gate about half an acre with that pump, for a garden. We didn’t 
 use the water for any other purpose. We had another well for do- 
 
490 
 
 THE STATE OF KANSAS VS. 
 
 mestic and stock purposes. After we had pumped for some 
 
 1428 time the water ran down and kept sinking and my pump was 
 too short. We had to get a new pump. We lowered it and put 
 
 the spout higher up and put the pump down in the water lower. 
 
 Redirect examination. 
 
 By Mr. Loomis : 
 
 The water that came out in that slough came out of the ground — 
 out of the quicksand. It came from the underflow. (Objection.) 
 Of course when the river rises the water runs through that slough, 
 but there has water run in there when the river was not up. 
 
 1429 It is spring water. When we would have high water it 
 would run over above and come down through the slough, 
 
 and this would occur once a year maybe. 
 
 I have probably five or six acres on first bottom in alfalfa, and 
 have probably a hundred acres on second bottom. On the north 
 side it is about eleven or twelve feet from the surface of the ground 
 to the underflow and at other places it is about four feet, on the sec- 
 ond bottom. There isn’t very much difference in the depth to the 
 underflow between the first and second bottoms; the first bottoms 
 are almost level there and there is a gradual rise from the first to 
 the second bottom. 
 
 1430 The river is dry now pretty often in the summer time. 
 Taking it as it is now, there is not as much water as in the 
 
 earlier days at the same season. This is the 27th day of August, 
 1904. We use our pump for irrigation purposes during the sum- 
 mer season. We use it more in the spring in April, Ma}^ and June. 
 
 I spoke about not pasturing my alfalfa land as much in the late 
 3 r ears as formerly. I made this change about three years ago. My 
 alfalfa crop has fallen off during the last three years. It is not so 
 good. Prior to that time I was in the habit of pasturing my alfalfa 
 land for probably four or five or six years. I think the fall 
 
 1431 of the underflow has a good bit to do with the falling off in 
 alfalfa. (Objection.) I think that the falling off is the cause 
 
 of most of it. Of course the pasturing may have had something to 
 do with it. I haven’t pastured it for the past three years, but the 
 crop has fallen off notwithstanding that fact. 
 
 Recross-examination. 
 
 By Mr. Campbell : 
 
 1432 In respect to the extent of pasturing alfalfa, about two years 
 back and then probably for two or three years we pastured it 
 pretty heavily during the winter, about from the first of October to 
 the first of March. I think it kills it out if you pasture it too heaviW. 
 
THE STATIC OF COLORADO ET AL. 
 
 491 
 
 Redirect examination. 
 
 By Mr. Loomis : 
 
 I am chairman of the board of county commissioners and have 
 been a county commissioner for three years. I have probably pas- 
 tured two or three hundred head of cattle on about one hun- 
 1433 dred and sixty acres, and then we would feed them on alfalfa 
 awhile. We didn’t think at that time it would hurt it. We 
 found out it would be better not to pasture it too much. I attribute 
 the falling off of the crop prior to three years ago about all to the 
 fact of the lowering of the underflow. (Objection.) 
 
 Puicblo, Colorado, August 30-31, 1904. 
 
 1436 Mr. Ashbaugh, on behalf of the complainant, introduced 
 in evidence Complainant’s Exhibit A-6J. (Objection.) 
 
 Mr. Ashbaugh, on behalf of the complainant, also offered in evi- 
 dence Complainant’s Exhibit A-13. 
 
 1437 E. R. Chew, Pueblo, Colorado. 
 
 Direct examination. 
 
 By Mr. Loomis : 
 
 I have lived at Pueblo, Colorado, for nearly twenty-five years. I 
 am fifty-two years old, and am irrigation division engineer of irri : 
 gation division No 2. This is a State office in the State of Colorado, 
 created by statute, and I hold my commission by appoint- 
 1538 ment from the governor and draw my salary from the State 
 of Colorado. I have been irrigation division engineer for 
 nearly eight years. Prior to that time 1 had no connection with the 
 irrigation department of the State, but was a mining man and in the 
 real estate business, all over the western country, with headquarters 
 here in Puelo. I am about as thoroughly acquainted with the Ar- 
 kansas river, its tributaries, its valley and the water shed as a man 
 could be. As division engineer I have entire jurisdiction over this 
 division. Division No. 2 covers the Arkansas river and all 
 1439 its tributaries in the State of Colorado. Colorado is divided 
 into five divisions, and division No. 2 is divided into eleven 
 districts. As division engineer of division No. 2 I take charge of 
 the river and all its tributaries, regulating the amount of water 
 that goes into each canal and also into the reservoirs. No portion 
 of the Arkansas river or any of its tributaries is in any of the other 
 divisions. My duties are regulated by statute. Sometimes there 
 are regulations through the State engineer’s office, something that 
 doesn’t conflict with the statute. We make arrangements between 
 us. There are no other directions given me by any authoritative 
 source. I have entire jurisdiction of these matters, unless it comes 
 
492 
 
 THE STATE OF KANSAS VS, 
 
 to a trial before a court, a case of injunction or something of that 
 kind. 
 
 1440 I get at the amount of water that each company, person or 
 corporation has a right to or that it uses by its decree and 
 
 by the amount of water in the river at the time or in a stream that 
 is a tributary to the river, wherever its ditch or its canal may be 
 located. I mean by a decree the amount of water that is allowed 
 by court through its referee to a ditch claiming the priority. The 
 water is first appropriated by use upon the land and then the ap- 
 propriation is secured through the district courts in this State. 
 The appropriator must finally get a decree in the courts. These 
 decrees are first filed of record in the district clerk’s office and then 
 he certifies a copy up to me as division engineer and I keep those 
 certified copies in my office. 
 
 1441 In my official capacity I become acquainted with the dif- 
 ferent companies or persons or corporations that appropriate 
 
 water from the Arkansas river and its tributaries in certain cases or 
 to a certain extent. I never care who owns the canal ; it makes no 
 difference to me. I never try to find out who owns it. All I want 
 is the priority of the canal and its decreed amount of water, 
 
 1442 location, etc. Each of these canals is designated by name 
 and by number. The Fontaine Qui Bouille is a tributary of 
 
 the Arkansas here at Pueblo. These tributaries are all numbered 
 and many decrees are numbered. The number often indicates the 
 priori ty on a particular stream and not the priority in the whole 
 division. 
 
 • I don’t know of any appropriation of water out of the Arkansas 
 river or any of its tributaries made by the State of Colorado. I do 
 know of a proposed appropriation of water at or near Canyon 
 City. (Objection.) So far as the State is concerned, I suppose that 
 is a dead issue. It is not before the State now. When the enter- 
 prise was first undertaken it was for the State to appropriate so 
 much water and build a canal on the north side of the river 
 
 1443 to irrigate certain lands north and west of Canyon City. I 
 don’t remember the exact time, but it was a number of years 
 
 ago, when they first started the ditch, but it was some time in the 
 ’80’s. The head of the canal was near the head of the Grand canon of 
 the Arkansas, probably a couple of miles west of Canyon City, as near 
 as I can remember. They built several miles of canal up there, 
 something like three or four miles, but I am not positive as to the 
 number. It would not cost much to put the amount they did build 
 in good condition. I understand the legislature of Colorado 
 
 1444 turned it down as a State proposition. The legislature re- 
 fused to vote the necessary bonds or the convict labor to 
 
 build it. The legislature of Colorado had provided that this part 
 should be built through the convict labor at the State penitentiary 
 at Canyon City, and the convict labor was used for that purpose. 
 That is my understanding. The canal was not completed at all, in 
 fact hardly started. It was not built enough to run water iii it. If 
 
THk: STATE OE COLORADO ET AL. 
 
 493 
 
 any water was turned in it was not intentional. The ditch couldn’t 
 carry it. I don’t know the dimensions of that canal, but I presume 
 it was a canal that would carry three or four or five hundred feet of 
 water if properly constructed. I have never been on this canal; I 
 just saw it going over the railroad. 
 
 1445 A cubic foot of water, as we measure it in this State, is a 
 cubic foot per second of time. This canal in its windings 
 
 would probably run fifty miles from Canyon City to the Fountain. 
 
 I don’t think it was ever intended to cross the Fountain. There is 
 a large area of land under that canal; whether it is intended to 
 cover all of that I don’t know. It would cover forty or fifty thou- 
 sand acres of land. I don’t know whether I have in my office any 
 maps or profiles showing the proposed site of that canal. I never 
 looked. They should be in the State engineer’s office at Denver, if 
 there are any. The State had the work done, but who was in 
 
 1446 charge of it I don’t know, other than the State. I presume 
 it was done under the governor first, primarily, and of course 
 
 the State engineer would have it under his charge. I can’t state 
 when the act of the legislature was passed to build this canal. A 
 portion of the territory covered by this canal is covered by 
 small ditches from Beaver creek to Oil creek. There is no 
 other large canal that now takes the place of the proposed one 
 referred to, and that lies open for future development if 
 
 1447 they see fit. As to the cost of that, to have it completed 
 as proposed, I don’t presume it would cost the State 
 
 anything except the labor from the penitential^. I don’t know of 
 any money that would be paid out excepting for shooting material 
 and other supplies to build with. (Objection.) I can’t give anything 
 like a fair estimate as to what it would cost to complete the canal as 
 proposed. (Objection.) It would cost but very little, I presume, to 
 put the portion of the canal that was dug in repair and to build it 
 so that it could be used for irrigation purposes. It was rough work. 
 It would cost so much a yard. It is worth twenty or thirty cents a 
 yard for removing the dirt. I presume it could be put in order for 
 three or four thousand dollars for the first three miles. I 
 
 1448 don’t think there is any land under it at that length that 
 would be susceptible of water from it. I think it would have 
 
 to go two or three miles yet to get to land that could be irrigated by 
 water that could be taken from it. 
 
 I am acquainted with the Bessemer ditch. It is a canal that takes 
 out water about thirteen miles above Pueblo, on the south side of the 
 river. The Bessemer Ditch Company is a corporation organized for 
 the purpose of taking water out of the Arkansas river. (Ob- 
 
 1449 jection.) The head-gate of the Bessemer ditch is located on 
 section 33, 22-66. The canal is about 40 miles long, I guess, 
 and is about 20 feet across the top, and is built in a “ V” 
 
 1450 shape. The decreed appropriation of the Bessemer ditch is 
 364 cubic feet as shown by the records, (objection,) of the 
 
494 
 
 THE STATE OF KANSAS VS. 
 
 1451 date of* May 1st, 1887. The date of thedecreed appropriation 
 is regardless of the date when the decree was entered of record, 
 
 the decree relating back to the date of the appropriation. The 
 Bessemer ditch would irrigate about fifteen to twenty thousand 
 acres, and extends back at the farthest point eight or ten miles 
 from the Arkansas river, and it would average four or five miles 
 back from the river, approximately. It irrigates land only 
 
 1452 on the north side of the ditch. The land slopes somewhat 
 toward the river. I don’t know what the grade of that 
 
 ditch is. 
 
 The fall of the Arkansas river through the State of Colorado would 
 be from twenty-five to two hundred and fifty feet per mile, taking 
 it from Kansas to its source. I never had any occasion to measure 
 it or to test it. The grade of the Bessemer ditch is a good 
 
 1453 grade, something like a foot to the mile, but I don’t know ex- 
 actly what it is. The Bessemer ditch is the farthest big ditch 
 
 up the river toward Canyon City. 
 
 The next large ditch coming down the river, below Pueblo, is the 
 Colorado canal, commonly known as the Bob Creek canal. 
 
 1454 Its head-gate is located on section 10, 21-62. It runs in an 
 easterly direction on the north side of the river and is about 
 
 50 miles long and about 43 or 44 feet wide on the bottom, I think. 
 It is controlled by the Twin Lakes Land and Reservoir Company, 
 and its mean depth is about three feet. It has a decreed appropria- 
 tion of 756.28 cubic feet, of the date of June 9, 1890. This 
 
 1455 canal extends down into a reservoir located at the eastern end 
 of it. The reservoir has no decree, it simply has a filing in 
 
 the State engineer’s office, I presume. The water runs down this 
 canal into the reservoir. That reservoir is about two miles long by 
 about three quarters of a mile wide, and is used for furnish - 
 
 1456 ing water for beet lands near Sugar City, and is about two 
 miles from the town site. There are probably thirty thou- 
 sand acres of land under the Bob Creek canal and this reservoir. 
 I mean the land that is actually under the ditch, not the land that 
 could be actually cultivated by water from the ditch. I didn’t mean 
 the land that is actually irrigated from the ditch when I gave you 
 these estimates. I gave you the amount of lands that are under the 
 ditch. There is lots of land under the ditch that could not be cul- 
 tivated. A ditch is the main carrying canal, and a lateral is 
 
 1457 taken from the ditch to the cultivated lands, like the branch 
 of a tree. The reservoir appropriation is entirely different 
 from the appropriation of the canal. 
 
 1458 The Bob Creek canal at its farthest point would reach 
 back probably fourteen miles from the Arkansas river. The 
 land that is irrigated from it lies on the south side of the 
 
 1459 canal and between it and the river. The average distance of 
 this canal from the Arkansas river I think is about five or 
 six miles. 
 
THE STATE OF COLORADO ET AL. 
 
 495 
 
 1460 The next canal coming down the river is the Rocky Ford 
 Highline canal. Its head-gate is located on the south side of 
 the river in section 17, 21-61, twenty-four miles east of Pueblo. It 
 runs in a southeasterly direction and is about 75 miles long, and is 
 at its farthest point is about twenty miles back from the river, has a 
 fall of about one and a half feet to the mile, I should think, lias a 
 decreed capacity of 418 cubic feet, dated January 6, 1890, and its 
 carrying capacity would be 550 to 600 feet at the time of the decree. 
 This canal absorbed prior appropriations as follows : 
 
 Cubic feet. 
 
 1461 “ Enterprise,” 1867 2.5 
 
 “ Ballow Hill,” July 1, 1869 16 
 
 “ Ballow Hill,” July 1, 1885 30 
 
 “Allen,” March 11,1886 2 
 
 “Allen,” 1890 2.5 
 
 These appropriations last named are added to the appropriation 
 of 418 cubic feet of June 6, 1890, provided there is water for 
 
 1462 that date. By absorption I mean when a canal purchases 
 the water of another canal it is changed by statute through 
 
 the district court in the State engineer’s office and then the ditch 
 
 selling the water is abandoned and the water is carried entirely 
 
 through the ditch that purchases it. It is a mere matter of pur- 
 chase. 
 
 1463 We have about twenty-five thousand acres irrigated from 
 the Highline canal on the north side of it. The canal is on 
 
 the high lands. The canal perhaps reaches a point at its greatest 
 
 altitude of 75 or 100 feet above the river at a corresponding point, 
 maybe more. I don’t know. 
 
 1465 The next canal we find in coming down the river is the 
 Oxford Farmers’ canal. It is on the south side of the Ar- 
 kansas river, its head-gate being on section 31, 21-60. It is 
 
 1466 about fifteen miles long, is fifteen feet wide across the top, 
 and varies in depth from two to four feet, extending back 
 
 from the river at its farthest point probably six or seven miles, with 
 a grade of one and a half feet to the mile. It has a decreed 
 
 1467 appropriation of 116 cubic feet, dated February 26, 1887. The 
 Oxford Farmers’ canal absorbed an appropriation of 14 cubic 
 
 feet made by the Enterprise ditch in the fall of 1867. There are be- 
 tween five and six thousand acres, I presume, under this canal. 
 
 1468 The next canal coming down the river is the Otero canal. 
 Its head-gate is located on section 17, 22-59. It is about 
 
 1469 forty miles long, about ten feet wide on top, four feet deep, 
 reaches back at the farthest point about five miles from the 
 river, and has a decreed appropriation of 123 cubic feet dated 
 
 1470 March 3, 1890. I should — there are between eight and ten 
 thousand acres of land irrigated from it. 
 
 The next canal coming down the river is the Catlin canal. 
 
496 
 
 TRE STATE OF KANSAS VS. 
 
 1471 The head-gate is on section 7, 22-59. It is about 35 miles 
 long, 25 feet wide, and about five feet deep, with a grade of 
 
 one and a half, and has a decreed appropriation of 248 cubic feet, 
 dated December 3, 1884, (objection), and a further appropria- 
 
 1472 tion of 97 feet, dated November 14, 1887. There are about 
 twenty thousand acres of land under this canal, and about 
 
 1473 ninety per cent, of it can be irrigated. The greater portion 
 of this canal is about four and a half to five miles from the 
 
 river. 
 
 The next canal coming down the river is the Laguna or Lake 
 canal. It is located ou the north side of the river, its head- 
 
 1474 gate being on section 24, 22-58, about fifty miles below 
 Pueblo. It is about twenty-five miles long, about twenty- 
 
 five feet wide on top, and about six feet deep, and has a decreed ap- 
 propriation of 155 cubic feet, dated September 25, 1889. There is 
 one reservoir into which this canal drains. The reservoir 
 
 1475 has no decree; it has simply been filed. There are about 
 eighteen thousand acres, I think, under the Laguna canal, 
 and about ten or twelve thousand acres can be irrigated from it. 
 
 1476 The next canal coming down the river is the Pocky Ford 
 ditch. It is on the south side of the river and its head-gate is 
 
 located on section 30, 22-57. It is about fifteen miles long, about 
 fifteen feet wide at the top, and twelve to fourteen feet wide at the 
 bottom, and about four feet deep, and has a decreed appropriation 
 of 111.76 cubic feet, dated May 15, 1874. I presume there are 
 about seven or eight thousand acres of land under this canal, and 
 about ninety-five per cent, of it can be irrigated from it. 
 
 1477 The next canal coming down the river is known as the 
 Fort Lyon canal, and is operated by the Arkansas River 
 
 Land, Reservoir and Canal Company. It is on the north side of 
 the river, and its head-gate is located on section 32,23-55. It is 110 
 miles long, 60 feet wide, and the depth varies from four to six feet, 
 and at the farthest point is probably fifteen miles back from the 
 river, and its greatest altitude above the river would not be perhaps 
 over thirty feet. It has a decre-d appropriation of 164.64 cubic feet, 
 dated April 15, 1884, and a further appropriation of 597.16 cubic 
 feet, dated March 1st, 1887. I presume there are about forty 
 
 1478 thousand acres of land under this ditch, and seventy-five per 
 cent, of it can be irrigated. I think the Fort Lvon canal 
 
 1479 was never built its surveyed length. I think it is flumed across 
 Horse creek and goes as far east as the Big Sandy. The 
 
 average location of the Fort Lyon canal would be twelve or fifteen 
 miles back from the Arkansas river. I don’t know exactly how far 
 it is. 
 
 Coming down the Arkansas river, the next canal of any conse- 
 quence is the Amity. It is on the north side of the river. Its 
 head-gate is located on section 36, 22-48, about eight miles 
 
 1480 above Lamar. It is about fifty miles long, twenty feet wide 
 at the top, and six feet deep. At the farthest point it reaches 
 
I’HE STATIC OB' COLORADO El* At. 
 
 497 
 
 about ten or twelve miles back from the river, with an altitude above 
 the river of probably fifteen or twenty feet. It has a decreed ap- 
 propriation of 283.5 cubic feet, dated February 21, 1887. There are 
 about sixteen or eighteen thousand acres under this canal, and about 
 eighty-five per cent, of it can be irrigated. 
 
 The next canal coming down the river is the Lamar canal. It is 
 on the south side of the river. Its head-gate is located on 
 
 1481 section 29, 22-46, two or three miles below Lamar. It is 
 about thirty miles long, about fifteen feet wide, and about 
 
 three to three and a half feet deep. It has decreed appropriations 
 as follows (objection) : 
 
 15.75 cubic feet, dated November 30, 1875 ; 
 
 72.09 cubic feet, dated November 4, 1886; 
 
 13.64 cubic feet, dated April 16, 1887 ; 
 
 11.7 cubic feet, dated September 11, 1889 ; 
 
 184.27 cubic feet, dated July 6, 1890. 
 
 At its farthest point this canal is six or seven miles back from 
 the river, with an altitude above the river of ten or fifteen feet. 
 There are about fifteen thousand acres of land under this ditch, and 
 over ninety per cent, of it can be irrigated from it. 
 
 1482 The next ditch coming down the river is the Graham ditch, 
 about eight or ten miles below Lamar. It is on the south 
 
 side of the river. Its head-gate is located on section 25, 22-45. It 
 is about seven miles long, is between six and eight feet wide, and is 
 from two to three feet deep, and has a decreed appropriation of sixty- 
 one feet, dated August 24, 1891. (Objection.) It is two or three 
 miles back from the river, and there are three or four thousand 
 acres of land under this ditch, and perhaps ninety to ninety-five per 
 cent, of it can be irrigated. 
 
 1483 Coming down the river the next canal is the Buffalo Creek 
 ditch. It is on the north side of the river. The head-gate is 
 
 about eighteen miles below Lamar and twelve miles from the Kansas- 
 Colorado State line, and is located on section 31, 22-43. This canal 
 is about eight miles long, is about eight or ten feet wide, and two or 
 three feet deep. It has a decreed appropriation of 67.5 cubic 
 
 1484 feet, dated January 29, 1885. (Objection.) It goes back not 
 over four miles from the river, and there are probably four 
 
 thousand acres of land under the ditch and probably eighty per 
 cent, of it can be irrigated. 
 
 All of these canals that I have described derive their water 
 
 1485 from the Arkansas river and its tributaries. The total 
 amount of water decreed to the ditches that I have been 
 
 questioned about amounts to 3997.31 cubic feet per second of time. 
 The total amount of land that could be irrigated from these several 
 ditches amounts to 318,504 acres. This is not the land that is irri- 
 gated. The amount that is actually irrigated by these several 
 
 1486 ditches referred to was 200,520 acres. These figures are taken 
 from the reports of the district water commissioners of a year 
 
 32 — 7 
 
498 
 
 THE STATE OE KANSAS VS. 
 
 ago. I think that the number of acres has not increased since that 
 time, nor materially decreased. 
 
 There are other appropriations that have not been specifically 
 mentioned by me. I have an official record of the amount of all 
 the decreed appropriations of the Arkansas river and its tribu- 
 taries and the total amount is 10,248.56 cubic feet per second of 
 ti me. 
 
 1487 There are appropriations of water from the Arkansas river 
 and its tributaries in several ditches that have been filed upon 
 
 that have no decrees — very small ones. They get water when they 
 can get flood water, that is, surplus water. We don’t recognize those 
 ditches only as “outlaws ” until there is a surplus of water or until 
 all decrees are supplied. 
 
 I have an official record of the amount of water filed upon for 
 reservoir purposes, the total amount being 1,139,490,773 cubic feet. 
 The difference between the total amount of the several ditches that 
 I have specifically mentioned, and the total amount of 10,248 cubic 
 feet, is the amount that has been appropriated by other 
 
 1488 ditches that I have not described. These other ditches are 
 small ditches and they run from one- tenth of a cubic foot per 
 
 second to probably one hundred cubic feet per second. Very few 
 of them would have an appropriation as large as a hundred cubic 
 feet per second. Perhaps eighty per cent, of them would be under 
 ten cubic feet per second. Most of them are local, individual, per- 
 sonal appropriations made by farmers. There are very few of them 
 upon the river proper ; most of them are from the tributaries in 
 those various counties through which the tributaries run. There 
 are but few ditches on the main river. These other water appro- 
 priations are as a general thing owned and used by the own- 
 
 1489 ers of the land irrigated. The appropriations spoken of by 
 me as amounting to 3,997.31 cubic feet per second are used 
 
 by the owners of the water rights. You take a canal that is owned 
 by a stock company and they sell land with water and the man who 
 buys that land buys so much water and he appropriates that to his 
 land. The company don’t use it, but he uses it, and that is the way 
 the water is used from all these corporate ditches. There are other 
 kinds of ditches than corporate ditches, that is, individual 
 
 1491 ditches. To what extent the ditcli companies that I have re- 
 ferred to sell water to any persons desiring to purchase the 
 
 same I do not know personally; that is a question that I can only 
 answer by hearsay. My duties end at the head-gate, and as 1 said 
 yesterday, I never inquire what a ditch is doing or what a company 
 is doing with the water, unless they waste it. (Objection.) Whether 
 a person could get water on land that he has not bought from one 
 of these ditch companies depends entirely on his location. If he 
 couldn’t buy it from the company he might not be able to 
 
 1492 get it at all. If they had w T ater to sell he might buy it from 
 the company. (Objection.) I presume some of those ditch 
 
THE STATIC OF COLORADO ET AL. 
 
 499 
 
 companies are in business for that purpose, but I don’t know bow 
 they conduct that business. (Objection.) 
 
 In the State of Colorado below the Grand Canon there are between 
 twenty-five and thirty tributaries of the Arkansas river. Some of 
 these are Grape creek, Hardscrabble creek, Four-tnile or Oil creek, 
 Beaver Rock creek, Fountain, St. Charles, Huerfano, the Apishipa, 
 Ternpe, Horse creek, the Purgatoire and the Big Sandy. These are 
 nearly all wet streams, and by the . term “ wet stream ” we mean one 
 that furnishes a continuous flow of some amount to the river. 
 
 1493 The records of the flow of the Arkansas river in the State of 
 Colorado are to be found in the State engineer’s office. Some 
 
 records are kept here at Pueblo by a gauge in the river. There is 
 an ordinary gauge here, and the gauge is read every morning. It 
 shows the height of the river. When we see the gauge we make 
 computations showing how many feet of water there are in the river. 
 There are measurements made of the flow of the river at Granite, 
 Salida, Cation City, Pueblo, at the Highline dam, at the Oxford 
 Farmers’ dam, at the Rocky Ford bridge, at the Fort Lyon 
 
 1494 dam and at the Colorado-Kansas dam. These records are 
 made by parties appointed by the State engineer and they 
 
 make separate reports to him at his office. It is only in the last 
 eight years that there has been any general report made at all or 
 any very accurate report kept, but they have information of 
 
 1495 some kind as to the flow of the river. We report the flood 
 waters, and the amount, of the tributaries. This is all that 
 
 we make a note of, and that has not been the general practice until 
 the last few years. 
 
 My official duties are to regulate the flow of water into each canal 
 according to the amount in the river and their decreed priorities. 
 If there is water enough in the river to supply each decreed priority 
 it gets the full amount if it wants it. If it is not enough to supply 
 each of the decreed priorities then I give it to them according to 
 their decrees ; that is, according to the age of the ditch. If there is 
 not enough in the river to supply more than one of these ditches 
 that I have referred to, then I give it to that one. If there was not 
 enough in the river to give it its full decreed priorities, then it 
 would get what was in the river. It would take it all. If these 
 ditches that have been specially referred to should want the water 
 of their decreed appropriations and there should not be that amount 
 in the river, then they would take the whole flow of the river, 
 
 1496 if they were entitled to it. There might be older ditches on 
 the river than these referred to that would take amounts that 
 
 would decrease that very much, but the result of our distribution 
 would be to take the whole flow of the river. We can’t do it because 
 there is a large amount of seepage that comes in below here, that 
 runs into Kansas, that we can’t get hold of. We would get hold of 
 it if we could. 
 
 The dams at the head-gates of the different ditches referred to are 
 sometimes built of brush, dirt, rocks and weeds scraped together to 
 
TtiE STATIC 01* liANSA^ vL 
 
 make a temporary dam and sand mixed in it to hold the Watef. 
 Sometimes by piling sheets driven down with the piles, sometimes 
 by masonry and sometimes by concrete or cement work. The only 
 dam that is wholly or in part built of cement is the Amity. It was 
 constructed by sinking to a certain depth down into the sand. I 
 don’t think they ever went to bed rock but one place. And then 
 poring in cement. It was not a solid dam across the river, of con- 
 crete. There were sections that were piling, I think. I don’t think 
 the whole width of it was concrete. There were only sec- 
 
 1497 tions of it, and heavy pillars. The dam is across the bed of 
 the river. There is a sluice gate in the canal. The sluice 
 
 gate was not constructed around the dam or at either end of it. 
 The dams are built so that the water can run over them. There 
 wouldn’t be any need of a sluicegate if the dam was properly con- 
 structed. The surplus water would all pass over it without diffi- 
 culty. They are high enough to hold the floods. Whether the 
 Amity dam was constructed so that at the ordinary flow of the river 
 any of the water of the river passed around, over or through the 
 dam is a difficult question to answer. There is no ordinary flow in 
 this river. During the dry season of the year there wouldn’t be 
 any water down there at all. If there was any water flowing in the 
 river there wouldn’t any of that water pass over, through or around 
 the Amity dam if the Amity could take it. The head-gate of the 
 Amity canal is located very close to the dam, and just below 
 
 1498 it. The ditch connects with the water that is dammed up 
 by the construction of the dam. When the whole amount 
 
 of the flow of the river at low water at that place is not more than 
 the Amity canal can carry then there is none of it will goby unless 
 we order it for ditches below ; but if there is only what the Amity 
 canal priority calls for it will never get by. The dam is so con- 
 structed that the amount of water flowing down to the dam could 
 all flow into the ditch if there wasn’t any more than the ditch could 
 carry. 
 
 The sluice gate is built near the ditch and is about eight 
 
 1499 hundred or a thousand feet below the dam. Its purpose is 
 to turn out the surplus water and keep the ditch clean. The 
 
 Fort Lyon ditch has a pile dam extending entirely across the river. 
 It is so constructed that water can go over it. When there is only 
 such an amount of water in the river as the canal would carry we 
 do not allow the whole of it to go into the canal unless it is entitled 
 to it. If the canal was entitled to it then it would take it, but that 
 is not the case, because there are water priorities below it. The 
 Fort Lyon canal is so constructed that it can take the total 
 
 1500 flow of the river provided there is not too much water in the 
 river. There are times when the Fort Lyon canal could take 
 
 the whole of it when the river is low. At the ordinary season when 
 there is not any particularly high water this Fort Lyon canal would 
 take all the flow at that place about one-fourth of the year, provided 
 it was entitled to it. When there is simply an ordinary flow of 
 
THE STATE OF COLORADO ET AL. 
 
 501 
 
 water in the river the Amity canal can take the whole flow of the 
 river that would reach her point for probably a quarter of the year, 
 provided she was entitled to it. That portion of the year would 
 probably be the winter months. Sometimes in the summer you 
 would have to mix it up a little. The dry portion of the year is 
 sometimes in the spring: and sometimes in the fall and some- 
 
 1501 times in the winter, and there is no average. It occurs very 
 frequently that when there is no excess water the Fort Lyon 
 
 and the Amity ditches could take the whole flow of the river through 
 the months of August, September and October, provided they were 
 entitled to it. After other priorities are satisfied these two canals 
 could take all the flow of the river under the conditions stated dur- 
 ing the months of August, September and October. The total 
 amount of water that flows in the river would not be indicated at 
 all by the amount of water that these two ditches carry under such 
 conditions. 
 
 All the other ditches that I have mentioned have pile dams. The 
 dam at the Highline head-gate is a smaller one, not quite so high, 
 but the Bob Creek dam is built about eighteen inches or two feet 
 high above the bed of the creek. They are all clear across the 
 
 1502 river. There are no sluice gates built anywhere in the dams, 
 but the surface water goes over the dam. The water at a low 
 
 stage passes over the dams, and the damsare not built high enough to 
 prevent low water from passing over them. The object of these 
 
 1503 dams is to raise the bed of the river so as to throw the water 
 into the ditch. During the dry season when the flow of the 
 
 river is low these dams throw the whole flow of the river into the 
 ditch, if the ditch is entitled to have it. It can carry the amount 
 of water that is in the river. In certain places during the dry season 
 of the year when there is no flood or freshet, when these particular 
 ditches have a right to the water, there is some water goes down the 
 river immediately below the dam. This is where the seepage rises 
 very strong and sometimes there is a better flow below the dam than 
 above it. This seepage is return water to the river from the high 
 waters and even from low water. The river bottoms when there 
 is water in it are filled full of water, and when the water decreases 
 that water gradually goes back to the river or to where it can make 
 its escape again on the surface. That forms a seepage. I presume 
 the bottom or channel of the Arkansas river through the eastern 
 portion of the State is composed of rock. The sand rests on the bed 
 of the river, on the rock, and this gravel is all full of water. 
 
 1504 I should think this sand is twenty feet deep in some places, 
 but I couldn’t tell you anything about it definitely. (Objec- 
 tion.) I don’t believe there is a dam in the river but somewhere 
 within a few hundred feet of the dam there is quite a little return 
 of seepage to the river. The dam was not constructed so as to pre- 
 vent that. The dams are constructed for the purpose of stopping a 
 sufficient amount of water to supply the decree of that particular 
 ditch, and they are so constructed as to take the whole of the river 
 
502 
 
 THE STATE OF KANSAS VS. 
 
 provided the ditch is entitled to that amount of flow. It is 
 
 1505 true that during the dry seasons there is a dry portion of the 
 river bed below the dams — dry on the surface, a foot or so 
 
 maybe. The majority of the ditches between Cation City and the 
 Kansas State line have got some kind of a construction even if the}' 
 simply take a scraper and scrape up the sand and make what they 
 call a sand dam. These sand dams are constructed for the same 
 purpose as the others — to throw the water into the ditches. These 
 sand dams are probably constructed ten or fifteen times a year. It 
 is just simply like taking a plow and running a furrow across 
 
 1506 the river. 
 
 Besides the dams at the Amity and Fort Lyon head-gates 
 there is the dam at the Colorado-and-Kansas, the Oxford Farmers’, 
 the Highline, the Bob Creek, the Bessemer, and there is one at Canon 
 City. The Arkansas river and its tributaries get their supply of 
 water from two sources — the rainfall and the snow in the mountains. 
 By the mountains I mean the Rocky mountains — the Green Horn, 
 the Mosquito and the main range — the main divide. 
 
 The deepest place that I have seen the rock under the bed of the 
 river was where it was twenty-two feet deep. 
 
 1507 There are wells along the Arkansas river through this 
 part of Colorado. They get water on the first bench from 
 
 three feet down, and upon the second bench from ten feet down. 
 The first bench sometimes extends back from the river a hun- 
 dred yards and sometimes a mile. 
 
 The first bottoms before the soil was broken up I presume had 
 grass and weeds and vines and trees and berries and various other 
 things of that character upon them. The sage brush is generally on 
 the dry land. It is on the uplands. The uplands are covered with 
 grass and sage brush, musquite and cactus. 
 
 1508 How far back the second bench extends depends entirety 
 upon the formation of the country. Sometimes it is three 
 
 or four miles. 
 
 The amount of land adjoining the Arkansas river in the State of 
 Colorado that without irrigation or without any cultivation that 
 originally grew any vegetation that could be used or that was profit- 
 able would depend entirely upon the season and upon the location 
 and whether the grass was there in the first place or not. It might 
 have been covered with sage brush so that the grass could not pos- 
 sibly get in there at all. Take the places where it is clear meadow,, 
 and if we have a good season it would produce ha}'. Speak- 
 
 1509 ing of the lands that were not under cultivation, there was 
 but little of it that could produce grass tall enough to cut,. 
 
 but you couldn’t cut it without clearing the brush and stuff off of it.. 
 Aou couldn’t call it hay land. 
 
 You would go anywhere from ten to twenty-five feet before you 
 would get water on the second bench. That has changed materially 
 in the last few years. Back beyond the second bench it is practi- 
 cally the same thing, only a little higher. 
 
THE STATIC OF COLORADO ET AL. 
 
 503 
 
 Speaking of the amount of water that the several ditches es- 
 pecially referred to above actually use for the purposes of irrigation, 
 in the ordinary season they use all they can get. That 
 
 1510 amount is limited by the season and by their decrees. Some- 
 times the season will not permit them to have any water at 
 
 all, hardly, only a very limited amount, sometimes the season 
 will give them their full decrees. There have been seasons that 
 would give them the full amount of their decreed appropriations. 
 This occurs at some season almost every year, but does not con- 
 tinue throughout the whole of the year. It exists whenever the 
 rainy season happens to occur. It has occurred in April, May, 
 June, July and August and during that particular period they 
 could have the amount of water decreed to them. During the months 
 of August, September, October, November and December there is not 
 enough water in the river to give each of these parties the full 
 amount decreed if the ditches that have older decrees demand their 
 water. There would not be a sufficient amount to supply their de- 
 cree. These ditches referred to use up to the amount of the decreed 
 appropriation when it is in the river if they need it. During the 
 last few years these ditches referred to have not been getting 
 
 1511 as much water as they wanted. There is great difficulty in 
 distributing the water because the water is not in the river 
 
 to give them, and when there is no water in the river everybody 
 wants what is there and we can’t let them have it. Then I close 
 the gates down and stop them from taking it and give it to those it 
 is decreed to or to the owners of the priorities. During the last eight 
 years there have been some portions of the year that they were not 
 getting the full amount of their decreed appropriations and the 
 amounts they desired. This has frequently occurred at some time 
 during the year. One year it went for a whole season pretty nearly. 
 It went for three or four months at a time and sometimes for 
 
 1512 thirty or sixty or ninety days. The year I spoke of was the 
 year 1901, or perhaps 1902. It was particularly a dry year. 
 
 As to the proportion of the water that each of the ditches got, if there 
 was water at all they would get their pro rata; if there wasn’t water 
 they wouldn’t get an} 7 . There was some time during the season 
 they would get from one-half to one-fourth or three-teuths of the 
 amount they wanted. During the season they got variable amounts, 
 and sometimes they didn’t get any. There may have been other 
 years nearly as dry as the year 1901. 1896 was a dry year. 1897 
 
 was comparatively dry. I don’t think there has been more than 
 two really good years in the last eight years when we had 
 
 1513 plenty of water. There are times always when some of the 
 ditches are not getting any water. There has been a con- 
 siderable portion of those six years when some of them were not get- 
 ting any and others were not getting all they wanted. 
 
 Q. Then as a result the whole of these ditches do not get as much 
 water as they want, as a general thing? 
 
 A. They do on the whole, you might say, but not every day in 
 
504 
 
 THE STATE OF KANSAS VS. 
 
 the year. They get enough to make their crops. That is what they 
 are after. But they don’t get it always when they want it. 
 
 If there was more water the ditches would use more. The ditches 
 use the most water in the spring and summer, until the first of 
 September or even after. It. depends upon their crops. We use 
 water all winter for irrigation. Most any crop can be in- 
 
 1514 creased by using water during the winter. That is coming 
 to he a recognized use of water during the winter season as 
 
 well as during the summer season. If they had more water that 
 wouldn’t mean more land under cultivation. The use of water dur- 
 ing the winter season is growing. There isn’t any more land being 
 put under cultivation, but the people generally get into the idea of 
 using it for better crops. The months when there is the greatest 
 demand for water I presume are April and May ; that is in the seed 
 time. The maturing season of the crop is not as bad as it is in start- 
 ing a crop. Take some crops and they demand the water when 
 they are maturing, but the main thing is to get them started. All 
 crops demand water during the maturing season. August and Sep- 
 tember is the maturing season for cantaloupes and melons and fruits 
 and sugar beets. Alfalfa of course cures three times a year. They 
 generally try to irrigate alfalfa twice during the crop. There 
 
 1515 are three or four irrigations for the melon crop. I don’t know 
 exactly. Surgar beets can be made with three or four irriga- 
 tions. The sugar beet and melon industry in the eastern part of 
 Colorado is very extensive. Beet sugar factories are located at 
 Rocky Ford and Sugar City. They are large industries and the 
 sugar beets for these factories are grown along the Arkansas river. 
 The cantaloupe industry has become very prosperous, permanent and 
 extensive. Alfalfa is also grown along the river to a very great ex- 
 tent. At certain times and when the river is low the growth of these 
 crops under these ditches practically absorbes the total flow of the 
 river. The river is liable to be low in anv month or any day in the 
 
 year. There is no average about that. 
 
 1516 There is such a thing as a June rise. It may come this 
 June but may not come next June and may not have been 
 
 last June. It is not called a June rise in this country; we call it a 
 rainy season, and it is liable to start at any time. We sometimes 
 have more water during the season of the year when the snows are 
 melting than when the snows are not melting. The snows begin to 
 melt in March and they continue sometimes until the first of June. 
 The melting of the snows is very irregular, depending on the sea- 
 son, whether it is hot or cold. 
 
 The reports in the State engineer’s office show the exact amount 
 of water used by the particular ditches referred to. 
 
 We sometimes have a dry season in the spring, we often have it 
 in the summer months, we often have it in the winter months. 
 
 1517 I presume it is more liable to come in the summer months 
 than in the spring. We used to think the rainy season began 
 
 in May and June, but now we don’t know when it begins, only when 
 
THE STATE OF COLORADO ET AL. 
 
 505 
 
 it comes. It has been all the year round this year. This has been 
 a very wet season. During the last eight years the dry season of the 
 year has varied ; one season we would hardly have moisture enough 
 to bring out the seed. We didn’t have it until it began to rain. 
 Again, our dry season would be after our spring rains, in the sum- 
 mer. It is impossible to locate a dry season in Colorado as a per- 
 manent thing. It is as liable to be one season as another, and of 
 course the rainy seasons the same wav. The dry seasons of the year 
 is when we want the most water for irrigation. The hot season 
 here is July and August, and once in a while September is as hot as 
 either one. 
 
 1518 In regard to the construction of those ditches, the decree 
 is supposed to date when the work was begun. Most of these 
 
 ditches were completed within a year. I think it would be safe to 
 say that they were all completed within two years at least. I don’t 
 know, though. It is just simply a guess. 
 
 1519 In an official way I have been acquainted with the Ar- 
 kansas river and its tributaries which receive water from the 
 
 snow which melts in the Rocky mountains for the last eight years; 
 in an unofficial way for twenty-five years. I am familiar in a gen- 
 eral way with the snowfall in the mountains during the last twenty- 
 five years. The snowfall during the last ten years I presume would 
 average with the snowfall for the fifteen years preceding it. I 
 don’t see any difference. Some years it is very heavy and others 
 light. My best judgment would be that the last ten years would 
 be about an average with the preceding fifteen years. During the 
 last year in certain sections the snowfall has been heavy During 
 this year the snow fall has been greater than last year. I 
 
 1520 couldn’t say that it has been greater this year than for a 
 number of years last past. The average amount of snow fall 
 
 last year was considerably larger than the previous year, and I 
 think that was about as much as the preceding year. There was 
 no unusual amount fell in any one section. Either two or three 
 years ago we had a ver}^ heavy snow fall. I don’t try to remember 
 those things; there are too many of them. 
 
 Cross-examination. 
 
 By Mr. Hayt : 
 
 1521 I received niv appointment as irrigation division engineer 
 from the governor, but after receiving the appointment the 
 
 governor exercises no supervison over my office. From the time I 
 was installed in office I have made my reports to the State engineer. 
 In case of a dispute with reference to the distribution of water, ap- 
 peals lie from my decision to the State engineer, and my vouchers 
 are approved by the State engineer and the original records made 
 in my office are forwarded to the State engineer. 
 
 In speaking of the grade of these ditches and their elevation in 
 ray examination in chief, my answers were simply a mere guess 
 
506 
 
 THE STATE OF KANSAS VS. 
 
 with reference to that — to the grade and the elevation of the ditches. 
 I know the amount of land actually irrigated during any season 
 from these ditches bv the reports from the water commission- 
 
 1522 ers to me. In making the statements in my direct examina- 
 tion I didn’t have those reports before me. I made an esti- 
 mate. I have simply given my best recollection as to the amount 
 of lands irrigated by these various ditches. Since I testified with 
 regard to the grade of the river, I have had opportunity to look over 
 my estimates, and I find that my estimate of the grade from Kan- 
 sas to La Junta was 5J feet to the mile ; from La Junta to Pueblo 
 it was 8 feet to the mile ; from Pueblo to Salida it was 24f feet to 
 to the mile ; from Salida to Leadville 50 feet to the mile ; and from 
 Leadville to the source of the stream it was 232 feet to the mile. 
 
 There are ditches along the Arkansas river with appropria- 
 
 1523 tions dating back to 1859 or 1860. The earliest decreed ap- 
 propriation that I can now recall is dated some time in the 
 
 spring of 1859, four ditches, — the Hicklin A, Hicklin B, Hicklin C 
 and Hicklin D, in district No. 15 on the Green Horn river. 
 
 As to the other appropriations from the Fountain river and other 
 tributaries of the Arkansas, there is the Toof, with an appropriation 
 of February, 1860, and then in April, 1861, there are the Warrant, 
 Barnes and Baxter ditches. There are a great many 1861 ditches 
 in district No. 14. There is the Arkansas Valley in 1861, and 
 the Excelsior in 1861, and a large number in 1862, and in 1863 
 probably several hundred. I cannot at this time state the amount 
 of water appropriated from the Arkansas river and its tributaries 
 prior to the first day of January, 1862. Prior to January 1, 
 
 1524 1862, in district No. 10 there are nine or ten ditches, and a 
 great many of them in district No. — . I cannot state at this 
 
 time definitely the amount of appropriations made from the Ar- 
 kansas river and its tributaries during any particular year. I do 
 not remember of any ditch by the name of the El Paso Town Co. 
 ditch. I think it was a Kansas corporation, but I don’t know. 
 
 The headgate of the Buffalo ditch is on the north bank of 
 
 1525 the Arkansas river, about 18 miles from Lamar, Colorado. 
 The largest portion of the water supplied to that ditch is 
 
 seepage water. By seepage water I mean water that has seeped 
 back towards the river after having once beer, applied to irrigation. 
 In my official capacity I have had nothing to do with the distribu- 
 tion of the water between the claimants after it has been delivered 
 to the ditches. Some of these ditches that have been termed here 
 the larger ditches are what are commonly known as mutual ditches, 
 more than half of them, I should think, and under these mutual 
 ditches the water belongs to the stockholders of the ditch, and the 
 owners of the right to use the water constitute the stockholders of 
 the ditch. 
 
 All the ditches have waste- ways or sluice-gates near the 
 
 1526 dams so that there is a chance for the water to escape and go 
 down the river, not only over the dams as I have testified but 
 
THE STATE OF COLORADO ET AL. 
 
 507 
 
 by the sluice-ways provided for each d itch . None of the ditches in 
 this water division take the water beyond lands drained by the 
 Arkansas river and its tributaries, and the seepage water, whatever 
 there may be, returns to the Arkansas river or its tributaries. 
 
 As to my duties in the prevention of the waste of water, I will 
 say that the water commissioners are instructed when a canal or 
 ditch takes water and is not using that water beneficially to close 
 out at the headgate the amount of water he estimates is being 
 wasted. That water goes back into the river again. So far as I am 
 able lam careful to see that none of this water is wasted but that it 
 is all applied to beneficial use. 
 
 1527 In the winter season the water is used for direct irrigation. 
 This water acts in a measure as a storage for the coming sea- 
 son. If the land is well wetted down in the fall of the year it aids 
 in the growing of crops during the next season. It makes a marked 
 difference, and to some extent it is returning the water by way of 
 seepage to the river during the next season. 
 
 In speaking of the rainy season and of high water in the river, I 
 mean bv that that I look for high water during the rainy season 
 more than at any other time or from any other source. The rainy 
 season is very indefinite. It may come as early as March and some- 
 times as late as September or October and sometimes not at all. 
 
 In testifying in my examination in chief as to when work 
 
 1528 was commenced on these different ditches, I was speaking only 
 from my records and not from my personal knowledge. In 
 
 speaking of the amount of snow fall in the mountain draining to the 
 Arkansas river and its tributaries, I was simply giving my judgment 
 based upon such records of the State engineer and other reports as I 
 have received from time to time. In recent years the melting of the 
 snow has been hastened so that the water runs off more in floods than 
 theretofore. I attribute this sometimes to a warm rain and some- 
 times to an excessively hot spring. I am one of the cranks who do 
 not believe that the cutting of timber off the headwaters of the 
 river has any effect on it. The length of time the snow lasts 
 
 1529 depends entirely upon the snow fall and the winter. For the 
 last two or three years trie snows have been going earlier 
 
 than usual. This year we have had plenty of water all the season. 
 It came mostly from rainfall. 
 
 There are some old ditches as well as some new ditches that haven’t 
 taken out any decrees for water. I have one in mind that claims 
 water from 1861. Some of these old ditches that were constructed 
 prior to the adoption of the constitution of the State of Colorado 
 have refused or have at least not taken out decrees for their water 
 rights. 
 
 I know very little of my personal knowledge with refer- 
 
 1530 ence to the State ditch near Canon City. I have crossed it 
 in wagons. There is a distance of a mile and a half or two 
 
 miles between the upper end of the ditch as completed and the pro- 
 posed site of the headgate of the ditch. The surveyed route between 
 
508 
 
 THE STATE OF KANSAS VS. 
 
 the upper end of the ditch as constructed and the place designated 
 to take the water from the river is nearly all rock — solid rock, very 
 steep. It is the Grand canon of the Arkansas, where the 
 1531 cost of construction would be enormous. In speaking of the 
 cost of the completion of this ditch in my direct examination, 
 I wish my answer to be confined to the three miles of ditch that had 
 once been completed and needed reconstruction. I believe I stated 
 in my answer that it had filled in with debris and other stuff and it 
 was just simply a matter of cleaning it out. The ditch could not be 
 completed except bv the expenditure of an enormous amount of 
 money. I think it would cost somewhere between two hundred and 
 fifty and three hundred thousand dollars to complete the ditch. 
 
 1533 This is a mere estimate based upon what I know of the con- 
 struction of other ditches. 
 
 In stating that the cutting off of timber at the headwaters 
 of the river lias had no influence upon the snow, I meant more par- 
 ticularly as influencing snow fall. I spoke with reference to the 
 precipitation not being influenced by the timber. The denuding of 
 the country of its forests takes the shade away from the snow and 
 the snow naturally melts slower in the shade than it would in the 
 sun. The same holds true of snow on the north hillsides and 
 
 1534 deep canons where the sun does not reach it. The largest 
 per cent, of timber has been cut off during the last twenty- 
 
 five years. In the earlier years the greater portion of the country 
 constituting the drainage at the head of the Arkansas and its tribu- 
 taries was covered with timber. The greater portion of it is now 
 barren of timber. Take for instance the head waters of the Foun- 
 tain from Colorado Springs up to the divide, prior to twenty years 
 ago there was fine timber there all around the base of the mountains, 
 heavy low cedars and junipers that covered the ground entirely. It 
 is gone now. The same is true all along the river. 
 
 There has been this kind of a change in regard to flood waters in 
 recent years : The water runs off much faster than it used to on ac- 
 count of the streams having been enlarged by constant floods, and 
 there has been gulches or draws made where there were none years 
 ago, all over the whole country there, and they take the precipita- 
 tion away much faster than it did before when the country was 
 almost level or there were no broken places in it. The beds 
 
 1535 of our streams have enlarged to a great extent so that the 
 time of the flood waters is much shorter, that is, the particu- 
 lar run-off is much shorter than formerly. These new ravines and 
 hollows forming these smaller streams are made from a great many 
 causes — from cattle trails, from roads that have been built through 
 the country and wagons that have gone over prairies' and left a 
 trail in the mud that has afterwards made an enormous ditch or 
 gulch. It seems as the country gets settled up these things become 
 more numerous. The destruction of the underbrush and the mak- 
 ing of trails, etc., would come under the same head. The larger 
 ravines have grown still larger all the time. There are some very 
 
I'Me S'fATE OF COLORADO ET Al. 
 
 SO0 
 
 noticeable instances close in here. For instance, this gulch that 
 caused this Eden disaster up here a few da}^s ago, I remember when 
 there was no more gulch there than there is on this floor. The 
 mountain river here in 1885 and 1886, we used to cross it on a little 
 short cottonwood log, and now it is a thousand or fifteen 
 
 1536 hundred feet wide at that point. Many of these ravines in 
 the earlier days were covered with buck brush, cactus, grass 
 
 and such stuff, and a little farther back toward the hills the river 
 was covered with cedar and pinon. There is nothing but the cedar 
 and pinon left; the other is pretty scarce ; it is eaten off and killed 
 by stock, so that the mountain valleys have been practically de- 
 nuded of that sort of growth of late years, and by the cultivation. 
 
 We usually distribute the water according to the priorities, 
 
 1537 but to this rule there are some exceptions. For instance, if 
 the water in a tributary is such that it can reach the river in 
 
 a sufficient amount, we close out the later priorities. If that water 
 won’t reach the river, we don’t close it out. That is governed by the 
 condition of the stream. The water in all the streams in this country 
 rises and falls when the stream is low. It will sink in one place and 
 rise in another. On most all of our tributaries that is the condition, 
 and when it sinks we leave it in the river; we don’t take it out. 
 We leave it where it will do the most good. In actual practice the 
 rule in reference to allowing water to be used on these tributaries 
 in preference to prior rights on the stream is to allow it to stay 
 there, under those conditions. In recent years there has been no 
 water to cut out from many of these streams; it would sink back 
 and we would allow the people up stream to use it. It 
 
 1538 wouldn’t show to the river at all, and sometimes not within 
 ten to twenty or thirty miles of the main river, and yet at 
 
 the head waters of these streams we would allow them to take that 
 water and use it. Some of the streams would not show within fifty 
 or sixty miles of the river ; they would be dry, with plenty of water 
 at the head of the stream. It frequently happens that the owners 
 of ditches on the tributaries are allowed to use the water near the 
 heads of the tributaries in preference to those having a prior right 
 to the use of the water from the main river. That water wouldn’t 
 be allowed to continue on its course. It would be impossible to get 
 it to the river at all. 
 
 Cross-examination. 
 
 By Mr. Campbell : 
 
 1539 There is a State reservoir near Monument, on the Monu- 
 ment river, which is a tributary to the Fountain, and the 
 
 Fountain is a tributary to the Arkansas. There are two State reser- 
 voirs in this division, one being at Salida. In the district that I 
 represent the lands could raise a crop without irrigation some years. 
 From one year to another, they could not. It is absolutely neces- 
 sary to have the waters of the Arkansas river to irrigate these lands 
 
510 
 
 SlATK OF KANSAS VS. 
 
 that I have testified to in order to raise productive and profitable 
 crops. If from any cause these lands could not get the waters from 
 the Arkansas river they would go back to their original state 
 again where they were before the white man ever saw them, or 
 worse. 
 
 1540 A cubic foot of water, as I have used the term, is 7J gal- 
 lons passing a given point in a given time. An inch of water 
 
 varies in different countries. In Colorado it takes 39J inches to 
 make a cubic foot. This refers to statutory inches; it is not cubic. 
 As to the amount of water it takes to irrigate an acre of land, 
 
 1541 this varies in different localities in this division. At differ- 
 ent places in this division it takes from one-half to two acre- 
 
 feet to produce a profitable crop. An acre-foot of water is an acre of 
 water a foot deep over the entire surface of the ground. It depends 
 entirely on the locality. We generally assume that a cubic foot of 
 water per second of time will go over 50 acres of land if we had it 
 continuously for the season. 
 
 The method of obtaining the decrees I have testified to is as fol- 
 lows: You first must select your site, survey your ditch and have a 
 copy of that survey made and sent to the State engineer’s office and 
 a copy filed with the county clerk, and then that ditch must be 
 completed, and you go before the district court with your evi- 
 
 1542 deuce and the court will grant you a decree upon that evi- 
 dence. This proceeding is initiated by a petition to the court. 
 
 If A has a ditch he goes and petitions the court to have it decree 
 the amount of water that he is entitled to, and the date of his ap- 
 propriation. When the ditches in this division were all completed 
 the court appointed a referee and this referee notified the claimants 
 of water throughout the particular district that at such a time he 
 would hear the evidence as to the amount of water they claimed, 
 and their rights. Each man claiming a right presented all the evi- 
 dence he possibly could before the referee. The referee then granted 
 upon the petition a certain amount of water, and that was then taken 
 to the district court for review. The district judge passes 
 
 1543 upon it and confirms these decrees. Then the court issues 
 the decree. The other parties who are interested are brought 
 
 into court by a notice served upon them or by publication. The 
 decree dates back to the time when the parties began work 
 
 1544 on the ditches. The survey of a ditch might have been 
 made but the work might not begin until the year after. 
 
 There is a large amount of water gets back to the Arkansas river 
 from the ditches in respect to which I have testified. I cannot give 
 you the percentage. Very little water in these ditches is lost by 
 evaporation. The best way to explain this is, you take a ditch here, 
 for instance, that goes around town, called the Bessemer ditch. 
 There is over 60 feet of return water from that ditch every day in the 
 year, whether the water is in the ditch or not. It never stops. There 
 is over 60 feet that never ceases to run, of return seepage. Now, 
 
'Ttfli STAtiS Ok COLOftAhO fi’I At. 
 
 511 
 
 there are numbers and numbers of days in a year that that 
 
 1545 ditch never has any water in it at all. It doesn’t affect the 
 seepage whatever. I don’t know what the average run would 
 
 be in that ditch, that is, per day. I do know that there is about 60 
 feet of return seepage every second of time from that ditch. I don’t 
 think there is any loss from the evaporation in the ditches at all to 
 amount to anything. The amount of water in these ditches after 
 it is applied on land, not lost in evaporation, seeps back to the 
 river. Of course after it is applied to the land there is a big evapo- 
 ration, but not in the ditch. 
 
 1546 I am acquainted with the topography of the country along 
 the Arkansas river in Colorado, and have paid considerable 
 
 attention to irrigation, and know a good reservoir site when I see 
 one. There are a great many reservoir sites along the Arkansas 
 river in the State of Colorado, where reservoirs could be constructed 
 to catch the flood waters and surplus waters. Approximately twenty- 
 five or thirty — maybe more. These reservoirs, if constructed prop- 
 erly, would easily take care of a hundred thousand acres of land. 
 There is now sufficient flood water escapes every year and goes down 
 into Kansas to fill the reservoirs I have referred to. Provided res- 
 ervoirs were constructed in Colorado along the Arkansas river 
 
 1547 and its tributaries to catch the flood and other waters which 
 now escape, taking one year with another, it would put from 
 
 two hundred to two hundred and fifty or three hundred thousand acres 
 under cultivation. There is an awful lot of flood water that now 
 escapes. At the last floods we had here an enormous amount of 
 water went out of the State. I think it would be practicable to im- 
 pound waters which now escape that would irrigate at least 100,000 
 acres more than are already irrigated in Colorado. I don’t think it 
 possible under any circumstances to impound all of the flood waters 
 of this State, but it is practicable to catch an amount sufficient to 
 irrigate a hundred thousand acres of land in addition to what is al- 
 ready irrigated along the Arkansas river and its tributaries in 
 Colorado. 
 
 Redirect examination. 
 
 1548 By Mr. Smith : 
 
 The 60 feet of return water that I spoke of coming from the 
 Bessemer ditch back into the river comes out of the ditch and shows 
 itself in the river. It runs into any gulches or arroyos, and then 
 we measure it in those little gulches back to the river. In 
 
 1549 measuring the volume of water we take all those gulches 
 and arroyos returning from the ditch to the river. 
 
 The Buffalo Creek ditch is the one closest to Kansas. I think 
 there is no dam constructed there, unless it is a sand dam, 
 
 1550 just a temporary dam. The dams for most of these small 
 ditches are built a few inches below what would naturally 
 
 be the bed of the river, and they could very easily draw the water 
 
Sl2 ^He sTAtE ICAMsaS VS. 
 
 out of the dam in these small ditches. At Rocky Ford where the 
 Amity dam was constructed it was 22 feet to bed rock in 
 
 1551 the bed of the river. At the town ditch west of Las Animas 
 the rock bottom is very shallow or only a few feet below the 
 
 river bed. Between the surface of the river and the bed rock it is 
 all gravel and sand, and that is filled with water, and there is a 
 current to that water. This water percolates down and goes with 
 the stream, very slowly. The bed rock back from the river 
 
 1552 below the surface of the bottom lands is from fifteen to sixty 
 feet. It is not level. It goes in what we call waves. It 
 
 will run a long distance deep and then comes right up to the top 
 and then it will sink right down again. This is why the water 
 rises and lowers again there. This water beneath the surface is 
 forced up this shallow reef. It will come to the surface and flow 
 with the river, while below that the river will be perfectly dry. I 
 think there is some difference at which the bed rock is found 
 
 1553 between the north and the south side of the river. It is the 
 deepest on the south side. On the south side of the river it 
 
 dips to the river; on the north side it sometimes dips to the river 
 and sometimes away from it. In most places about thirty miles 
 east of Pueblo, then for about thirty miles, the rock appears to dip 
 from the river, and there is nothing to indicate that it dips toward 
 the river. Then from that east it comes back to the river 
 
 1554 again. The wells along the river in most cases are found in 
 the gravel and sand, and I know of places where the sand is 
 
 thirty or forty feet deep. Sometimes we go through three or four 
 or five feet of fine sand. It doesn’t appear to hold the water like 
 the gravel, which is always water-carrying gravel. 
 
 Where the water is spread out on the fields from the canals I 
 presume it starts right away as seepage toward the river. I 
 
 1555 presume this from the slope of the ground. When it slopes to 
 the river I presume as soon as that water gets down it begins 
 
 to hunt its level and will gradually work to the river. The water 
 in this water-bearing gravel comes either from the river or from 
 the ditches on the side, so that portion of the seepage gets into the 
 water-bearing gravel. The seepage that goes into the water-bearing 
 gravel is small as compared with the water in the river. 
 
 We know that the Buffalo canal is fed by seepage because there 
 is no river water where the headgate is and away above it. The 
 water seeps into the river and makes a channel. We don’t call that 
 river water. Wherever the water strikes the river it will form its 
 own channel until it is captured again. Even though the water 
 that supplies the Buffalo ditch might have been forced to the 
 
 1556 surface of the river by the reef, still it would be seepage. The 
 water for the Buffalo ditch would naturally be both from the 
 
 water in the water-bearing gravel and from the return waters. It 
 would take an acre foot at the least calculation to make the 
 
 1557 average growing plant upon an acre of land. I don’t know 
 how much water it takes to irrigate an acre of alfalfa. There 
 
TM£ St ATE OE COLORADO ET AL. 
 
 513 
 
 is no farmer that knows that himself. He floods his land, and that 
 is all he knows, if he has the water to do that. I am not a practical 
 irrigator myself. I know how deep it ought to penetrate, but I 
 don’t know each irrigation whether they have got enough water. 
 If he has sufficient water to irrigate his land it ought to penetrate 
 until it reaches a lower stratum. You take a run-off here a foot 
 deep and it wouldn’t go into the ground six inches. You take the 
 same amount of water and spread it over the land right and it will 
 go eight feet or more. That is why I say they don’t know 
 
 1558 how much it takes to wet it. It depends very largely upon 
 the condition and the depth of the soil, the amount of sub- 
 soil, and all that sort of thing. Between Canon Cit} 7 and the State 
 line we have measured the water in the draws and arroyos and all 
 return places and we know what the return seepage is. These 
 
 measurements show that between Canon City and the State 
 
 1559 line in' the years 1897 and 1898 the return seepage was 392.9 
 cubic feet per second of time. What I have said in reference 
 
 to the seepage or return flow of the Arkansas river does not apply 
 to the tributaries of the Arkansas river in the same proportion. As 
 to them, it is less. A few of them deliver a great deal and others 
 very little. The principal seepage or return flow from the canals 
 is into the river itself. 
 
 Redirect examination. 
 
 By Mr. Loomis: 
 
 As to the extent of territory in the Rocky mountains that is in- 
 cluded in the drainage area of the Arkansas river and its tributa- 
 ries, I can state it approximately from my records. The State engi- 
 neer has it. It is a little more than one-quarter of the State. The 
 snow falls in the mountains from the first of September to 
 
 1560 the first of September. It is liable to fall any day. It begins 
 to melt in February and will then freeze and then thaw. 
 
 Generally, melting sufficiently to cause water to run in the streams 
 begins about the first of March. By the first of March or prior to 
 that there is very little melting of snows. In April and May the 
 snow commences to melt so as to cause water to flow in appreciable 
 quantities. The snow that falls upon the mountains from Septem- 
 ber to April is some of it stored. A great deal of the early snows 
 that fall are absorbed right there in the mountains. In September, 
 October and November, and even in December, there are large 
 amounts of snow that fall that will melt and is absorbed in the 
 mountains at the time and you never see it. There is no run 
 
 1561 off to it. There is an appreciable quantity of snow melting 
 in September, October and November. It commences in April 
 
 and would sometimes end about the first of July, depending on the 
 season and the amount of snow. The snow that melts in September, 
 October and November does not furnish any run-off ; it is absorbed by 
 the mountains. The snow that falls from September until March re- 
 33—7 
 
Si4 
 
 tfHF StATlJ OF kAftsAfc VS. 
 
 mains in the mountains in some form of moisture, or evaporates. 
 
 1562 If there should be a heavy snow in September and a warm 
 rain on it, it would all come in together and doesn’t run from the 
 
 mountains in any appreciable quantities, ordinarily. If the conditions 
 are favorable the precipitation upon the mountains falling after Sep- 
 tember usually remains in the mountains until the thaw begins in 
 the spring. As to the time when the greatest thaw occurs so as to 
 carry the water, that depends entirely on the season, whether it is a 
 hot spring or a cold spring. Take it in an average season for the 
 last twenty-five years, it would occur along the last of Ma} 7, and first 
 of June. That is true in ordinary seasons, but is not always 
 
 1563 true. Speaking ordinarily and taking it year after year, the 
 most of the water will come from the mountains into the 
 
 Arkansas river in the latter part of May or during the month of 
 June. The seasons vary here so much that we may have a rain 
 that would produce a flood, and at another time it would take off 
 the snow in a hurry ; but if the season is an ordinarily warm season 
 throughout or if it happens to come that way the snows will melt 
 very regularly and the volume will reach us in May or the first of 
 June. It all gets down by the month of September, and even be- 
 fore that. I didn’t mean to say in my cross-examination that the 
 snow melts more rapidly now than formerly. It will in certain 
 cases. The same piece of ground where this timber was cut off, 
 some winters the snow will fall there and freeze and thaw and freeze 
 until I have driven wagons heavily laden over that snow and over 
 the same ground, and that snow wouldn’t melt until very late in 
 the season. Another year may come and that same snow 
 
 1564 will be gone before the first of April, on the same ground. 
 The cutting of the forests upon the mountains within the 
 
 drainage area of the Arkansas river does under some circumstances 
 cause the snow to melt more rapidly than formerly. So, year in 
 and year out, I will answer your question by saying that in some 
 years it will melt more quickly and in some it won’t. I don’t know 
 for how many years during the last ten years the denuding of the 
 mountains has caused the snow to melt more rapidly. I think last 
 year it melted a little faster than it would have done if we had had 
 plenty of timber all over the country. For the years 1902 
 
 1565 and 1901 I don’t remember. If the cutting of the forests 
 does cause the snow to melt more rapidly, then the water 
 
 ought to come down in greater volume, and those times occur in May 
 and June. There is more water flowing down the Arkansas river from 
 snows in May and June than in other portions of the year, but I will 
 not say that that amount is greater than the amount produced 
 by rain. The greater part of the water flowing in the Arkansas 
 river is obtained from the rains rather than the melting of snow. 
 I should think that during the spring and summer months probably 
 seventy-five per cent of it comes from rains. In order to know 
 what proportion comes from rains and what proportion from melt- 
 ing snows the year through we would have to know what proportion 
 
T&E SflATtt OE COLORADO ET AL. 
 
 5l5 
 
 of water was stored in the mountains eacli season by rains and 
 
 1566 what was stored by snows. The heavy rains come at any 
 time from spring until fall, for six months. From the first 
 
 of April or the middle of March to the middle of September. If we 
 have any rains outside of these months it is an extremely rare 
 
 1567 case. The rainfall begins with the middle of March and is 
 known to go as far as the middle of September if it does not 
 
 1568 turn to snow. It has done it a good many times. 
 
 Examining Complainant’s Exhibit A-5, I should say from 
 this record it appears that there is a much greater volume of water 
 flowing in the Arkansas river at Canon City during the months of 
 May, June and July than during any other months of the year. 
 (Objection.) It appears from this record that that was from 
 
 1569 1888 to 1893. I have no doubt but that in June and July 
 there is more water flowing in the Arkansas river at Canon 
 
 City than at any other time. I have never made any other state- 
 ment that there wouldn’t be. It is liable to come from any source. 
 I have not stated that it comes from melting snows. 
 
 In stating that it took a cubic foot of water continuously applied 
 to irrigate fifty acres of land for a season, I meant by the words “ for 
 a season” from the first of March until the crop was made. 
 
 1570 This would apply to all sorts of crops. I make the assertion 
 that a cubic foot of water per second of time is sufficient for 
 
 an acre of land, regardless of what crop is put on it, whether it begins 
 the first of January and ends the first of January or whether it begins 
 the first of May and ends the first of September or not. (Objection.) 
 That cubic foot of water is used to make a crop put in the ground. 
 These sugar beets are planted in May. It will be from the time the 
 seed was putin the ground until that crop is ripened in Sep- 
 
 1571 tember. The other crops grown in the Arkansas valley here 
 are wheat, corn, barley, melons of various kinds, flax, oats, 
 
 sugar beets, apples, bush fruits of dozens of kinds, sugar cane, sugar 
 corn, kaffir corn, hay, alfalfa, and wild hay. Alfalfa is never planted 
 but once. Fruit crops are planted but once. Sugar beets are planted 
 in the spring, in the month of May and some wheat is planted in May 
 and some in September. Only a very small amount, what we call 
 hard wheat is planted in September. Wheat is a small crop com- 
 pared with some others. Most of the crops we raise here are spring 
 crops, and they begin to mature in June and from that until Septem- 
 ber, and nearly all are matured by September, and most of the water 
 that is used for irrigation purposes while these crops are grow- 
 
 1572 ing is used from March to September. The hottest season is 
 in July and August. I presume that it has an effect upon the 
 
 quantity of water used in the irrigation of crops. 
 
 I have known the temperature here to get I think 100 in the 
 shade. It is hotter down at the Kansas State line than it is at Pu- 
 eblo. 
 
 I think there is some evaporation of water in the river, but not 
 
THft St ATE OF KANSAS V§. 
 
 m 
 
 very much. I don’t think there is very much in the canals. 
 
 1573 There is a certain amount of evaporation when the water has 
 been spread over the ground for the purpose of supplying 
 
 moisture to the growing crops. I am not positive how many acres 
 of land are irrigated from the waters of the Arkansas river and its 
 tributaries in the State of Colorado, but as nearly as I can recall 
 there is something like four hundred thousand acres. It is a mat- 
 ter of record in the State engineer’s office. I presume that about 
 seventy-five per cent, of that is irrigated during the hot months of 
 the summer. The waters of the Arkansas river during these hot 
 months are distributed over this large area of land for the purpose 
 of getting moisture to the growing crops. The number of days that 
 the water is used depends upon the crop. You understand some 
 crops take more water than others. The crops that are supplied 
 most frequently with water I presume are irrigated three or 
 
 1574 four times between March and September. I don’t think it 
 is applied oftener than that to any crop. About once a month. 
 
 Applying this water to this large area during the hot months causes 
 a great deal of evaporation, I presume, but I am not able to state the 
 amount. We raise large quantities of alfalfa, wheat and other crops 
 on this area of land, and immense of crops if we have a good sea- 
 son, and all these crops absorb more or less moisture from the ground. 
 
 My busiest season is the year round, from January to January. 
 I am not in the field onty when I care to go. My duties are office 
 duties, and it absorbs all my time here, unless there is something 
 comes up that needs my individual attention. 1 depend upon 
 
 1575 my subordinates to look after matters in the field. Each sub- 
 ordinate in his own district is required to go over portions of 
 
 the river from day to day. We see that the water is properly dis- 
 tributed for the purpose of settling all disputes. The bulk of the 
 disputes get to me, and these come thickest in May, June, July and 
 August. The want of water causes them to come to me thickest at 
 that time. These are the months when there is more scarcity of 
 water and when the water is used most generally along the river, 
 and when they get into trouble mostly about the water. During 
 these months I am not able to supply them all with the 
 
 1576 water they need. I have always been able to furnish them 
 with water enough during these months to make a crop. I 
 
 have never known a time when I was not able to give them water 
 enough to make a crop during these months, but I have a great deal 
 of trouble distributing the water between the different lands because 
 each one wanted to get as much as his appropriation called for, and 
 that led to the trouble. I don’t think that they always got as much 
 as they wanted. I don’t think that they got enough to make as 
 good a crop as it would have been if they had had more water. In 
 order to give them all I could I took all the water from the river 
 that I could possibly get, and I didn’t allow a bit of it to get away if 
 I could help it. We had special orders not to allow any to go 
 
 1577 down the channel into Kansas. These special orders origi- 
 nated with me. 
 
THE STATE OF COLORADO KT AL. 
 
 517 
 
 111 speaking of the water being captured again after returning to 
 the river as seepage, I meant to say if the appropriation nearest to 
 the water was entitled to it it would get it. The water that would 
 gather in the river below the dam I don’t think some of it would 
 ever get to any dam whatever below; it would be taken into a small 
 ditch. It would go down until it struck some other ditch and it 
 would then be captured by that ditch, if it was entitled to it. If a 
 dam should take all the visible water above it and put it into a ditch 
 some of it would get back again and some of it would go under the 
 dam, but the next dam or ditch would catch it if it appeared, 
 
 1578 if there was any of it in sight. Then if any happened to go by 
 again from that ditch ordam and went down the river a ways 
 
 another dam or ditch would capture it again if it appeared, if there 
 was any of it in sight, and that would be kept up from one end of 
 the i-iver to the other, until the Kansas line was reached, and then 
 Kansas would get it. There is some left and Kansas gets it. 
 
 Q. You do not aim to have Kansas get it? 
 
 A. Well, that is my own business, you know. That, don’t come 
 from anybody but me. It was a joke. 
 
 Q. Did not Professor Carpenter promulgate the same doctrine? 
 
 A. No, sir, he did not. 
 
 Q. You are quite sure of that? 
 
 A. Yes, sir, I am. I will shoulder anything that I do. I am not 
 sticking it onto somebody else. No, sir, that was simply a joke on 
 the river. 
 
 After the water leaves Rocky Ford it is subject to capture 
 
 1579 several times. It is not subject to capture above Rocky Ford, 
 because we have generally some of it up here. 
 
 The water we take from the river for irrigation is distributed over 
 land back from the river, vaying from three to fifteen miles. (Ob- 
 jection.) The State reservoirs that I have spoken of are owned by 
 the State of Colorado. One is located in El Paso county, above 
 Colorado Springs, a very small one. There is a very small one on 
 the south side of the Arkansas river above Salida. I don’t 
 
 1580 suppose they would cover over five or ten acres. I presume 
 the deepest point in either of them, if full of water, would be 
 
 fifteen feet. The reservoir up here near Colorado Springs is used 
 once in a while for the upper part of the Fountain valley, for irriga- 
 tion purposes. It is a question as to whether the State owns that 
 reservoir or not, or whether it has abandoned it or not. I under- 
 stand the one up on the Monument creek in El Paso county cost 
 fifty thousand dollars. It was built by the State, and if I am not 
 mistaken, in the year 1886. It has been used for irrigation 
 
 1581 purposes since that. It is used very little for irrigation pur- 
 poses. We have never turned it out more than once a year, 
 
 and then it would only go into two or three ditches, and a very 
 small amount of land under them. The water comes into the Monu- 
 ment reservoir from the water shed of upper Monumeut creek, 
 which is a tributary of the Fountain, and this is a tributary of the 
 
518 
 
 THHJ STATE OF KANSAS VS. 
 
 Arkansas. This is within my jurisdiction, and I look after it, but 
 we do not charge anything for the use of the water. We just give 
 the use of the water to the farmers. I don’t know whether 
 
 1582 any repairs have been made upon it. The other reservoir on 
 the South Arkansas is up in the mountains about one hun- 
 dred and ten miles above Pueblo, and is supplied from the water 
 shed of the South Arkansas. This reservoir was built by the State, 
 but when it was built and how much it cost I do not know. It is 
 within my jurisdiction, and is used, if at all, for irrigation, supply- 
 ing three or four small ditches on the South Arkansas. It is 
 
 1583 still used for that purpose. There are no other State reser- 
 voirs within my jurisdiction, but there are nine or ten big 
 
 reservoirs. Three of them are used for manufacturing purposes 
 and the balance are used for irrigating purposes. Some of 
 them get their supply from the St. Charles, one of them 
 from Lake creek, and all of them get their supply from the 
 tributaries of the Arkansas or from the river itself. These reser- 
 voirs are not allowed to be filled at any time of the year but only 
 when there is a surplus of water for all decreed ditches. This time 
 generally occurs at different periods in the months of March, 
 
 1584 April, May and June. Sometimes it is in August and some- 
 times it has occurred through the winter months that they 
 
 would take some water. The only times they have ever been filled, 
 it only ran during the months of May and June, or a part of July 
 maybe. It is customary to fill them each year if we have the water, 
 but we do not have the water to fill them usually each year. I 
 think in the eight years last past we have never failed to fill them 
 but two years. I am not positive. We have never filled all of them 
 to their capacity. Some of them have been filled to their capacity, 
 but there are others that we have never filled, because we didn’t 
 have the water. They are filled when there is a surplus, practically 
 then during the flood season, and when the water is above 
 
 1585 the normal stage in the river. We usually get our best run 
 of water when the water is at the highest, and that occurs 
 
 sometimes in May, June and July. Of course the other months have 
 in that period of time furnished some reservoir water. I think four 
 of the largest reservoirs were never full. These are the NeGronda, 
 the Nee Sopah and Neoshe. These are located west of Las Animas, 
 under the Fort Lyon and Kicking Bird. The Kicking Bird is a 
 feeder of the Fort Lyon canal. The Laguna reservoir has a capacity 
 of 185,011,890 cubic feet. These reservoirs have no decrees 
 
 1586 but have filings. (Objection.) These filings consist of a pe- 
 tition for a decree, claiming the amount of water designated. 
 
 (Objection.) This is based upon the supposed capacity of the reser- 
 voir. They are entitled to water before they get their de- 
 
 1587 crees. I have to determine when they get water and how 
 much they get. I don’t have to be informed of the amount 
 
 of the appropriation the reservoir company has claimed. When 
 they claim the water we give it to them until they are full, or what. 
 
THE STATE OF COLORADO ET AL. 
 
 519 
 
 they want. It makes no difference to us what the amount is they 
 claim. We govern the reservoir’s water according to their filings, 
 which we get from the State engineer’s office. The companies 
 
 1588 notify me here that they want so much water and make claim 
 for it. I get the information from the State engineer’s office 
 
 1589 that they are filed there, and allow them to have the water. It 
 is absolutely unnecessary for me to have the information of the 
 
 1590 amounts claimed by the reservoirs. There are certain rights 
 recognized in reservoir companies that have built their res- 
 
 ervo-rs and made application for filing, from companies that have 
 made no reservoirs. We recognize that priority, although I pre- 
 sume there is no legally established priority. It is not necessary to 
 know the amount they claim and are entitled to in order to deter- 
 mine between these reservoirs; that doesn’t make any difference at 
 all ; it makes no difference whatever in the surplus that goes 
 
 1591 into them. 
 
 The next reservoir after the Laguna is the Queen, (objec- 
 tion), whose capacity it 1,418,182,920 cubic feet. 
 
 The next is the King, whose capacity is 796,233,732 cubic feet. 
 The next is the Neoshe, whose capacity is 2,614,325,240 
 
 1592 cubic feet. 
 
 The next is the Nee Gronda, whose capacity is 2,491,806,240 
 cubic feet. 
 
 The next one is the Nee Sopah, whose capacity is 1,022,113,620 
 cubic feet. 
 
 The next is the Minnequa, whose capacity is 57,275,000 cubic 
 feet. 
 
 The next one is the Savard, whose capacity is 63,000,000 cubic 
 feet. 
 
 The next one is No, 3, whose capacity I haven’t got. 
 
 Tiie Savard was built a couple of years ago, but was not finished. 
 The Minnequa was built, I presume, twenty years ago or more. 
 The Laguna has been built since some time in the late ’80’s and the 
 others have been built some time in the ’90’s. The Minne- 
 
 1593 qua and the Savard are not used for irrigation purposes, but 
 are owned and controlled by the Colorado Fuel and Iron 
 
 Company and are used for manufacturing purposes (objection) and 
 are located almost within the limits of Pueblo. The Laguna is 
 situated below Pocky Ford and is under the Lake canal. The 
 Neoshe, Nee Sopah, King, and Queen, belong to the Great Plains 
 Storage Company and are situated north of Las Animas. There 
 are several other reservoirs that I have not mentioned and that I 
 haven’t got the rocords of at all. There is the Sugar Loaf reser- 
 voir, built for manufacturing purposes, north of Leadville, which is 
 a very large one; there is a reservoir called No. 5, that be- 
 
 1594 longs to the Colorado Fuel and Iron Company, that is not 
 completed. This is for manufacturing purposes. There is 
 
 one on the Huerfano, but I don’t know its dimensions. It has a 
 filing but no decreed appropriation. It is used for irrigation. 
 
520 
 
 THE STATE OF KANSAS VS. 
 
 What proportion of the Arkansas river as it ordinarily flows below 
 the Grand canon is derived from the tributaries which run into the 
 Arkansas river below the canon depends largely on circumstances. 
 The bulk of our water is furnished from flood waters, and these flood 
 waters as a rule come from the tributaries or side streams. The 
 rate of flow of the Arkansas river other than that is very small. 
 The flow of the Arkansas river as it comes out of the Grand canon 
 is very small, unless it has been augmented by floods from the side 
 streams. Some of these side streams furnish water from the melt- 
 ing snows in the mountains — all of them more or less. All the 
 water coming through them normally is mountain water. 
 
 1595 The last tributary west of the Kansas line I think is the Big 
 Sandy. Up to this year it never discharged but very little, if 
 
 any, into the Arkansas river, except when there were floods in it. 
 The continuous rains have caused the discharge this year. We have 
 had heavy rains in this vicinity this year, and that accounts 
 
 1596 for the unusual flow of water in the Arkansas river. The 
 measurements that have been made of the Arkansas river 
 
 and its tributaries are on file in the State engineer’s office and we 
 consider. them very accurate. (Objection.) These estimates 
 
 1597 were made under the supervision of the State engineer. The 
 party who makes the gauging is a man deputized by the 
 
 State engineer for that purpose. The gaugings have not been kept 
 up regularly expect for the last two years. They have been called 
 for by the ditch associations ever since I have been in the office. 
 We have had them ever since I have been in the office, but they 
 have not been as accurate as the present State engineer has 
 
 1598 caused them to be. The records prior to two years ago are 
 not as complete as they have been recently. What was done 
 before was accurately made, but they have been growing 
 
 1599 more complete all the time. The Government has had a 
 party here who has measured these streams for a long time. 
 
 The present one is Mr. Fellows of Denver. I am not able to state 
 the carrying capacity of the Arkansas river with its banks 
 
 1600 full at any point within my jurisdiction. It depends upon 
 what the banks are. The Arkansas river through Colorado 
 
 is wider now than it was in former years. The average width be- 
 tween Pueblo and La Junta would be fifteen hundred feet. Between 
 La Junta and Las Animas it is a good deal wider, and between Las 
 Animas and the Kansas State line still wider. But in the early 
 3 7 ears it was narrower than these estimates I have given. 
 
 1601 The water gets into some of these reservoirs that I have 
 mentioned through canals and into some of them through 
 
 the natural creeks. They are all supplied from the Arkansas river 
 or its tributaries. I think the first use of the reservoir water from 
 the Twin Lakes reservoir was made about five years ago, and the 
 first water, I think, that was used by the Great Plains Storage Com- 
 pany reservoir would probably antedate that a few years. The La- 
 guna reservoir would, I think, antedate the Great Plains reservoir 
 
THE STATE OF COLORADO ET AL. 
 
 521 
 
 a few years, and then the Huerfano reservoir was used about thirty 
 years ago. 
 
 1602 I have examined Compalainant’s Exhibit A-14, and will 
 say that I had that prepared under my supervision, and that it 
 
 is a correct statement of what it purports to show upon its face. My 
 impression is that it gives some filings as well as decreed appropria- 
 tions. 
 
 (Exhibit A-14 introduced in evidence. Objection.) 
 
 Recross-exa mi nation. 
 
 By Mr. Campbell : 
 
 1603 Complainant’s Exhibit A-14 was compiled under my di- 
 rection from data which is kept in my office, which the stat- 
 utes of the State of Colorado require to be kept. I have examined 
 it, and it is a faithful transcript of the records in my office which by 
 law are required to be kept, as near as we could make it. If there 
 are mistakes in it we don’t know it. It is as nearly perfect as we 
 could make it. 
 
 Recross-examination. 
 
 By Mr. Hayt : 
 
 1604 I don’t know that the law requires me to keep any record 
 of these decrees and filings, but they are certified up to me 
 
 by the district clerk every time they are entered on my books. A 
 decree is the decree certified up bv the district court, and a filing is 
 a petition made in court for a decree — the commencement of 
 
 1605 a suit to determine the right to the water. I don’t mean to 
 say that Exhibit A-14 contains all of the filings in the State 
 
 engineer’s office. I think it contains three or four on which decrees 
 had not been entered. I think I had a few in the office and just 
 entered them up on there, but it was not intended for filings at all. 
 There are lots of filings in the State engineer’s office, in this division, 
 that are not in my office at all. This paper simply contains 
 
 1606 the decrees as certified to this office, and there may be two or 
 three filings. (After examining Exhibit A-14) I don’t think 
 
 there are any filings in this whatever. The appropriations which I 
 spoke of, made prior to 1861, are shown in this statement. There 
 are certain appropriations prior to January 29, 1861. With their 
 amounts they are as follows : 
 
 The Flannigan ditch, April, 1860, .74 of a cubic foot per 
 second. 
 
 The Che 3 r enne ditch, 1860, 3 cubic feet per second. 
 
 The Hardscrabble ditch, May 1st, 1860, .93 cubic feet per second. 
 The Toof, February 20, 1860, 4 cubic feet per second. 
 
 The Hicklin A., spring of 1859, .6 cubic feet per second. 
 
 The Hicklin A. of Mrs. Ilicklin’s first priority, spring of 1859, .1 
 of 1 cubic foot per second. 
 
522 
 
 THE STATE OF KANSAS VS. 
 
 Hicklin B., spring of 1859, 1.8 cubic feet per second. 
 
 The total amount of these certain appropriations is 11.14 cu-ic 
 feet per second of time. 
 
 1607 All of the streams that drain into the Arkansas river have 
 their source in the mountains except two or three. 1 should 
 
 say that one-fourth of the Arkansas river drainage is in the mount- 
 ains, and about three-fourths east of the mountains, between them 
 and the Kansas line. In speaking in my direct examination of the 
 snow fall that fell upon this drainage I had reference simply to the 
 snow fall in the mountains and not that upon the drainage 
 
 1608 east of the mountains. In stating in my direct examination 
 that a cubic foot of water would irrigate fifty acres of ground 
 
 if it flowed continuously, I did not mean that it would require a 
 continuous flow of a cubic foot of water to irrigate fifty acres of 
 ground. We mean by that expression that if the party who owned 
 the land could have the water whenever he wanted it. That varies 
 in this division, as I wanted to explain to him, from 25 to 100 acres, 
 but an average would be about fifty acres as a rule. I have already 
 stated that it is only necessary to use this water three or four times 
 during the year. I cannot say to what depth a cubic foot of water per 
 second of time will cover fifty acres of ground, per month It would go 
 pretty deep if it would go down in the ground. I should think 
 without going into the ground at all it would cover it about 
 
 1609 fifteen inches deep — all of that. So that a cubic foot of water 
 would irrigate much more than fifty acres. On the Beaver 
 
 creek they claim a foot of water will irrigate only twenty-five acres 
 of land, and they made a petition in court and got a decree for that 
 amount. In other places a foot of water is abundant for one hun- 
 dred acres of land. I believe if a cubic foot could be had whenever 
 you wanted it and applied in certain places it would irrigate 150 
 acres of land in certain districts. In certain places a cubic foot of 
 water per second of time would irrigate that much on an average if 
 it could be had whenever it was wanted. That implies that it is not 
 wanted continuously. If it runs continuously it will irrigate more 
 than fifty acres. I don’t believe it will irrigate more than 
 150 acres on an average in this district, for this reason : There 
 are a large number of decrees taken out where the claimants have 
 made sworn statements that it would take a cubic foot of water con- 
 tinuously to irrigate twentv-five acres of land. They claim 
 
 1610 that the conditions are different. I believe that east of here 
 it would irrigate 150 acres of land if it ran continuously. 
 
 On an average in this whole drainage of the Arkansas river and its 
 tributaries I don’t believe it would irrigate over 100 acres. 
 
 The book I used to refresh my memory in testifying in regard to 
 these reservoirs was simply a little memorandum pocket book I 
 have. It is not an official record at all, but simply a little memo- 
 randum I have for my own personal convenience. 
 
 Q. Now, I didn’t get this quite clear in my mind with reference 
 
THE STATE OF COLORADO ET AL. 
 
 523 
 
 to the waters going down into Kansas. You said something 
 1611 about a joke. I would like to know exactly what you mean 
 by that. 
 
 A. I can best give you that by an explanation, if you want it. 
 Sometimes they call for water at the Amity canal, for instance, and 
 I will want to know from the water commissioner how much of that 
 water he is letting go into Kansas, and he will probably reply back 
 that there is none of it, and I will tell him back he had better not 
 let any go there while he is hollering for his decree. 
 
 Q. It is a mere matter of joking, is it not ? 
 
 A. That is all, between myself and the water commissioners. 
 
 Q. You don’t mean to say you do anything to prevent this water 
 running into the State of Kansas, do you, except as it might be sup- 
 plied to those various ditches? 
 
 A. That would be all. 
 
 In reference to these reservoirs that I have said belong to the State 
 of Colorado, there are two of them. 
 
 Q. Do you know whether these reservoirs belong to the State 
 or whether or not the State simply made an appropriation to aid in 
 the construction of the reservoirs? 
 
 A. Individually and privately, I don’t believe the State has any- 
 thing to do with it. I think they have lost all the right they ever 
 had to them. 
 
 This reservoir at Monument is a very insignificant affair. I 
 don’t think it is kept in repair. If it is I don’t think the State has 
 ever appropriated anything for the purpose of keeping it in repair. 
 The water is turned into the Monument creek when we take it out 
 of that reservoir. Monument creek is a tributary of the Fountain, 
 and then the first ditch up the Fountain generally gets the water. 
 This water is held in the reservoir in flood times and turned out 
 into the creek in times of low water. In reference to this little reser- 
 voir in Chaffee county, it is claimed by people that the State owns 
 it. I don’t know anything about the ownership except that we gov- 
 ern it as if it belonged to the State. I merely know that the 
 
 1613 State made an appropriation to aid in its construction. That 
 is as far as my information goes. When we turn the water 
 
 out it goes into the South Arkansas river, a tributary of the main 
 Arkansas river, and that is taken up by a very few ditches, princi- 
 pally on the South Arkansas river. It goes to supply the priorities 
 along the South Arkansas river. As to whether the figures I gave 
 in giving the capacities of these private reservoirs designate the 
 number of cubic feet in the reservoirs or the number of gallons, I 
 would say that I find there are several reservoirs filed for so many 
 million gallons and some of them for so many cubic feet. It does 
 not say cubic feet per second of time, because cubic feet in a reser- 
 voir I presume is different. It don’t state, and I didn’t take the 
 time to look. Some of them are cubic feet and some are gallons. I 
 am not absolutely certain which of these figures that I have 
 
 1614 given represent cubic feet and which represent gallons. I 
 know that in some of them it represents gallons and in others 
 
524 
 
 THE STATE OF KANSAS VS. 
 
 it does not. Seven and a half gallons, approximately, constitute a 
 cubic foot. I think a cubic foot in a reservoir is different from a 
 cubic foot per second of time in a ditch. [ think it relates in a 
 reservoir more to the acre foot. These reservoirs that are used for 
 manufacturing purposes use the water for manufacturing purposes 
 and then turn it back into the river. A large percentage of 
 
 1615 it goes to the river again. What they use is exhausted by 
 steam and evaporation. As to this little reservoir in Chaffee 
 
 county, I know as a matter of fact that it is not under the control of 
 the board of county commissioners in Chaffee county. I know that 
 they tried to assume control of it and we broke it off on them. Well, 
 we stopped it, that is all. The law does not say that the county 
 commissioners have anything in the world to do with it at all. It 
 is under the control of the governor of the State and the board of 
 commissioners, and it says in regard to the Monument reservoir — I 
 have looked it up — that the water shall be sold to the highest 
 bidder. 
 
 Q. I read from section 2495-C, 1-1 / 8, of Mills’ Annotated statutes, 
 third volume : 
 
 “The board of county commissioners shall have charge and con- 
 trol of that certain State reservoir situated in said county and com- 
 monly known as the Boss Lake reservoir, and shall, without expense 
 to the State of Colorado, maintain and keep said reservoir in good 
 condition.” 
 
 A. Well, that is not the case with the Monument reservoir. This 
 reservoir specified or designated as the Boss Lake reservoir is the 
 one I have been testifying of, in Chaffee county, but I know that is 
 not the case with the Monument reservoir. 
 
 1616 Q. Don’t you know that the board of county commissioners 
 of the county has control of the Monument reservoir? 
 
 A. No, sir, I do not. I know they tried to control it, and I know 
 that — it doesn’t say so in the statutes at all. 
 
 Bee ross-exa m i n a tion . 
 
 By Mr. Campbell : 
 
 I stated in answer to a question put to me by you (Mr. Campbell) 
 that there were flood waters sufficient to irrigate a hundred thousand 
 acres of land which now escape; that is, they could irrigate a hun- 
 dred thousand acres of land if they were properly impounded and 
 stored in reservoirs; and in answer to Mr. Loomis’ question I said 
 that there were certain reservoirs here that had never been filled. 
 In explanation of these two statements I will say that when the 
 ditches that carried the water to these reservoirs that were never 
 full were given permission to take reservoir water they broke and 
 it took them all the time to repair it and the flood water was gone 
 before it was repaired. I didn’t mean to say that there was not 
 sufficient flood water to fill those reservoirs already constructed ; I 
 
'Tim STATIC OF COLORADO ET AL. 
 
 S25 
 
 ineant they couldn’t take it and didn’t take it because the 
 1617 ditches were out of repair when they did have it. But it was 
 not by reason of lack of flood waters. I don’t think any of 
 these reservoirs I have testified about are located upon the public 
 
 land. 
 
 Denver, Colorado, September 2, 1904. 
 
 1618 Louis G. Carpenter, Denver, Colorado. 
 
 Direct examination. 
 
 By Mr. Smith: 
 
 I am State engineer of Colorado. I am appointed by the governor 
 of the State. I have held that position since April, 1903. 
 
 1619 As State engineer I have custody of such records relating to 
 irrigation in Colorado, ditches, and measurements of streams 
 
 as are taken by those connected with the administration. The State 
 gives the State engineer general authority and also certain general 
 duties. As State engineer I require certain reports from time to time 
 from my subordinates. The subor-i nates, the water commissioners 
 and the division engineers have certain statutory authority. I 
 have general supervisory authority over the division engineers 
 
 1620 and water commissioners. The State is divided into five 
 divisions. The divisions are divided into districts. There 
 
 are some districts that have no water commissioner appointed in 
 them. The authority of each water commissioner is limited to a 
 certain district. Certain of these districts united constitute one 
 division and are under the superintendence of a division engineer. 
 An appeal lies from the decision of the division engineer to the State 
 engineer. Division No. 2 constitutes the Arkansas river and its 
 tributaries. District No. 14, division No. 2, is a part of the Arkan- 
 sas river. The paper just handed me is a portion of the report of 
 the water commissioner of district No. 14, division No. 2, for 1895. 
 It is a part of the records of my office. (A copy of this report is in- 
 troduced in evidence as Complainant’s Exhibit A-15.) 
 
 1621 The paper you now hand me is the corresponding report of 
 district No. 14, division No. 2, for the year 1896, and is also 
 
 a part of the records of my office. (A copy of this report is intro- 
 duced in evidence as Complainant’s Exhibit A-16.) 
 
 1622 The five papers now handed me are similar reports of dis- 
 trict No. 14, division No. 2, for the years 1897, 1898, 1899, 
 
 1900, and 1901, and are official records of my office, These are the 
 five reports of the water commissioners for this district. (Copies of 
 these reports are introduced in evidence as Complainant’s Exhibits 
 A-17, A-18, A-19, A-20 and A-21.) 
 
 1523 The six papers now handed me include part of the report 
 of the water commissioner of district No. 17, division No. 2, 
 for the years 1895, 1897, 1898, 1899 and 1900, and one is presumed 
 to be for 1896, but I cannot positively identify it. These are similar 
 
828 
 
 TMe STATE dE KANSAS VS, 
 
 reports to those referred to above and are kept in my office under 
 the same circumstances. (Copies of these reports are introduced in 
 evidence as Complainant’s Exhibit- A-22, A-23, A-24, A-25, A-26 
 and A-27.) 
 
 The seven papers now handed me include portions of the annual 
 reports of the water commissioners for district No. 67, division No. 2, 
 for the years 1895 to 1901, inclusive. They are similar records to 
 the ones referred to above and are kept in my office under the same 
 circumstances. (Copies of these reports are offered in evidence as 
 Complainant’s Exhibits A-28, A-29, A-30, A-31, A-32, A-33 and 
 A-34.) 
 
 1524 The reports which have been offered here are the latest 
 that I have in which they have been averaged and compiled 
 
 in this manner by the water commissioners. Field books were sent 
 to the water commissioners during the last two or three years for 
 daily records, and those field books have been compiled but appar- 
 ently the compilation has not been made by the water commis- 
 sioners. 
 
 1525 We have some incomplete records of the stream measure- 
 ments, of a number of tributaries of the Arkansas river, these 
 
 records not being made, however, by this office. They are on file 
 in this office. 
 
 The paper you now hand me is a copy of the data which we have 
 of the flow of the Purgatoire river for the years 1900, 1901, 1902 and 
 1903. This copy was prepared in my office. (This copy is intro- 
 duced in evidence as Complainant’s Exhibit A-35.) 
 
 The first of the three papers now handed me is a corresponding 
 copy of the data obtained in a similar manner from private sources 
 on the Tempe creek from 1900 to 1903, inclusive; the second is of 
 the Apishipa, from 1900 to 1903, inclusive ; the third is from 
 
 1526 the Fountain, for the years 1901, 1902 and 1903. These copies 
 were prepared in my office. (These copies are introduced in 
 
 evidence as Complainant’s Exhibit- A-36, A-37 and A-38.) 
 
 These four streams just mentioned are all tributaries of the Ar- 
 kansas river in Colorado. We have no regular source of measure- 
 ments of other tributaries of the Arkansas river below Canon City. 
 I think we have some of the Huerfano, and all the other measure- 
 ments are just occasional ones, not regular, and are not similar 
 records to those just introduced. They are imperfect, and these are 
 imperfect, a great many days lacking. There are a great many 
 dry streams that run water as a rule only in times of heavy rain, 
 which are also tributaries of the Arkansas river in Colorado. Those 
 that have a regular flow the year round are: Beaver creek, Oil 
 creek or Four-mile creek, St. Charles creek has a small amount, 
 usually from seepage, and the others are mostly seepage 
 1627 streams — purely flood streams. These are not tributaries 
 except in time of flood. The flow is very small. After 
 heavy storms we learn of tributaries that we never knew of before. 
 These four streams that we have been talking about and the meas- 
 
fHE STAlK OE COLORADO M AL. 
 
 52 ? 
 
 Uteuieiits of which were introduced in evidence are not tributaries 
 except in times of flood. They do not ordinarily bringdown much 
 water except in flood periods. Most of the water of these streams 
 is either taken out or sinks before it reaches the Arkansas river. 
 Practically whatever water they deliver to the Arkansas river, then, 
 except in times of flood, is seepage or return water. 
 
 We have some records in this office of the seepage measurements 
 of the Arkansas river ; that is, of the return water from irrigation to 
 the Arkansas river. The State engineer’s office has never taken 
 these measurements, but I think we have some records here of some 
 years. They were made by the experiment station or the 
 
 1628 irrigation engineer at Fort Collins. They include the sum- 
 mation for several years. Some of them were printed in this 
 
 report. These measurements were made by me or under my direc- 
 tion, but not as State engineer, in fact not in connection with the ex- 
 periment station. The experiment station is the agricultural experi- 
 ment station. It is the organization supported by the United States 
 Government for the purpose of experimenting on matters that affect 
 the agriculture of the State. There is one in each State. It has no 
 connection with the State engineer’s office whatever. It simply 
 furnishes this office as a matter of courtesy — a friendly exchange of 
 data. 
 
 1629 Complainant offers in evidence section 616, on page 264, of 
 volume 3, Mills’ Annotated Statutes (revised supplement), 
 
 Colorado, with the heading “May condemn right of way,” and we 
 ask that it be cited in full in the record. 
 
 Said section reads as follows : 
 
 “ If any corporation formed for the purpose of constructing a road, 
 ditch, reservoir, pipe line, bridge, ferry, tunnel, telegraph line or 
 railroad line, shall be unable to agree with the owner for the pur- 
 chase of any real estate or right of way or easement or other right 
 necessary or required for the purpose of any such corporation, for 
 transacting its business, or for the right of way or any lawful pur- 
 pose connected with the operations of the company, such corpora- 
 tion may acquire title to such real estate or right of way, or ease- 
 ment or other right, in the manner provided by law for the 
 condemnation of real estate, or right of way, and any ditch, reser- 
 voir or pipe line company may in the same manner condemn and 
 acquire the right to take and use any water not previously appro- 
 priated.” 
 
 Complainant offers in evidence also section 2495 W. of the same 
 volume, entitled “ Reservoir in Chaffee county — appropriation.” 
 
 Also section 2495 Y., of the same volume, entitled “ Board of con- 
 struction — powers — cost.” 
 
 Also section 2495 C i, of the same volume, entitled “ State own 
 reservoir.” 
 
 Also section 2495 0 1, of the same volume, entitled '* Reservoir at 
 Monument creek — appropriation.” 
 
§ 2 § 
 
 (tMe state ot' Kansas VS. 
 
 1631 James Cowie, Denver, Colorado. 
 
 Direct examination. 
 
 By Mr. Ashbaugh : 
 
 I am secretary of state of the State of Colorado. As such secre- 
 rary of state I have in my office the original charters of all irriga- 
 tion companies filed. I am the keeper of the great seal of the State 
 of Colorado. I have the original charters of certain ditch companies 
 before me now. These charters show filing as follows: 
 
 The charter of the Bessemer Irrigating Ditch Company was filed 
 on the 23rd day of May, 1888. 
 
 The charter of the Twin Lakes Land and Water Company was filed 
 on the first day of June, 1898. 
 
 The charter of the Rocky Ford Canal, Reservoir, Land, Loan and 
 Trust Company was filed on the 7th day of December, 1889. 
 
 1632 The charter of the Oxford Farmers’ Ditch Company was 
 filed on the 12th day of October, 1888. 
 
 The charter of the Otero Canal Company was filed on the 8th day 
 of March, 1890. 
 
 The charter of the Catlin Consolidated Canal Company, being a 
 consolidation of the Catlin ("anal and Land Company and the Fair- 
 mount Lateral Ditch and Reservoir Company, was filed for record 
 on the 17th day of November, 1892. 
 
 The charter of the Laguna Canal Company was filed for record 
 on the 4th day of July, 1892. 
 
 The charter of the Rocky Ford Ditch Company was filed for 
 record July 27th, 1882. 
 
 The charter of the Fort Lyon Canal Company was filed for record 
 on the 10th day of July, 1887. 
 
 The charter of the Arkansas Valley Sugar Beet and Irrigated 
 Land Company was filed for record on the 22nd day of April, 
 1901. 
 
 1632 The charter of the Lamar Canal Company was filed for 
 record on the 8th day of February, 1893. 
 
 The charter of the Graham Ditch Company was filed for record 
 on the 17th day of September, 1889. 
 
 The charter of the Colorado Fuel and Iron Company was filed for 
 record on October 21, 1892. 
 
 1634 Cross-examination. 
 
 By Mr. Beaman : 
 
 It is true that the corporation known as the Colorado Fuel and 
 Iron Company is a consolidation of other corporations which were 
 organized long prior to the date of the incorporation of that com- 
 pany, but I don’t remember the dates and names of the prior corpo- 
 rations which were merged in the consolidation, without making a 
 search. 
 
THE STATE OE COLORADO ET AL. 
 
 529 
 
 Cross-examination. 
 
 By Mr. Rogeks: 
 
 The certificate of incorporation of the Arkansas Valley Sugar 
 Beet and Irrigated Land Company is a certificate of a corporation 
 created under the laws of the State of New Jersey. 
 
 Cross-examination continued. 
 
 By Mr. Dawson : 
 
 I think it is true that many of the articles of incorporation which 
 I have just been asked about have been amended since the respect- 
 ive dates of filing given by me. 
 
 Garden City, Kansas, September 19-21, 1904. 
 
 1637 0. C. Emery, Garden City, Kansas. 
 
 Direct examination. 
 
 By Mr. Asmbaugh : 
 
 I live in Wichita, Kansas, and am a newspaper reporter. I am 
 acquainted with the Arkansas river at Wichita, Kansas, and the 
 Douglas Avenue bridge across the river in the city of Wichita. I 
 am acquainted with Complainant’s Exhibit A-41. It is a photo- 
 graph of the Douglas Avenue bridge across the river at Wichita, 
 taken on the 16th day of September, 1904, from the east side of the 
 river and the south side of the bridge. (Exhibit A-41 offered 
 
 1638 in evidence.) It is a correct picture of the bridge and the 
 Arkansas river as they were on that date. The bank that 
 
 shows in the middle of the picture at the left of the bridge is an 
 island, and there are some cottonwood bushes shown upon it. It is 
 about two-thirds of the way across the Arkansas river from the east 
 side. The channel of the river east of the island is at least two or 
 three times the width of the channel on the west side of the island. 
 The piles that show under the first abutment are the original piles 
 upon which the stone abutment was built when the bridge was put 
 in. At the time this picture was taken it was two feet from 
 
 1639 the water to the stone and the piling protruded above the 
 water about a foot. There is a wooden structure or base for 
 
 the stone pier about a foot thick on the top of the piles, making 
 about two feet all together. The wooden structure or grillage I 
 spoke of is laid lengthwise across the piling, up and down the river. 
 This is eight inches thick, and then on top of that are four-inch oak 
 planks, crosswise. This wooden grillage work is about one foot be- 
 low the stone structure. When the wooden work, constructed as 
 that is, shows above the surface of the water, the alternate wetting 
 and drying of the wood would necessarily shorten the life of it; it 
 couldn’t last for a great length of time. The alternate wetting and 
 34 — 7 
 
530 
 
 THE STATE OF KANSAS VS. 
 
 drying would cause it to rot more rapidly than if it was constantly 
 wet or constantly dry. The piling and the grillage show in the 
 second abutment in the same way as in the first one. The cost of 
 this bridge when originally constructed was about thirty-eight thou- 
 sand dollars. 
 
 1640 I have been in Colorado and have seen most of the ditches 
 and the head-gates along the Arkansas river up as far as 
 
 Pueblo 1 saw them during the month of August, 1904. Beginning 
 at Lamar, Colorado, I visited nearly all the dams and head-gates 
 and ditches from that point to Boone along the Arkansas river. I 
 visited the Amity dam first; it is located about nine miles up the 
 Arkansas river from Lamar. The dam is constructed principally of 
 timbers, with some cement work. I was unable to ascertain at the 
 time I was there the dimensions of the timbers because at that time 
 the water was flowing over the dam from side to side, with the ex- 
 ception of a portion near the center of the river, under which 
 
 1641 the water was flowing, which had been forced up through 
 the water by the flood. As near as I could ascertain, the dam 
 
 was built by driving piling into the bed of the stream, and spiking 
 timbers onto that and building as most dams along the river have 
 been built. From what I could ascertain, the Amity dam is the 
 most expensive dam and the most elaborate one on the river that I 
 saw between Lamar and Pueblo. To the best of my judgment the 
 Amity dam is about 500 feet long and extends from bank to bank of 
 tbe river. I was unable to measure the height of the dam, 
 
 1642 but as near as I could guess at it it must be about eight feet 
 high. It is as high as the top of the adjacent bank on 
 
 the south side. The cement sections that I spoke of were evi- 
 dently built in there for the purpose of allowing surplus water to 
 flow through, because they appeared to be a little lower than the 
 main body of the dam and were evidently built for the purpose of 
 allowing the water to flow over them rather than over the wooden 
 structure. Whether any of the ordinary flow of the river would go 
 over or around or through the dam would depend, I judge, upon 
 the condition of the head-gate at the ditch. At the time of the 
 ordinary flow in the river, if the head-gate of the ditch was open, 
 my opinion is that the water would flow into the ditch rather than 
 over the dam. At the ordinary flow of the river I think that none 
 of the water would go over the dam if the head-gate of the ditch 
 was open. It was certainly constructed for the purpose of taking 
 the whole of the river. 
 
 The next dam I visited above the Amity dam was about three 
 miles above the Amity, the Maxwell ditch, on the south side of the 
 Arkansas river. There are two ditches that leave the river 
 
 1643 at that point — one a short ditch, a private farmer’s ditch, 
 called the Kessee, and the other is the Maxwell ditch, which 
 
 is about thirty-five miles in length. Both are on the south side of 
 the river. One dam serves for both of these ditches. It was a 
 wooden dam about four feet high, extending from bank to bank of 
 
THE STATU OF COLORADO ET AL. 
 
 531 
 
 the river. The effect of the dam was to back the water up and force 
 it into the mouth of a small stream on the south side of the Arkan- 
 sas river called Mud creek, and the head-gates open out of this 
 stream a few rods from the river. This dam was so constructed 
 that none of the water could pass over or around or through the 
 dam at the ordinary flow of the stream, and it is my judgment that 
 in the ordinary stage of the river if both head-gates were open no 
 water would pass over the dam. 
 
 The next dam I examined is the Fort Lyon dam, located 
 
 1644 three miles above La Junta, on the Arkansas river. The dam 
 is built very much as the others that I have described. It 
 
 extends from bank to bank and is really one of the best dams I 
 visited. It probably didn’t cost as much as the Amity, but it is a 
 very substantial structure and certainly does the business for which 
 it was constructed. Examining Complainant’s Exhibit A-42, I rec- 
 ognize it as a correct picture of the Fort Lyon dam, taken on the 
 24th day of August, 1904, by a photographer at La Junta by the 
 name of Movement. (Exhibit A-42 offered in evidence.) The Fort 
 Lyon dam is constructed by driving piling into the bed of the stream 
 and spiking timbers across the piling from one side of the 
 
 1645 river to the other. Above, the timbers are given a slant 
 up stream, making a very substantial wooden dam. It ex- 
 tends from bank to bank, and is about ten feet on the lower side of 
 the dam from the bed of the river to the top. There was no means 
 for any water at an ordinary flow of the stream passing over, or 
 around or through the dam when the head-gates of the ditch were 
 open. That wooden work shown in the picture just below the dam 
 is a sort of apron upon which the water is supposed to flow when it 
 runs over the dam. I couldn’t say when the water runs over the 
 dam, only except in extreme high water or in an unusual stage of 
 the river. There was at the time I visited it certainly an unusual 
 flow of the river, but none that was flowing over the dam. I think 
 that water might and perhaps would have to flow over the dam 
 when the head-gates of the Fort Lyon canal were closed. I would 
 
 say that water would flow over the dam at the ordinary stage 
 
 1646 of the river when the head-gates were closed, because in 
 time it would necessarily have to pile up and back up suffi- 
 ciently to force itself over the dam, (objection), but this would not 
 be true if the head-gates were open, because the ditch is certainly 
 considerably lower than the bed of the stream of the river. In 
 that case the water would flow into the ditch rather than over 
 the dam. The head-gate of the ditch is wide enough to receive 
 all the ordinary flow of the river on the day I visited it. On 
 the day I visited it all the water that flowed in the river flowed 
 into the ditch. At that time, as to any flowing water down the 
 river below the dam, there was only a very small portion that man- 
 aged to seep under the dam. None of it flowed over at all. Ex- 
 amining Exhibit A-43, 1 recognize it as a correct picture of the Fort 
 Lyon head-gate and the wooden riprap or protection that is built 
 
532 
 
 THE STATE OF KANSAS VS. 
 
 just a few rods up the river from it. This picture was taken by the 
 same party, on the same day and upon the same occasion as the 
 other — the 24th day of August, 1904. (Exhibit A-43 offered 
 
 1647 in evidence.) This picture shows the water in the Arkansas 
 river above the Fort Lyon dam, above the head-gate of the 
 
 Fort Lyon ditch, showing that all of the water of the river is run- 
 ning through the head-gate into the ditch. The dam is shown at 
 the right side of the picture. Near the center of the land area is 
 seen a straight horizontal line there which marks the top of the 
 dam, although it does not show very distinctly. That black line run- 
 ning across the picture is a shadowy outline of a sand bar that shuts 
 off the water of the river from flowing over the dam. That sand 
 bar was about eighteen inches high above the surface of the water 
 in the river. The wood work that shows at the left side of the pic- 
 ture in the foreground is a sort of protection that has been built in 
 there bv driving piling and the spiking of timbers across to catch 
 the drift wood and other substances that might pile up against 
 
 1648 the head-gate and drift into the ditch and cause trouble. Just 
 above the wooden structure shown in Exhibit A-42, the 
 
 water was on that day about four feet deep. By noticing very 
 closely near the right end of that wooden work a man can be seen 
 standing in the water, the water reaching almost up to his arm pits. 
 The smooth surface in the body of the picture is water. Examin- 
 ing Exhibit A-44, I recognize it as another view of the Fort Lyon 
 head-gate and dam, taken from a slight eminence just above the 
 head-gate on the north side of the river, taken by the same person, 
 at the same time and on the same occasion as the other two — 
 
 1649 on August 24th, 1904. It shows in detail the lower side of 
 the head-gate from which is issuing the water shown in Ex- 
 hibit A-43, which flows through it from above, and on the left side 
 of the picture are the outlines of the dam, extending from bank to 
 bank. (Exhibit A-44 offered in evidence.) The Fort Lyon head- 
 gate is about 66 feet wide, and on the day I was there the water was 
 flowing through it about four feet deep. The Fort Lyon dam and 
 the head-gate are permanent structures, costly and expensive. 
 
 The next dam that I visited was the Rocky Ford dam, 
 
 1650 about three and a half miles below Manzanola. The Rocky 
 Ford dam on the day I saw it was considerably demoralized 
 
 because there had been so much water in the river that it had been 
 partially torn out, and men were working on it trying to hold back 
 the water as much as they could with sand bags and brush and every 
 other device. The dam itself I think is about six feet high and ex- 
 tends from bank to bank. There is no waste-way or sluice gate for 
 any water to pass off, around or through the dam. The head-gate 
 of the dam is located near the southern end of the dam, on the south 
 side of the river. I should say that the Rocky Ford dam was con- 
 structed for the purpose of taking the ordinary flow of the river 
 and forcing it into the canal and that it would do that if the dam 
 was in good repair. 
 
THE STATE OF COLORADO ET AL. 
 
 533 
 
 I found waste- ways or sluice gates constructed in some of the 
 canals that I saw, and they were usually a short distance below 
 
 1651 the head-gates. In that country they are called sand gates. 
 They are called sand gates because they open from below and 
 
 permit a flood of water to pass out whenever it is necessary to clear 
 out sediment and sand and debris that settles in the ditch, (objec- 
 tion), otherwise the ditch would fill up from the sand that washes 
 into it from the river. I visited only three of these sand 
 
 1652 gates, one at the Fort Lyon ditch, one at the Otero ditch and 
 one at the Bob Creek ditch. The sand gate at the Fort Lyon 
 
 ditch is simply an opening with a gate through which the water 
 might pass from the ditch back into the river or toward the river. 
 This sand gate was about a quarter of a mile below the dam. There 
 was no water flowing through it on the day I visited it, or but very 
 little, that forced its way through and under. None to speak of. It 
 was not open for that purpose. 
 
 The next head-gate that I visited was the Laguna head-gate, lo- 
 cated two miles below Manzanola, on the north side of the Arkan- 
 sas river. At the time I visited it there was no dam, although there 
 has been at some time sufficient to back up and hold back the sand 
 wash of the river to a considerable extent. The head-gate of the 
 Laguna ditch is constructed in a bend of the river at a point where 
 the current of the stream sets toward the northern bank and 
 
 1653 the water flows readily into the ditch, which is lower than 
 the bed of the stream. It is not necessary, therefore, at an 
 
 ordinary stage of the river, to have any dam at that point. From 
 the natural construction of the river and the construction of the 
 canal the water at ordinary stages of the river would go into the 
 canal without any artificial dam. 
 
 The next dam I visited was the Otero dam, about a mile above 
 Fowler. It is a wooden dam, built from bank to bank of the river, 
 about six feet high. Except when the water in the river is high 
 enough to rise above and flow over the dam, the construction of this 
 dam is of such a nature that it would divert all the water into the 
 ditch. 
 
 The next dam I visited was the Catlin dam, four and a half miles 
 below Fowler on the Arkansas river. It is constructed very much 
 as the Otero dam. It is a wooden dam extending from bank to 
 bank of the river and about six feet high. 
 
 1654 These measurements of the height of the dams that I have 
 given are from the bed of the stream below the dam. The 
 
 Otero and the Catlin dams are both built just below the mouths of 
 small creeks which put into the river from the south side, and the 
 water is forced up into these creeks a few rods and the head-gates 
 open out of the creeks. The effect of this dam is the same as that 
 of the Catlin, that is, to take the whole of the ordinary flow of the 
 river and force it into the canal. 
 
 The next dam I visited is at the Oxford Farmers’ ditch, a mile 
 and a half above Nepesta. It is a wooden dam, built very much as 
 
534 
 
 THE STATE OF KANSAS V&. 
 
 the last two — the Otero and the Gatlin. It is from bank to bank 
 and from four to six feet high. The effect of this dam must be to 
 divert the whole water of the river at the ordinary flow into the 
 ditch. 
 
 1655 The next dam I visited is the Rocky Ford Highline, 
 which is about six miles up the river from Nepesta. It is con- 
 structed very much as the others, a substantial wooden dam about 
 six feet high and from bank to bank, and at the ordinary stage of 
 the river, in my best judgment, all the water would be diverted 
 into the ditch if the head gates were open. 
 
 The next dam I visited is about two miles above Boone. It is a 
 small brush dam, called the Arkansas Valley dam. It is quite a frail 
 affair, and frequently washes out, I learn. The Arkansas Valley 
 ditch is only about eight miles long and does not require very much 
 water. It is one of the oldest ditches and usually gets a pretty good 
 supply because of the priority of its claim. On the occasion of my 
 visit there was a sufficient dam there to force the water into the 
 canal. 
 
 1656 The next dam I visited is the dam of the Colorado Land 
 Company, called the Bob Creek, three and a half miles above 
 
 Boone. It is one of the most substantial dams that I saw, although 
 it is not the highest. It is well constructed and built by driving 
 piling into the river and spiking timbers to it. It is permanent and 
 extends from bank to bank and is at least six feet high. The effect 
 of this dam would be, at the ordinary stage of the river, if the head- 
 gate of the ditch were open, to divert the water from the river into 
 the ditch. Upon the occasion of my visit, however, the head-gates 
 were not open and there was no water in the ditch. It was so con- 
 structed as to allow the whole of the ordinary flow of the river to 
 pass into the ditch. (Objection). There was a sand gate con- 
 structed in this ditch about a mile below the headgate, but as the 
 ditch was dry the sand gate was closed. This was the last 
 
 1657 dam I visited. All these visits were made in the month of 
 August, 1901. 
 
 Cross-examination. 
 
 By Mr. Dawson: 
 
 I went up the river partly for the purposes of examining these 
 ditches and their dams and head-gates. I didn’t examine the head- 
 gate and dam of the Garden City ditch, the Farmers ditch, the 
 Amazon ditch, the Great Eastern ditch, or any ditches in Kansas. 
 I was possibly discriminating against the Kansas ditches 
 
 1658 partly because I was interested in the Colorado ditches. 
 
 I live in Wichita, Kansas, and am a newspaper reporter. 
 I have lived in Wichita a little over two years and in Kansas since 
 1872. About three years of that time 1 have lived on the Arkansas 
 river. I am not interested in any lands lying in the valley of 
 the Arkansas river at this time, nor directly interested in farming, 
 
THE STATE OF COLORADO ET AL. 
 
 535 
 
 either by or without irrigation, in the Arkansas valley. My in- 
 terest in these Colorado ditches did not grow out of any personal 
 holdings of mine, but I was simply employed to make this investi- 
 gation and look it up. During the progress of this trial I have 
 been in attendance at practically all of the hearings as reporter and 
 representative of the Daily Beacon of Wichita. We have tried in 
 the paper at all times to give the evidence as it has been 
 
 1659 brought out fairly on both sides as matter of news, but as a 
 matter of policy and the paper’s standpoint on the proposi- 
 tion, it very naturally advocates the Kansas side of the proposition. 
 I never was on the river in Colorado below Pueblo until this last 
 trip in August that I have spoken of, so that my knowledge of this 
 particular country that I have been describing is simply the knowl- 
 edge gained during this visit in August, 1904. I have been through 
 Pueblo four or five different times prior to August, 1904 — -just passed 
 through. I have never lived on the Arkansas river anywhere in 
 Colorado. I had no reason to observe it or any particular knowl- 
 edge of the river in Colorado until I made this special trip last 
 August, nor had I lived on the river in western Kansas anywhere. 
 
 As to the information from which I made the statement in my di- 
 rect examination as to the ordinary flow of the river, I will 
 
 1660 say that my best judgment is founded on observation of the 
 river as I found it upon the occasion of my visit, which led 
 
 me to believe that it was abo/e the ordinary stage, decidedly. I 
 talked with people from Lamar to Pueblo, and invariably the state- 
 ment was made that this is an unusually wet season in Colorado, 
 that the rains have been unusually heavy, and at least four times 
 during my visit in Colorado it rained. And so I was led to think, 
 and I believe it was a reasonable conclusion, that the river was 
 higher than the ordinary stage. As a matter of fact, I wouldn’t say 
 from what I saw as to rainy conditions in Colorado that Colorado 
 was a rainy country, but from the same general observations I think 
 the ri ver was above the ordinary stage. I couldn’t put in cubic feet 
 per second of time what I consider to be the ordinary flow of the 
 Arkansas river at any point. I don’t know how much water it 
 takes, looking at it running in the stream, to make any given 
 
 1661 amount of cubic feet. I haven’t had any experience whatever 
 in measuring water nor in the construction and operation of 
 
 ditches, and I am not an expert on the subject of ditch or dam con- 
 struction for the diversion of water or as to the amount of water that 
 flows in a given stream. I have no personal knowledge as to 
 whether or not any given amount of water that I saw flowing in the 
 Arkansas river in August in Colorado was the ordinary flow, taking 
 it one month with another, nor as to whether it was the ordinary 
 flow taking it one year with another. 
 
 I don’t know the carrying capacity of any of these ditches in cubic 
 feet per second of time that I have referred to. When I said that 
 the Rocky Ford dam was about six feet high and was made so that 
 in ordinary times it would take all the ordinary flow of the river, I 
 
536 
 
 THE STATE OF KANSAS VS. 
 
 said “ to the best of my judgment,” because at the time I visited 
 the Rocky Ford dam it was partially torn out. I don’t know that 
 the carrying capacity of the Rocky Ford ditch is not to exceed 150 
 cubic feet of water per second of time, but 1 do know that I saw the 
 Arkansas river at three different points between Lamar and Pueblo 
 where there was not that much water in the river. This dam cer- 
 tainly stores the water in that it backs it up the stream and diverts 
 it into the ditch. It is true in the instance of the Fort Lyon dam 
 that the only result of that dam upon the natural flow of the river 
 is that back of the dam the level of the bed of the river has been 
 raised to a level with the dam, so that if the head-gate was shut down 
 I believe the water would flow on its course over the dam 
 1662 just as readily as if the dam had never been constructed. If 
 it is not true now that each of these dams that are constructed 
 across from bank to bank have resulted in the sand rilling in back 
 of the dam so that it simply lessens the fall of the river slightly and 
 raises the bed of the river so that it brings it on a level with the 
 head-gate or ditch, so that when it is raised it will allow water to go 
 in, that will eventually certainly be the result, because the drifting 
 sand will naturally pile up against the dam. That is the very pur- 
 pose for which they raise it, to make the level of the river higher. 
 I will say that I didn’t see any of these dams that were evidently 
 constructed for the purpose or that served the purpose of storing the 
 water in themselves, and yet were it not for the fact that the sand 
 and sediment and drift in the river washes in and fills up against 
 the dam it would have that effect. But it does wash in and fill up. 
 Even if it is stored, the water when the dam was first built before 
 the sand was washed in would he a very small amount, that is from 
 four to about ten feet, I guess, at the highest dam. The Fort Lyon dam 
 is about ten feet high, approximately. I think I placed the Amity 
 dam at about eight feet. I had to estimate that. I didn’t meas- 
 ure it. 
 
 1664 The picture of the Fort Lyon dam, Complainant’s Exhibit 
 A-42, is taken from the lower side of the dam. It is not true 
 
 that a man of my height can stand below the dam and see over the 
 top of it. I stood there myself and tried to look over the top of it. 
 That dam, from the apron to the top of the dam, is fully seven feet 
 in height, and it must be from there to the bed of the river very 
 nearly three feet more. As to whether the water in going over this 
 apron has dug out the sand and really made it lower than the bed 
 of the river naturally would he, and that the apron itself is practi- 
 cally on the bed of the river, tile picture here shows for itself. The 
 lower part of the apron is covered with sand. There is no consid- 
 erable or noticeable wash below the dam. 
 
 I believe my statement was that the Rocky Ford Highline was 
 another one of those dams that I thought were so constructed 
 
 1665 as to divert all the ordinary flow of the river. As to whether 
 the carrying capacity of that ditch does not exceed three hun- 
 dred feet, that it is something between two and three hundred feet, 
 
THE STATE OF COLORADO ET AL. 
 
 537 
 
 I know nothing about the carrying capacity of any of the ditches. 
 I don’t know that even the Bob Creek ditch has a carrying capacity 
 of not to exeeed five hundred cubic feet per second. The ordinary 
 flow of tile river that I speak of means to me the flow of the river 
 during that period of the year when there is no unusual flow of 
 water caused either by heavy rains or the rapidly melting snows, 
 but that period of the year in which just the ordinary flow of water 
 would naturally be found in the river. I do not necessarily mean 
 by that the minimum flow at the dryest time or the maximum flow ; 
 I mean the ordinary, average flow. 
 
 If it should be true as alleged in the bill of complaint here that 
 the ordinary flow of the river is as much as two thousand feet, or 
 even seven hundred as alleged in another part of it — cubic feet per 
 second of time — I am inclined to think that none of the 
 
 1666 ditches that I have referred to as being constructed to carry 
 all of the water would carry it. Upon the day that I visited 
 
 the Fort Lyon dam I was informed by the head-gate keeper that 
 they were taking something over seven hundred feet of water that 
 day. I will say the same thing for the Amity ditch — that they 
 were taking over seven hundred feet of water in the Amity ditch 
 the day I visited it, according to the statement of the head-gate 
 keeper. It is true that if seven hundred cubic feet per second of 
 time constitute the ordinary flow of the river, there are several 
 ditches I have mentioned as being so constructed as to take all of 
 the ordinary flow that would not carry that amount. 
 
 1667 I visited the Amity ditch and dam and head-gate on Tues- 
 day the 23rd of August, 1904. I visited the Fort Lyon dam 
 
 on the 24th of August. I visited two or three ditches in a day, 
 some of them. I visited the Maxwell and Kessee ditch on the 23rd 
 of August. At Manzanola on the 25th I visited the Laguna or 
 Holbrook ditch, and the Rocky Ford ditch, and then I went to Fow- 
 ler the same day and visited the Otero and Catlin ditches, on Au- 
 gust 25th. On the 26th, from Nepesta, I visited the Oxford Farm- 
 ers ditch and the Rocky Ford Highline, and on August 27th I 
 visited the Arkansas Valley ditch, that is, the small ditch, and the 
 Bob creek. So I put in the time from August 23rd to August 27th. 
 When I visited the Amity ditch it was running water, and that was 
 the lowest ditch down that I visited. On the same day I visited the 
 Maxwell ditch and that was running water. The Maxwell ditch 
 therefore was not taking all of the water on that day. Next day 
 I visited the Fort Lvon ditch and it was taking all of the water at 
 that time. I don’t know how the Amity ditch was getting 
 
 1668 its water that day, and I don’t know whether it was getting 
 it, because 1 didn’t visit it on the 24th, so that I don’t know 
 
 personally whether the Amity was getting water on the same day 
 the Fort Lyon was or not. I took particular pains to see whether 
 the Fort Lyon ditch was on that day allowing water to go out 
 through its waste gate or sand gate back into the river, and there 
 was not a drop of water that didn’t seep through it or force its way 
 
538 
 
 THE STATE OF KANSAS VS. 
 
 through the closed gate. That was on the 24th of August. But I 
 didn’t go back down that day to see whether the Amity was still 
 getting water. I have no theory to account for the fact that the 
 ditches lower down were getting water the same time that 
 
 1669 the ditches above were taking it all. As far as I saw those 
 ditches, the Bob Creek ditch was getting no water. That was 
 
 the only dry ditch I saw, and it was the highest up the stream. 
 There was water going by it at that time. As soon as its head-gate 
 was shut down the water moved down the river without any hin- 
 drance as soon as it rises high enough to pass over the dam. 
 
 My first experience with sand gates was when I went up here to 
 see those ditches. I had no particular experience with them then. 
 Every one that I have heard mention them at any place called them 
 sand gates. Whether they be called sand gates or waste gates, they 
 serve the purpose, according to my understanding of letting the 
 water go out of the ditch back into the river, though I didn’t fol- 
 low them to the river. It would let it leave the ditch, but there 
 were none of them large enough, that is, as large as the head-gates 
 or as wide as the head-gaces, so that it might empty the entire 
 
 1670 volume of water out of the ditch. Most of the large head- 
 gates are only partially opened. They are arranged so that 
 
 they can open them to take in a small or moderate or large amount 
 of water. It might be that the head-gate was so constructed as to catch 
 a very large amount of water at flood time when the canal or ditch 
 itself in ordinary times would not be entitled to all that head-gate 
 would take through it. As to whether a ditch’s right to take water, 
 or the water that it actually takes is governed by the size of its head- 
 gate, I am not very familiar with the irrigation laws and customs of 
 Colorodo in that particular. The only two ditches I saw where the 
 head-gates were open were the Amity and the Fort Lyon ditches and 
 the others were only partially open, so as to take only a small 
 amount what they could actually take. As to whether the Amity 
 canal has a priority that is older and goes ahead of a certain priority 
 which the Fort Lyon canal has, I know nothing about it, and as to 
 whether, even when there was not enough water in the river to 
 supply the Fort Lyon in full, it would be bound to let some of that 
 water go down to the Amity, I know nothing about that. I know 
 they were not doing it on the occasion of my visit. There was no 
 water going over the dam down the river at that time. The water 
 which the Amity was getting down below must have come from 
 some where besides going over the dam. I have heard quite a good 
 deal about return waters from irrigation while I was out in Colo- 
 rado. I couldn’t say vvhether I saw any of that at the Amity 
 
 1671 or not. It must have come from somewhere. As I went up 
 the river through Kansas I didn’t notice whether there was 
 
 any water in the river between here and the State line. I went in 
 the night, so I don’t know whether the water was running here on 
 the 21st or 22nd, whenever I went up. The first point at which I 
 saw the river after we left somewhere in the neighborhood of Ster- 
 
THE STATIC OF COLORADO ET AL. 
 
 539 
 
 ling, so that I could tell anything about whether there was any water 
 in it, was at Lamar on the morning of the 23rd. There was some 
 water in the river there at that time. That is below the Amity and 
 Fort Lyon dams and below all of those that I saw, and there was 
 some water flowing in the river there. When I saw the Amity there 
 was water running over its dam and it was not taking all the water 
 that could be had at its head-gate. There was a considerable vol- 
 ume of water passing over the Amity dam on the day I saw it, 
 
 1673 enough so that I couldn’t measure the dam with any accuracy 
 at all. I wouldn’t say that the water would average over 
 
 possibly four inches in depth the entire width of the dam ; that is, I 
 suppose, approximately, five hundred feet wide. I believe they told 
 us that that was the width of the dam. That is the lowest dam in 
 the river in Colorado that I saw. I don’t know whether it is the lowest 
 one down or not. 
 
 Referring to Complainant’s Exhibit A-43, showing the dam and 
 head-gate of the Fort Lyon canal, I couldn’t sav how deep the 
 smooth surface shown in the picture as water is above the dam, but 
 by looking at the picture, near the right side of the riprap you can 
 see a man standing in the water nearly up to his arm pits. The 
 water at that point is about four feet deep. I don’t think it is any 
 narrower where it gets to where that man is than it is from the 
 point at which the photograph was taken, a hundred yards above. 
 I don’t know whether he is standing in a hole or not. I asked him 
 to wade out there that I might see how deep the water was. 
 
 1674 Complainant’s Exhibits A-43 and A-44 were taken to show 
 the same depth and head-gate and taken on the same day 
 
 and practically at the same time, and however deep or wide the 
 water may be in Complainant’s Exhibit A-43, that same water is 
 all running in the Fort Lyon canal as shown in Exhibit A-44. 
 
 The picture marked Complainant’s Exhibit A-41, showing the 
 bridge at Douglas avenue, in Wichita, Kansas, was taken on Sep- 
 tember 16 of this year and shows that water does not come up to 
 the stone as laid in the abutment. 
 
 I heard the evidence given in this cause at Wichita, and the testi- 
 mony that early in the summer there had been a great flood 
 
 1675 in the Arkansas river at that point, and I also heard the wit- 
 nesses testify that it had been the habit fora long time to dig 
 
 out and haul away sand from the bed of the river just below this 
 Douglas Avenue bridge, and I know they have taken some sand 
 from the river since that time, but not so much as they had before, 
 because of an unusual flow of water in the river. The dredge is 
 still working there taking out sand part of the time, but it must be 
 a quarter of a mile below the bridge. 
 
 It is possible that the natural tendency of narrowing the channel 
 of the river, dredging the sand out below the bridge, and of this 
 large flood coming down there, would be to lower the bed of 
 
 1676 the river or dig out the sand so that in an ordinary flow (he 
 water would be at a lower level and expose more of the piling 
 
540 
 
 THE STATE OF KANSAS VS. 
 
 than it would if those things had not been done. I can’t say as this 
 would be the probable result. Where the channel is narrowed up 
 the tendency would be to scour out the river bed, and I understand 
 this is the way adopted by engineers, among other wavs, both in 
 harbor construction and the cleaning out of rivers, to deepen the 
 channel. As to whether these piles were driven to a level with the 
 sand or bed of the river at the time the bridge was constructed, the 
 custom in all such cases is to drive the piles as deep as the water 
 level in order even at the lowest stage of the water the wooden 
 
 1677 structure may be always below water. I think it is true that 
 the fact that the piles are now exposed indicates that by some 
 
 process the river has scoured out so that the sand or bed of the river 
 is lower than it was when the bridge was built. The surface of the 
 water also must necessarily be lower. 
 
 Mv object in going to Colorado was not primarily to ascertain 
 what Colorado was doing, but partially so, but to ascertain the con- 
 ditions of the river in Colorado was the object of my visit. I think 
 it may be said I went for the purpose of trying to find out 
 
 1678 what was the cause of the diminished flow on the lower 
 reaches of the river. 
 
 Q. Well, if that is true why is it that you went directly by 
 these ditches in Kansas that are to-day running water and made no 
 investigation of them and limited your investigation to Colorado? 
 
 A. Because the contention is between Kansas and Colorado in 
 this matter. 
 
 Q. But if your purpose was to investigate the true cause of the 
 diminished flow in Wichita and on the lower reaches of the river, 
 would not the circumstance of a ditch taking water in western Kan- 
 sas be just as important as the circumstance of a ditch taking it in 
 eastern Colorado? 
 
 A. I think it might affect it to some extent in the same way. 
 
 In reference to their being anv difference in the soil in western 
 Kansas and eastern Colorado, I would say the demarcation is so fine 
 that I would hardly be able to state that I had found a difference. 
 It shades off. I think that expression would cover it. I think I 
 can say truthfully that there is a decided difference between 
 1279 the soil at Lamar and the soil at Garden City and farther 
 east along the Arkansas river. I don’t think the soil here at 
 Garden City is practically identical with that up about Rockv Ford. 
 This is a decidedly looser soil ; that is, it is more sandy. There is 
 not so much adobe or decomposed shale mixed with it. I think 
 this soil would absorb more water. 
 
 Cross-examination. 
 
 By Mr. Campbell : 
 
 Of mv own knowledge I don’t know that there are ditches in 
 Kansas taking water from the Arkansas river for irrigation 
 1680 purposes. I have made no personal investigation. 
 
THE STATE OF COLORADO ET AL. 
 
 541 
 
 Redirect examination. 
 
 By Mr. Ashbaugh : 
 
 In reference to my statements about sand being scooped out of 
 the bed of the river below the bridge at Wichita, I will state that 
 the scooping out of that sand has not made any rapids in the river. 
 I think the surface of the river flows as it always lias and just as it 
 used to whether the sand is scooped out or not. (Objection.) 
 
 1681 It is the custom in building bridges of the kind of the Doug- 
 las Avenue bridge to put the piles down and cut them off 
 
 below the surface of the water, and I understand these were put 
 down in that same way. 
 
 I lived in the Arkansas valley in the summer of 1876. 
 
 The character of the soil as I saw it this summer from Lamar to 
 Pueblo varies, or rather gradually shades from a soil mixed with 
 gravel and decomposed shale at Lamar to Pueblo, at which point 
 the quantity of shale is greater than at Lamar. As you near the 
 mountains or foot hills the adobe soil or decomposed shale is more 
 pronounced. This adobe soil is a soil that is very fine when 
 
 1682 it is pulverized, as fine as ashes, and in places and under 
 most conditions is very compact. I should say that I didn’t 
 
 find any places in the valley of the Arkansas river from Lamar to 
 Pueblo where the soil in its natural state was saturated with water 
 so that vegetation would grow upon it. I found cactus and greese 
 root and sage brush and Russian thistles very plentifully where it 
 had not been cultivated. At most places this condition extends 
 down to the banks of the river in its natural state. I saw nothing 
 of the kind from Lamar to Pueblo that corresponds with what is 
 known as the first and second bottoms along the Arkansas river in 
 Kansas. 
 
 Recross-examination. 
 
 By Mr. Dawson : 
 
 In speaking of the cactuses, weeds and sage brush from Lamar to 
 Pueblo along the river I had reference to that part of it which 
 
 1683 was not under irrigation. That part which is under irriga- 
 tion appears to be very productive. 
 
 I lived at Sterling in 1876. Sterling is about thirty miles up the 
 river from Hutchinson. The dry season of that year was in July 
 and the flow in the river at that place and in that month was suffi- 
 cient to cover the river bed almost from bank to bank. There were 
 a few places where there were small sand bars. The water was 
 from four to five feet in places to a few inches in depth. That was 
 the only year I had any knowledge of the river at that point. 
 
 1684 I was little more than a boy at the time, and we frequently 
 went down there to swim that year. They always spoke of the 
 
 riveras being about half a mile wide. In speaking of the cactuses and 
 sage brush extending down to the river in Colorado I was speaking 
 of the natural state of the land before it was irrigated. 
 
542 
 
 THE STATE OF KANSAS VS. 
 
 F. L. Pierce, Garden City, Kansas. 
 
 Direct examination. 
 
 By Mr. Smith : 
 
 1685 I live at Lakin, Kearney county, Kansas, and have lived 
 there ever since April, 1879. I am fifty-seven years of age. 
 
 Lakin is twenty-three miles west of Garden City. My occupation 
 has been stock raising, farming and laborer. I live at the present 
 time and for a great many years have lived within half a mile of 
 the river, the house being in sight of the river. My pasture borders 
 on the river, and in attending to my stock I am obliged to 
 
 1686 see the river almost daily. As to the average flow of the 
 river at Lakin for the last four or five years as compared 
 
 with what it was when 1 went there first, there is but very little 
 water in comparison to what we had 25 years ago When I went 
 there the liver always had water in it the year round, every day, 
 365 days in the year. For the last four or five years there have been 
 months at a time that the river has been perfectly dry. This is 
 more especially early in the season. During the summer season 
 there has been but very little water. During the early years, along 
 in June usually, we had what we call in this country the June rise. 
 The river at those times would be full from bank to bank. During 
 the past few years we haven’t had that rise every year to any 
 
 1687 great extent. We began to notice this failing off in the flow 
 of the river about fourteen years ago — about 1890. It has 
 
 diminished gradually since. My best judgment would be that dur- 
 ing the last four or five years at least four months in the year the 
 water doesn’t run to amount to anything, and the flow during the 
 remaining months has gradually diminished. 
 
 I have had occasion to notice the level of the water in the wells 
 along the bottom. During my residence I have dug at least six 
 different wells since 1879 on ray place at Lakin. The water at 
 that time was about twenty feet from the surface. These wells 
 were dug as stock wells and about ten rods from the well I dug 
 in later years. In the later well I had to go a trifle deeper for 
 the water, and for a ranch well I had to go still deeper. 
 
 1688 The lay of the country would indicate that in that last 
 well water should have been struck before my first well, 
 
 but it wasn’t. Since then by moving the house and corrals I was 
 forced to dig two more wells in which I had to go still deeper for 
 water, and this spring my son-in-law on part of the same place, 
 dug a well and the water was at least two and a half feet farther 
 in the soil than it was when my first well was dug in 1879. 
 In 1881 I built the first fence around my farm in Kearney 
 county. In building my fence across the bottom I struck water in 
 nearly every post hole on the bottom. This spring I was repairing 
 the fence, whereb}' I had to dig post holes, and I struck water I 
 
THE STATE OF COLORADO ET AL. 
 
 543 
 
 think in only three different places, which showed that the 
 
 1689 water level had dropped. (Objection.) I have been in the 
 habit of cutting hay on the bottom lands since I have lived 
 
 there. I cut my first hay in 1881 or 1882. I was cutting hay last 
 week, wild prairie hay. As to the comparison in the yield of the 
 prairie hay on the bottom lands, there is not one-third as much hay 
 now on the bottom as there was when I first cut it in 1882. Then 
 it was very heavy, so heavy in places that I had difficulty to tell 
 where I had already cut, it was so thick. I had no trouble this year 
 in that respect. In 1882 I think we had about two hundred and 
 fifty tons on one hundred and fifty acres. Last year I had 
 
 1690 my hay baled and sold by weight. I had something like 
 eighty or ninety tons, perhaps, on one hundred and fifty acres. 
 
 That was about an average crop at the present time. In my judg- 
 ment 1 attribute the cause of this falling off in the wild hay crop to 
 the ground — the earth being dried up, or the water falling — leaving 
 the surface. There has been no change in the rainfall to account 
 for it along the bottoms. (Objection.) If anything, there is more 
 rainfall that stays on the ground now than there was twenty-four 
 years ago. In mv judgment the dropping of the water level on the 
 bottom is because there is not so much flow in the river to fill up 
 the porous soil. (Objection.) 
 
 Recross-examination. 
 
 By Mr. Dawson: 
 
 1691 There was a very small settlement near where I live when 
 I first located there, and it is very small now. The balance 
 
 of the country is fenced and is used for stock raising, feeding and 
 grazing. I first went into the country in 1879. I probably saw a 
 notice of this litigation between Kansas and Colorado in the paper 
 since it was instituted. 
 
 I have never constructed any irrigation ditches except 
 
 1692 laterals from ditches that I watered from. These laterals 
 draw their supply from the Amazon and Great Eastern 
 ditches on the north side of the Arkansas river. The Amazon 
 
 1693 canal is about 22 feet wide at the bottom, and it will probably 
 carry two and a half feet of water — perhaps three feet. I don’t 
 
 know about the grade. I think it is about eighteen inches to the 
 mile, and the ditch is forty or fifty miles long. The water is used 
 
 1694 for irrigation. The Amazon ditch coversseveral thousand acres 
 of land. I have about four hundred acres in my place and 
 
 there are three hundred acres broken. Sand creek cuts off a piece that 
 it is impracticable to get the water to, and also the Amazon cuts the farm 
 in two so that some land is above the ditch. 1 have no land 
 
 1695 of my own from which I cut wild hay. I rent one hundred 
 and fifty acres. I don’t irrigate this rented land ; it lies along 
 
 the river bottom. I do irrigate the three hundred acres of my own 
 which I have under cultivation, or I have irrigated it. Where I 
 
544 
 
 THE STATE OF KANSAS VS. 
 
 dug the well, the land is about twenty feet higher than the 
 
 1696 river, and I went down about twenty feet to strike water. 
 That was the first well. It was a mile from the river. The 
 
 second well was only twenty rods from the first one, just about the 
 same distance as the first from the river. In the second well I went 
 about twenty feet to water also. That was dug about 1885. The 
 third well is half a mile from the first well, and nearer to the river, 
 In the third one I went twenty-two feet to water. I don’t think there 
 is any great difference in the elevation of the ground at the third 
 well and at the first two. If anything, the third well is a 
 
 1697 little lower than the first and second. The ditch has been 
 running across the land near the third well since 1881. The 
 
 1698 well, however, was dug in 1885. The ditch was not in ex- 
 istence when I dug the first two wells. I don’t irrigate the 
 
 ground around the well. The nearest point irrigated is ten rods. I 
 do irrigate ground higher than the wells from the Amazon ditch. 
 Tor a time after the construction of the Great Eastern ditch there 
 seemed to be a rise of water in the well, but since that it has 
 
 1699 subsided, but the ditches have continued to be used in the 
 years since then. I am not now using the three first wells I 
 
 dug. I just let them go. Being open wells, two of them I covered 
 up. I covered up or destroyed one well in the latter part of 
 
 1700 the ’80 s. Since that I don’t know how high up the water 
 would come in that well. The other well lasted, I think, 
 
 until 1896, perhaps later, when I covered that up and put down a 
 new well. Since 1896 I don’t know how high the water would come 
 up in that well, but at that time I bored or drove down a well close 
 by the first two. In driving for water I had to go about twenty-two 
 feet, something like that. 
 
 1702 Part of my land is under the Great Eastern ditch and 
 gets its water from that ditch. The Great Eastern heads 
 
 in Kearney county about three miles west of Hartland. It is, I 
 believe, 20 feet wide at the bottom, two and a half feet deep, and 
 about two and a half feet fall to the mile, I think, where it runs 
 through my place. I am acquainted with the ditch for about twenty 
 miles. I don’t know how much longer it is. It covers several 
 
 1703 thousand acres of land and is used for irrigation purposes. The 
 flow of the water in the river this year is better than it was last 
 
 year. There is more. My crop has not been as good this year as it 
 was during the earlier years, and there has not been so much water 
 in the river. There has not been sufficient water in the river to 
 hardly cover part of the bed at times. Where I cut this native 
 
 1704 hay the ground may be two and a half feet above the water 
 in the river. On the uplands in my vicinity the grass is bet- 
 ter now than it was in 1879. Before 1879 these prairies were burned 
 over, from the Smoky clear to the Arkansas river, by prairie fires. 
 
 We have grass enough now to make a prairie fire, but since 
 
 1705 they put instock and fenced the land they have kept the fires 
 out, therefore the grass on the upper plains is a great deal 
 
THE STATE OF COLORADO ET AL. 
 
 545 
 
 better tiow than it was in 1879. In the early days the stock ran on 
 the open range and tramped it over and ran over the whole country. 
 At the present time these large prairies are fenced in large pastures, 
 with wind mills all over the country. Small bunches of cattle are 
 kept all through here. I expect there is more cattle kept in 
 
 1706 western Kansas to-day, west of Dodge City, than there was in 
 1879. They farm the upland now in my neighborhood and 
 raise the best wheat, oats and barley that is raised in the 
 
 1707 country, without irrigation. They use irrigation some in the 
 valleys. They raise these crops without irrigation clear 
 
 through on the uplands, and they have been doing that at least ten 
 years. I think there is less acreage of upland under cultivation now 
 than formerly. Fifteen years ago every quarter section of that 
 county on the north side of the river was taken up by settlers. They 
 broke up small pieces and went in with good heart to raise crops. 
 They were not successful and abandoned the country. They couldn’t 
 raise crops because of the small amount of rainfall. Some stuck to 
 the country and have raised crops. They have farmed year 
 
 1708 after year and have raised good crops, but not a sure crop. 
 They get a crop oftener than they did in the early years. 
 
 This must be because of more rainfall ; that is, our rains are differ- 
 ent now than twenty years ago, better distributed throughout the 
 season. I attribute this to the settlement and improvement all along 
 the valley. The irrigation of large tracts of land in Colorado may 
 have tended to equalize the rainfall here. After those first people 
 settled some fifteen years ago the land returned to its wild 
 
 1709 condition. I saw that country settled and depopulated three 
 different times. In 1879 the whole country about Lakin was 
 
 taken up, and they went away in 1880 and 1882 and 1883. In 1886 
 the settlers again came in there and made another effort and were 
 driven out by dry weather. In 1889 again settlers came north of 
 the river. In 1887 the two crops of settlers that had been 
 
 1710 here before had practically all gone out. Again, in 1889 and 
 1890, they all left, with the exception of a very few. They are 
 
 not there now. There are only a very few people there that amount to 
 anything. In our two northern voting precincts of Kearney county 
 the voting population, I believe, is only about fourteen. 
 
 1711 There is more water in the river this summer than for some 
 years past — a better flow. We had some water in June, noth- 
 
 1712 ing like what we used to have, and in July the flow of water 
 in the river was fairly continuous. In August, this year, 
 
 there was a little water, but not what we might call running water. 
 There was a little water running past my place in the river all dur- 
 ing the month of August. The Amazon and Great Eastern ditches 
 were both carrying water all during the month of August, practi- 
 cally. There were days when they had very little. They were car- 
 rying a light supply of water. These ditches were neither there in 
 1869. I think the Great Eastern got as far as my place in 1881. 
 
 35—7 
 
546 
 
 THE STATE OF KANSAS Vfc. 
 
 They had some trouble when they got to Sand creek ; it runs 
 
 1713 across my place. The amount of water in the two ditches 
 at the present time would not have affected the river in 1879, 
 
 in my estimation. It was a pretty good river in 1879. I have 
 crossed it on the ice. I didn’t see the river in 1877. I was not then 
 in the State. Since I came the river was never dry until it 
 
 1714 got away up into the ’80’s. 1880 was one of the driest sea- 
 
 sons I have ever experienced on the river, but I know from 
 
 crossing tiiat the river was never dry during that year. At times 
 the water got shallow, but never dry. In 1880 there was just as 
 much water there in the Arkansas river as in 1879. The drouth 
 did not affect the river. 
 
 I think the snow in the mountains has something to do with the 
 river, more than the rainfall here. There is not a drop of water 
 that I know of from Bridge creek, in Hamilton county, to Coon 
 creek, I think, in Edwards county, where there is any water goes 
 into the Arkansas river from the north. It goes into the ground, 
 but I never as yet have seen the time but what the water that fell 
 on the high grounds was absorbed by the earth. The fall of 
 
 1715 the ground is toward the river. I am one of the people who 
 believe in an underflow, and if the water goes into the 
 
 ground and the fall of the ground is toward the river it must 
 go toward the river after it gets under the top of the ground, 
 but there was not enough of it to affect the river. When there 
 were heavy rains in Colorado or in the mountains, as at the head 
 waters of the Purgatoire or Arkansas, we used to have a big 
 
 1716 flow of water here, and even do now from the Purgatoire, but 
 the water that comes from the rainfall up there only lasts a 
 
 short time. The Purgatoire comes in below a great amount of 
 ditches in Colorado, and perhaps below all of them. It comes from 
 the south, from Raton, and I don’t know of anything that has par- 
 ticularly interfered with the flow of water in the Purgatoire 
 
 1717 and its supply to the river. I have been up in Colorado, but 
 never any farther west than up about Holly. I know in a 
 
 general way from talk and reading that they were irrigating in 
 Colorado for the last ten or twelve years, and I have never made 
 any complaint or lodged any objection against Colorado doing this, 
 and have no personal kick at this time. I am probably raising as 
 good crops as I was seven years ago, and the land is worth every bit 
 as much to the acre as it ever was. It is worth a little more. 
 
 1718 The lands of my neighbors have not depreciated. This year 
 the crop has been a failure on account of the grasshoppers. 
 
 In boom times the land went away up extravagantly, but outside of 
 boom times I don’t think they would take any less now for 
 
 1719 land than it has been. If the Amazon or Great Eastern ditch, 
 or either of them, were taken away or prevented from run- 
 ning water the land would be valueless except for grazing purposes. 
 Land under ditch is worth about twenty-five dollars an acre, and 
 outside of the ditch about three dollars an acre. There is a differ- 
 
THE STATE OF COLORADO ET AL. 
 
 547 
 
 ence of say twenty dollars. In this part of Kansas along the Arkan- 
 sas river the right to irrigate with water from that river is of vital 
 importance. This is generally recognized as a fact by our people, 
 who look forward to a larger use of the water for irrigation in some 
 way, and they are making efforts constantly along that line. 
 
 1720 It is my idea that if this suit would cause the Colorado irri- 
 gators to remove their dams from the river that would give 
 
 our people a chance to get more water for irrigation. (Objection.) 
 I do not object to Colorado using the water as long as we get 
 
 1721 water for irrigation. (Objection.) I would not want the 
 dams which have been constructed by Colorado irrigators 
 
 taken out simply to let the water run away. (Objection.) Not just 
 to let the water run down. If it be true that the issue in 
 
 1722 this case is that Kansas wants to establish the principle that 
 no water shall be taken out of the river for irrigation pur- 
 poses but that the water shall be allowed to run down the river to 
 
 its mouth, I am not interested in that sort of a proposition. 
 
 1723 I have no interest in the Amazon ditch. I merely rent the 
 water from them. 
 
 The Great Eastern ditch is the one that Senator Swink of Rocky 
 Ford is interested in. I believe he is one of the big stockholders, 
 and it is owned by several of the boys here about this town (Garden 
 City, Kansas). I have no interest in it, but I rent water from them. 
 I took my land up in 1879 ; that is, I took steps to take it, but if 
 that Great Eastern ditch had not headed across ray land I 
 
 1724 should have left years ago. I couldn’t have stayed. It was 
 because of the existence of the ditch there that I went ahead 
 
 and proved up on the land and took title from the Government. 
 
 Cross-examination. 
 
 By Mr. Campbell : 
 
 The wells I have testified to are about twenty-three miles from 
 Garden City by the railroad, and in the neighborhood of forty miles 
 from the Colorado State line. The Amazon ditch heads near 
 
 1725 Lantry, Kearney county, Kansas. It seems to me that ditch 
 was not built until along in the latter part of the ’80’s. The 
 
 water has been running in it more than ten years, and it has been 
 used for irrigation purposes during that time and ever since the 
 water has run in it. There is not as much water for the ditch 
 
 1726 now as when it was constructed, but it will carry as much as 
 it did then if it were cleaned out. There is not as much water 
 
 in the Arkansas river now for that ditch as there was when it was 
 constructed. When it was constructed they could fill the ditch. At 
 the present time they take all the water they can get and cannot fill 
 it. When there is water in the Arkansas river they can get it in 
 the ditch when the dams are in running order, but there is not so 
 much water in the river as when they first opened the hole into it. 
 
548 
 
 'ritti state oP fcANSAs VS. 
 
 I get water from both the Amazon and Great Eastern. The 
 
 1727 Great Eastern was constructed in 1881 and water has been 
 running in it ever since it was constructed, comparatively 
 
 speaking. There is not as much water for it now as there was 
 then. I cannot tell how much it has decreased, but to a great 
 extent. There is nothing near the flow in the river — not half 
 as much. There can’t be when the river is dry five months 
 out of a year. Then it was running all the time. What I say in 
 regard to the Great Eastern ditch applies also to the Amazon 
 ditch. I know of other ditches constructed in Kansas to take water 
 out of the Arkansas river for irrigation purposes, namely, the Min- 
 nehaha. They didn’t get water enough up the river so they changed 
 it into the Western. The Minnehaha was constructed 
 
 1728 before the ditch on the north side. Ours is the Great Eastern, 
 on the north side. That is another ditch on the other side of 
 
 the river — the Western. They were constructing the Western in the 
 early ’80’s — 1882 or 1883. I can’t tell when the water was turned 
 into the ditch ; perhaps about 1885. The first ditch I ever heard of 
 was this one that heads up here. I guess now it is called the 
 
 1729 Kansas ditch, right west of Garden City. It was gotten out 
 for manufacturing and one thing and another, and when it 
 
 got to a certain point they commenced irrigating from it. It was 
 constructed as early as 1880, and perhaps 1879. I think water was 
 turned in as early as 1880. There is another ditch that comes out 
 very near Deerfield; it must have been constructed as early as 1881. 
 The water was turned in the same year or directly after. There is 
 a ditch at Kendall and one at Syracuse and one at Coolidge. 
 
 1730 They have been used, I think, about fourteen or fifteen years, 
 along there, for irrigation purposes. 
 
 Redirect examination. 
 
 By Mr. Smith : 
 
 When the Amazon and Great Eastern ditches were first constructed 
 they had a pretty steady flow of water. It continued down to about 
 1890 or 1891. For many years after 1890 there was practically very 
 little water in these ditches, especially in the growing season. Dur- 
 ing July, August and September, there was practically none; in 
 fact up until this year that has been the case. We had hard work 
 to get water. We had to take it in turns. This is the first season 
 we have had water for quite a number of years during the 
 
 1731 growing months. There has been more water in the river 
 this year and more rain this season than heretofore for some 
 
 time. There have been more floods this year in (he river. Prior 
 to this year these ditches have been of very little value for irrigation 
 purposes, except in the spring, and not early in the spring then. 
 The first water that had been in these ditches for several years was 
 about Decoration day. We would irrigate our alfalfa once or twice, 
 and that is about all that we could do. Last season I irrigated but 
 
THE STATE OF COLORADO ET AL. 
 
 549 
 
 once. If these ditches were carrying the water and had the flow that 
 they had when they were first constructed our lands would be of far 
 greater value than they are at the present time, and the fact that 
 the ditches do not get the water has rendered our land less valuable 
 than it would have been if we could have kept up our irrigation with 
 a full supply. 
 
 Recross-examination. 
 
 By Mr. Hayt: 
 
 1732 If these ditches have been in litigation and the subject of 
 foreclosure proceedings I know nothing about it. 
 
 Q. Is it not a fact that the ditches were allowed to fill up and were 
 not cleaned out for a number of years? 
 
 A. There has been considerable sediment gathering in some of 
 the ditches, yes, sir ; but there has been no time when there has been 
 water in the river, and the headgates have been in shape, but what 
 they made an effort to turn in water. 
 
 Q. But very little effort was made towards repairing the ditches 
 during the ten or twelve years prior to the last two or three years? 
 Is not that true ? 
 
 A. The Amazon ditch has always been in repair, I think ; the 
 other, the Great Eastern, or whatever it is, I think there has been no 
 year when they were trying to run water but what they have run 
 water in that ditch. There was one year that there was no water 
 run because Ed. Russell determined to make the railroad company 
 make some concessions to the ditch and sell land cheaper or 
 
 1733 something of that kind, but that was years ago when there 
 was no water in the river. 
 
 The farmers became the owners of the Amazon ditch this spring. 
 The other ditch the farmers don’t own ; it belong- to a company. 
 There has not been a dollar’s worth of work put on the Amazon 
 ditch this season, since the farmers acquired title. The Great East- 
 ern, after Swink and some Garden City persons bought it, they went 
 to work and put on several thousand dollars’ worth of improvements. 
 Prior to that time it was in poor condition, but then water was run 
 through it last season. I know nothing about the Garden City 
 ditch. 
 
 1734 Jacob B. Stillwagon, Garden City, Kansas. 
 
 Direct examination. 
 
 By Mr. Ashbaugh : 
 
 I live twelve miles west of Garden City. I am seventy-two years 
 old and have lived there about twenty-two years. I came in 1882. 
 I own 360 acres of land which is situated one mile along the 
 
 1735 river on the north side. One hundred acres of it is bottom 
 land. The bottom is from forty to sixty rods wide. Iam 
 
550 
 
 THE STATE OF KANSAS VS. 
 
 somewhat acquainted with the flow of the Arkansas river from the 
 year 1882 down to the present time. During the first ten years that 
 I knew it we generally had through the summer time — the river bed 
 would be from half full to full, sometimes out to the banks. During 
 the last few years, with the exception of 1904, the water has been 
 generally very shallow, except this year. This is an unusual year 
 on account of so many water spouts. Last year the water was a little 
 lower. There was not so many water spouts up there. We always 
 get them down here, if we don’t get anything else. Last year 
 
 1736 the river was dry for about eight months, I guess — from about 
 August to some time in May. From August, 1903, to May, 
 
 1904, the river was dry, with no flowing water in it at all. The water 
 has decreased upon my bottom lands I presume about two feet. The 
 water don’t rise up like it used to. In low spots the water used to 
 stand on the ground where there was a little slough, you know. 
 There has been no water standing in those sloughs for about eight 
 or nine or ten years. The water level has been about two feet lower 
 during the last year, and, it has been that way for a number of years. 
 I used to mow my bottoms every year until the last eight or ten 
 years, when I don’t mow itbecause I don’t have water enough to make 
 it grow. I grow mostly cane on there. That will grow most any- 
 where. We also had alfalfa, wheat, oats and other grains. Alfalfa 
 I raise on the uplands. I have about five acres on the bottom 
 
 1737 lands. I have known of others having alfalfa along the 
 Arkansas river on the bottom lands also. The last six or 
 
 seven years the crop has been a great deal lighter, because, I expect, 
 we haven’t had the amount of water in the river that we used to 
 have. 
 
 1 have observed the current to the underflow. I know where the 
 water used to run pretty lively it don’t run, hardly, any more. I 
 could see where it ran out on the bank underneath it. I call it an 
 underflow because the water runs out from under the bank. I have 
 about 250 acres of land that I could irrigate. 
 
 1738 Q. How has the water been in the ditches for the last three 
 or four or five years, excepting the year 1904? 
 
 A. Well, I am under the Great Eastern, and we haven’t had any 
 water until this summer. We didn’t have any water last year, nor 
 none the year before, but this summer we have had some water. 
 
 Q. How was it in 1903? Did you get sufficient to insure a crop 
 at all or to mature one ? 
 
 A. Well, we were just as sure as the summer came around. We 
 always raised a good crop. 
 
 Q. Well, in 1903? 
 
 A. Oh, 1903 ? No, sir. Of course we raised — all the crop we 
 raised was — well, we didn’t irrigate. It was by the heavy rains we 
 had here. 
 
 Q. Well, could you irrigate in the year 1903 with the amount of 
 water you got? 
 
 A. We didn’t get any. 
 
TH E STATE OF COLORADO ET AL. 
 
 551 
 
 Q. How about 1902? 
 
 A. It was about the same way. 
 
 Q. Now, did vou get water sufficient in those irrigating ditches 
 under which your land lies when they were put in there in the first 
 place? 
 
 A. Yes, sir, all we wanted. 
 
 Q. For how many years or down to what time? 
 
 A. We had water from the Great Eastern from 1888 to 1895. 
 
 Q. Since 1895 you haven’t had any, have you ? 
 
 A. No, sir. We have had some. 
 
 Q. But did you have enough to supply your wants at all ? 
 
 A. Well, we got enough to water once. 
 
 Q. When did you first notice the underflow falling? 
 
 A. I think about 1897 or 1898. Well, I think it was in the win- 
 ter of 1898. 
 
 Cross-examination. 
 
 By Mr. Hayt : 
 
 1739 I first located where I am now in 1882. I formerly lived 
 in the eastern part of Kansas, in Allen county. I lived there 
 
 for twenty-six years. I came there in 1857 and settled on the New 
 York Indian lands, and consequently the land was not on the market 
 and so we didn’t make much improvement. We just kind 
 
 1740 of loafed around. We were not sure whether we would get 
 the land or not. I commenced farming in 1865. At the 
 
 time I moved into Finney county I came here witli the expectation 
 of raising crops bv irrigation. I came here from California for that 
 purpose. I had observed irrigation in California before locating in 
 this county. I saw in the Kansas City Journal that they were 
 farming here by irrigation and what they could raise, and like a 
 great many others I thought I would come and make a stake. The 
 fact that they were advertising that crops could be grown here in 
 profusion by irrigation is what brought me here. 
 
 1741 I was in Colorado in 1896, but I didn’t know of irrigation 
 in Colorado prior to the time I located here in 1882. It was 
 
 seven or eight years after that before I heard about the irrigation 
 in Colorado. At the time I located I didn’t know they were taking 
 water out of the Arkansas river above for the purposes of irrigation. 
 On my return from California I came by the Southern Pacific, and 
 came through La Junta. When I came here I didn’t know any- 
 thing about the rain here. I knew it was middling dry. The pur- 
 pose for which I want water at the present time is for irri- 
 
 1742 gation. If it was not for the water I would get out just as 
 quick as I could, because you can’t raise crops without you 
 
 have the water. In other words, a farmer can’t live by farming in 
 this community unless he has water to irrigate his land. 
 
 1743 I am the owner of lands abutting on the river, and I am 
 interested to get the water, if I can get it, for the purposes of 
 
552 
 
 THE STATE OF KANSAS VS. 
 
 irrigation. I am not interested in keeping the people of Colorado 
 from getting the water. I believe there is water enough for 
 
 1744 all if it is used right. (Objection.) The way I understand 
 this suit, it is to divide up the waters between Colorado and 
 
 1745 Kansas for the purpose of irrigation. (Objection.) Yes, in 
 answer to a question propounded by counsel I said that I 
 
 called this water in the ground an underflow, because it runs out 
 from under the bank. That is correct. On my land it runs out 
 close to the lines of sections 4 and 5. That is where it runs out the 
 strongest. There is an island between me and the river; it is where 
 the river used to run a good many years ago and now there is a large 
 island formed there and the river runs on the other side, and where 
 this old river bed used to be the underflow runs out from under that. 
 It runs out from the old river bed into the river channel and gets 
 back into the river about two hundred yards east of that, and the 
 reason I call it an underflow is because it runs out at these points. 
 It runs the whole year round. 
 
 1746 I take water from the Great Eastern ditch for irrigation. 
 There is another ditch that runs right through me for a mile, 
 
 called the Kansas ditch. It heads about two miles west of me and 
 about thirteen miles from here. I should judge that the Great 
 Eastern ditch was commenced about 1880 or 1881 and they were 
 working on it when 1 located here. We have no water rights yet 
 on that ditch. I am not an owner of the ditch in any way nor a 
 stockholder in the company. I could irrigate about 240 or 250 acres 
 from that ditch. During the first years I was there I irrigated 
 about 40 acres. That was the first irrigation I used, about 
 
 1747 1888. This year I irrigated more than that — I presume be- 
 tween 80 and 90 acres. After the water commenced to run, 
 
 I think it was in about July of this year, there was water in the 
 ditch all along until about two weeks ago. I am raising cane and 
 alfalfa. I had in some other crops but couldn’t get the water and 
 they went back. I had in 90 acres of wheat, 60 acres of barley, 
 about 35 acres of oats and 15 acres of squashes and melons together. 
 They dried out. because they didn’t get any water. We had some 
 grasshoppers up here. I didn’t seem to have as many as some of 
 my neighbors, but they have been pretty bad in this neighborhood 
 this summer and have destroyed the crops generally. 
 
 For the last two years the Great Eastern ditch was out of 
 
 1748 repair, but now it is in first class order. I think there was 
 a change in the company about a year ago. That change 
 
 did not result in the farmers in this locality becoming the owners 
 of that ditch. The last two or three years I don’t think the land 
 up there has increased very much in value on account of the scar- 
 city of water, but prior to that time land was advancing and we had 
 plenty of water. Generally there has been an advance in price 
 since I located there, because when I first located there there was 
 nobody living there much. This last year and 1902 it seemed very 
 
THE STATE OF COLORADO ET AL. 
 
 558 
 
 discouraging because we thought we were not going to get 
 
 1749 any water. I consider my land worth twenty dollars an acre 
 at this time. I attribute the value to the improvements that 
 
 are on the land in the way of ditches and all kinds of improve- 
 ments. It wouldn’t be of much value if you didn’t have the water, 
 but with plenty of water to irrigate it is worth twenty dollars an 
 acre or more. I have seen the river dry in 1896, but 1 don’t remem- 
 ber how long. I was up in Colorado that year and it was dry 
 
 1750 at La Junta. I believe there was lots of water in the river 
 in 1884. I don’t remember the river being dry about 1884 
 
 between Dodge City and the Kansas line. I know I had a bunch 
 of cattle and I drovD them to the river every day. The river might 
 have been middling low about that time, but 1 know I had to cut 
 ice in the winter. I don’t believe I ever saw it so low during those 
 early }^ears that there was not much water running in the river, be- 
 cause in those days I lived close to the river. Generally in the 
 winter time up to about 1895 there was always considerable water 
 in the river. I never remember of its being as dry as it was last 
 winter, it gets low every once in a while, but it comes up 
 
 1751 again. Of course it gets low when you are using all the 
 water up in Colorado. That is the reason the water is low. Of 
 
 course we don’t get it. 1896 was the first year I remember the river 
 being low in the summer time. I lived within 200 yards of the 
 river then in the early days. Previous to 1895 there was 
 
 1752 always lots of water. As near as I can remember the flow 
 averaged about the same during the first five years I was 
 
 there as it did the five years from 1890 to 1895. 
 
 Cross-examination. 
 
 By Mr. Campbell : 
 
 The Great Eastern ditch, from which I got water for irrigation 
 purposes, I don’t know its exact length. I presume it must be about 
 fifty or sixty miles from the head to the end, and about 32 to 40 feet 
 wide at the bottom, and is about three and a half to four feet 
 
 1753 deep. I believe this ditch irrigates betweeu seven and eight 
 thousand acres; that is what they can irrigate from it. The 
 
 3 T ears when the most land was irrigated were from 1889 to about 
 1890, and it is less now than it was in 1895, because a great many 
 people have moved away. A great many people moved away because 
 they didn’t get the water. I can’t tell how many acres this 
 
 1754 ditch irrigated in 1895. I have heard that between seven 
 and eight thousand acres are irrigated from the Kansas ditch, 
 
 which is about thirty-five feet wide. There is not so much land ir- 
 rigated by that ditch as there was in 1895, the reason being that so 
 many have moved away because they didn’t get water, the volume of 
 water in the river decreasing. 
 
554 
 
 THE STATE OF KANSAS VS. 
 
 Redirect examination. 
 
 By Mr. Ashbaugh : 
 
 1755 The value of our land is not as great as it would be if we 
 had as much water now in the irrigating ditch as we bad the 
 
 first year or two that the ditch was operated. It would be worth as 
 much again. The cause is the decrease of the water in the river, 
 because it is used up further west. We first noticed the river begin- 
 ning to decrease in volume in 1897 or 1898. (Objection.) I don’t 
 know when the ditches in Colorado were put in. I judge it may 
 have been in 1894 or 1895, as much as I know. The river de- 
 creased immediately after they put the ditches m in Colorado. (Ob- 
 jection.) 
 
 1756 George H. Reeve, Garden City, Kansas. 
 
 Direct examination. 
 
 By Mr. Ashbaugh : 
 
 I live in Garden City, Kansas, and at the present time am register 
 of deeds for Finney county. I am a farmer by occupation. I have 
 lived in Finney county since October 5th, 1880. I have had several 
 farms in the county. I have rented some land on the river bottom 
 adjoining the river ; that is, in the early ’80’s. I am somewhat ac- 
 quainted with the flow of the river during the dry season of 
 1557 the year ever since I have been here. As to the average flow 
 of the river during the dry season of the year, the river used 
 to almost continuously have water in it through the summer season 
 and the winter too. There was such an occurrence in the early years 
 as the June rise, usually about the first of June, and it lasted from 
 two to six weeks, that is, until the river would go down to its natural 
 flow. They usually came very suddenly, but they would go down 
 very gradually. During the last ten years, excluding the year 1904, 
 during the same seasons of the year, we have had no flow except 
 through freshets. There is no natural flow any more. We have 
 our freshets, and when that passes down the river it is dry, except 
 in the winter we sometimes have a little water during the 
 1758 freezing cold weather. I don’t think the June rises are as 
 large as they used to be, but the greater difference is in the 
 times when we have the rises. We have no water at all only from 
 freshets now. The river was dry from July or August, 1908, until 
 May, 1904. It was absolutely dry, void of water so far as flowing is 
 concerned. 
 
 The underflow is a current of water under the ground. It is a 
 sheet of water stretching across the country for a considerable dis- 
 tance both north and south. I put a well down at Scott City in 
 1880. We struck a sheet of water. It was in February of 1880 
 that we put down the well. 1 think there is a current to this water 
 
THE STATE OF COLORADO ET AL. 
 
 555 
 
 in the Arkansas valley. That current flows down stream, 
 
 1759 eastward, parallel with the river. As to the effect the de- 
 creased amount of water in the river has had upon the un- 
 derflow, it has lowered the underflow from two to three feet. My 
 ranch that I had for twelve or fifteen years I sold a year ago last 
 spring. It is north of the town about six miles. There are 1120 
 acres in it, and I have a number of wells, and I used to strike 
 water in those wells at that place. I used to dig my wells in 
 the early days and I would strike water at thirteen to twenty 
 feet, and it was always in sheet water, and for the last eight 
 or ten years the water has gone down until I have been 
 obliged to put in tubular wells. There was not sufficient water 
 in that sheet water to supply the stock. The effect of this lowering 
 of the underflow upon the crops along the valley of the river has 
 been to ruin the crops in the valley. Now there is some land here 
 that used to be very productive in alfalfa that will not grow it any 
 more without irrigation. There are other pieces that lie lower that 
 still grow fine hay, where it is shallower to the water. I know oi:e 
 piece west of town here. I used to own a claim adjoining it. It 
 used to be very heavy hay land, and as the water got scarcer and it 
 
 was deeper to the water the hay got shorter. It produced 
 
 1760 more seed and lots less hay. They have irrigated the land, 
 and they didn’t cut it at all when they first put it in alfalfa 
 
 in the early ’80’s. I could only give an estimate as to the extent of 
 the alfalfa crop in the valley being injured by the lowering of the 
 water. It is heavy, though. I think tlie lowering of the water in 
 the valley has injured the hay crop one-half. I first noticed the 
 decrease in the flow of the river and the lowering of the under- 
 flow ever since they commenced building the large ditches in Colo- 
 rado. The water has been getting scarcer in the Arkansas river. I 
 presume that is the cause of the lowering of the water in the Ar- 
 kansas valley in the underflow. 
 
 Cross-examination. 
 
 By Mr. Rogers : 
 
 1761 I took the office of register of deeds a year ago last Janu- 
 ary, the 9th. I was county surveyor years ago. I am ac- 
 quainted with the people generally throughout the valley in this 
 county and I have heard this case talked of and have read of it. I 
 have heard it talked of on the part of the people living along the 
 river. I think the people down here know something about this 
 suit. I have not heard them talk about it to any great extent. I 
 
 presume they take some interest in it. I have heard some of 
 
 1762 the farmers along the river here express themselves, but I 
 don’t know as I could recall anything they said. Not to any 
 
 great extent. (Objection.) I refer to the owners of the lands on the 
 bottom here. I have heard them say that if the water was in the 
 river like it used to be the land would be worth much more 
 
556 
 
 THE STATE OF KANSAS VS. 
 
 than it is and they could produce much more, and as it is. without 
 water in the river, it is an up hill pull. (Objection.) When 
 this river rises the water expands out under the soil and rises 
 up level with it where it is in the river and sub-irrigates 
 
 1763 their alfalfa and trees and all crops for that matter. What 
 little water is taken out here don’t affect the river to speak of. 
 
 They are small ditches. There probably is some complaint made 
 of the taking out of the water in ditches in Kansas. I don’t know 
 that 1 have heard anybody complain of it. I have not heard them 
 say they wanted this suit maintained, but I have heard them say 
 they could grow much more if there was no water turned 
 
 1764 out in the ditches. I think I have heard a complaint of the 
 ditches taking water from the river and injuring other 
 
 farms that were previouslv sub-irrigated. 1 have heard such talk. 
 
 I first observed the decline in the volume of the water in the river 
 about 1890 to 1891 and 1892 — along there. Mv recollection would 
 be that up to that time the water in the river had annually been 
 about uniform in volume. Some years we have more water than 
 others, but we always could figure on water to water our crops 
 throughout the season up to about that time. Some years the 
 amount was greater than others. That is always the case. The 
 average flow throughout the years prior to 1890 was greater 
 
 1765 than it has been since. As to the }^ear at which there was a 
 marked change in the flow, of course it was a good while ago 
 
 and there might have been some years it was drier than others or 
 less water in the river from some cause, but I don’t recall just what 
 year it would be, if any. From 1890 to 1892 the vvater began to get 
 scarce. 
 
 I helped to put a well down at Scott City in February, 1880. 
 Scott City is thirty-six miles north of this town and thirty-six miles 
 north of the Arkansas river. The same sheet of water we have here 
 extends as far north as Scott City. I know that to be a fact. 
 
 1766 It was about 28 or 30 feet in depth that we found the water 
 at Scott City, I think, but I don’t recollect just the distance. 
 
 That was the top of this underflow. The last I knew of that well it 
 was under the corner of a building, or under a side-walk. It was 
 not being used the last time I saw it, because they have putin other 
 wells and it happened to be off the street and was under the corner 
 of the sidewalk or under the corner of a building or something ; it 
 was out of sight. I don’t know how much higher Scott City is than 
 the Arkansas river, only judging from the depth of the water. I 
 think the depth of the well was something like 28 to 30 feet. I am 
 not sure of that. 
 
 1767 I think the water in Beaver creek, seven miles farther 
 north, which has water in it all the time, is on a level with 
 
 this underflow. I don’t know that I ever saw this water in Beaver 
 creek vary much in volume. I have not been on the creek for a 
 good while to amount to anything. It is eight or ten years since I 
 
TIIF STATIC 6f COLORADO FT At. 
 
 § 5 ? 
 
 have seen it. Maybe over ten years ; probably fourteen. The 
 
 1768 well on my ranch seven miles north of Garden City was a 
 dug well, and I put up a wind mill and got along very nicely 
 
 with it for two or three years watering my stock. I went there in 
 1891, but after a year or two the water got so it was not in abun- 
 dance and it would pump away and I had to go to work and sink 
 down to the second water to get water enough to supply that pump 
 to water the stock. The first time I sank I found water at about 
 twent 3 r feet, at the house there, and it went down to about twenty-two 
 or twenty-three feet. It was just sand water — sheet water — the same 
 as we have here. About 1893 or 1894 I sank the well deeper and 
 put a galvanized casing down to the second water, which was 48 
 feet. When I say second water, I mean there are three 
 
 1769 sheets or water here. At that farm the first water was 
 about 20 feet. It was probably three feet deep through 
 
 the sand until we struck clay again. This clay is pretty solid, so 
 solid that you couldn’t drive the casing through it. We had to bore 
 a hole down, and at a depth of forty-eight feet I struck another sheet 
 of water. We went probably five or six feet through the clay and 
 then struck sand and water. It is fine sand at the top, and down 
 at the bottom it is gravelly and that is forty-eight feet from the sur- 
 face. As to quality, the second, sheet of water is much the best com- 
 pared with the first, and the third is much softer than the second. 
 The first sheet is alkali water, back north as far as my farm, 
 
 1770 as bad as river water, and the second water was soft enough 
 so that the women folks did away with using lye ; and then I 
 
 put a well down in the same yard, seventy-three feet, and that was as 
 soft as rain water. It is the first sheet, which I think extends to the 
 river. There is probably a flow under it. I never examined the 
 water to find out whether it is exactly the same water at Scott City as 
 it is at the river, and I never ran any levels to find out whether the 
 elevation was the same at all points. I guess I simply speculated on 
 its being a sheet of water underlying the whole country. 
 
 1771 I know of wells four or five miles south of the river in the 
 sand hills. I put down four south of Deerfield, in Kearney 
 
 county, myself, in a pasture, the first well being six miles 
 south of the river. I found the same sheet of water there. The 
 only wells I know of within five or six miles of here where the 
 water level has been found ten feet or so above the water level 
 of the river is in deep wells. The water always rises in the 
 second and third sheet above the first sheet. It will rise so that it 
 is higher than the sheet water in the same well. In other 
 
 1772 words, if you put in a tubular well with an iron casing the 
 water in the well will stand two or three feet above the water 
 
 in the sand right at the same ground. The water level of the river 
 is the water that is in the sand, the first water ; the other what 
 you might call artesian water. It rises of itself. I think that water 
 rises to a greater height than the level of the water in the river. I 
 don’t know that Scott City is two hundred feet higher than the 
 
558 THE St ATE O E KANSAS VS. 
 
 river at this point, and I wouldn’t have thought it. If that were 
 true I don’t know but it would rather impair my theory. If 
 
 1773 the water in these wells some distance back from the river is 
 higher than the water in the river it could not be the same 
 
 sheet or it would hunt its level. I don’t know that that is the case. 
 I don’t think it is. 
 
 As for getting the moisture to start alfalfa here, we have rainfall 
 enough here to start it. There is always enough if there is any 
 rain to start it. It may die soon after, but we usually have 
 moisture enough in the spring of the year from the melting of 
 snow and the winter moisture to last long enough to start the 
 alfalfa in the spring. Sometimes we don’t have it dry here until 
 midsummer. There are thousands of acres in this count} 7 along 
 the river where they have gotten alfalfa rooted with nothing but 
 the rainfall, that never was irrigated. There is alfalfa here 
 
 1774 in the bottom that has stood twenty years to my certain 
 knowledge. Some of it has been injured by the lowering of 
 
 the water below the bottom land. Some of it is yet shallow enough 
 to be plenty wet. The sheet water will vary from four to sixteen 
 feet below the bottom lands here in the valley. When it is four 
 feet it is a little too shallow for the alfalfa — a little too close to the 
 water. The alfalfa won’t stand it where the roots run into the 
 water. There are places in this valley where it is only four feet to 
 water. This is considered alfalfa land. There are other places 
 where it is sixteen. Where it is only four feet it is a little too shal- 
 low for alfalfa and not a great deal of that land is in alfalfa. 
 
 1775 About eight to ten feet is what they like. The water can be 
 drawn off so that the surface of the water table will be 
 
 eight to ten feet, and that will make short hay, but it is 
 good seed land at about six feet. That is what they call 
 the best hay land, where it is six feet to water. I mean 
 alfalfa hay laud. Ground where the water is sixteen feet 
 below the surface will make seed alfalfa. It will be thin on 
 the ground, maybe, and probably short, but if they can manage to 
 save it it will be loaded with seed. I have seen alfalfa that was not 
 near a foot high and it would be loaded with seed, that is, it would 
 make a big yield per ton but small per acre. The surface of 
 
 1776 the bottoms here is about three to four feet higher than the 
 bottom of the river. Sometimes much more than that. The 
 
 first bottom is usually hay land and the alfalfa bottom is the second 
 bottom, and it runs from four to fourteen or sixteen feet. It is the 
 prevailing condition throughout this part of the valley that the 
 bottom of the river is from three to five feet lower than the surface 
 of the bottom lands. The first bottom, the river bottom, is 
 
 1777 from no width at all to a half mile. That is the first alkali 
 bottom. Then the second bottom or alfalfa bottom runs dif- 
 ferent widths, sometimes very narrow and sometimes two or three 
 miles wide. Garden City is fifty-one miles west of Dodge City. 
 The bottom is very different here from what it is up and down the 
 
THE STATE OP COLORADO El? AL. 
 
 559 
 
 river. From where we are here it is two miles of table land right 
 north, and it is half a mile south to the river. The bottom 
 
 1778 land at this point is less than half a mile wide. The second 
 bottom I speak of does not touch the river at any point close 
 
 to Garden City. At Deerfield I think it does. There doesn’t seem 
 to be anything but the second bottom there right up to the river 
 bank. The bank there is about ten feet deep. Wherever that first 
 bottom happens to be it is narrow. Originally I suppose it was river 
 bed. That land would be benefited by more water. It is not alfalfa 
 land, it is a wild prairie hay land, blue stem, and the} 7 don’t 
 
 1779 get near the blue stem hay off it they did when there was 
 more water in the river. I don’t think the soil is right for 
 
 alfalfa. It is a sandy soil, and is alkali. 
 
 I know something about the assessed valuation of land in this 
 county. The assessed valuation has not been changing very much 
 in this county in recent years. Land lias advanced here, but noth- 
 ing compared with some parts of the State, and the ranch and graz- 
 ing land has advanced in proportion a great deal more than lands 
 along this bottom — than the farming lands along the ditches. But 
 the bottom lands have advanced somewhat. I don’t know of any 
 land in this locality that has declined, and nowhere else. Lands 
 have advanced generally, I think, all over the country. 
 
 1780 In reference to the wells which I put down about six miles 
 south of Deerfield, I found the water at a depth of forty-six 
 
 feet in the first well and fifty-five feet in the one three miles farther 
 south. I think that was five or six years ago this last spring. The 
 well is right near the center of township 25, 35. I don’t know 
 
 1781 that at a point six miles south of Deerfield we would be sixty 
 feet above the level of the river, nor that at the other point 
 
 nine miles south of Deerfield it would be eighty feet above the 
 river. It is just ten feet deeper to water — fifty-five to fifty-six feet. 
 
 Redirect examination. 
 
 By Mr. Ashbaugh : 
 
 As to the quality of the first bottom land along the river where it 
 is not over four feet to water being good alfalfa land, I said that the 
 soil was not adapted to alfalfa. It is a cold-natured soil, a kind of 
 gumbo. If the soil near the river was of the same quality as the 
 soil farther back it would not be as good for alfalfa as if it 
 
 1782 were a little deeper to water. I think the best alfalfa land 
 depends upon the quality of the soil as much as on the water, 
 
 as I have stated above. (Objection.) 
 
 As to the uplands having advanced a greater per centage than the 
 bottom lands, I will say the uplands have not been affected by the 
 scarcity of water in the river in the last few years and the bottom 
 lands have. 
 
560 
 
 ttfE StATE Of KAtiSAg VS. 
 
 Recross-exam i nation . 
 
 By Mr. Rogers : 
 
 When I speak of the uplands I don’t mean land under ditch in 
 this country ; I mean the grazing lands and ranch lands — 
 
 1783 outside lands. I should say that from three to ten dollars an 
 acre is the selling price generally for strictly grass lands. As 
 
 to the bottom lands, land to produce good alfalfa has been sold as 
 high here as sixty to seventy dollars, and that kind of went back on 
 the farmers and would sell cheaper; that is, it is worth from ten to 
 seventy dollars an acre. I don’t know any piece of alfalfa land 
 where the ground is only from two to three feet to water. 
 
 1784 We consider four feet here shallow enough, and six feet is 
 often considered the best alfalfa land. That depth to water 
 
 might vary somewhat in other parts of the county, according to the 
 soil. 
 
 L. P. Worden, Garden City, Kansas. 
 
 Direct examination. 
 
 By Mr. Ashbaugh : 
 
 I live in Syracuse, Hamilton county, Kansas, and have lived there 
 since 1885. Hamilton county is on the Arkansas river and 
 
 1786 the first county east of the State of Colorado. My business 
 is flour, feed and coal. I own 350 acres of land, one mile 
 
 west of Syracuse, all located on the north side of the river. It is 
 all bottom land and adjoins the river. The Arkansas valle}' at 
 Syracuse, and especially at my place, containing the first and second 
 bottoms back to the uplands, is about a mile and a half wide. There 
 is quite a difference in the width of the valle} 7 in different localities. 
 Down about Kendall in the eastern part of the county it is a good 
 deal wider, and it is also a good deal wider at the west part of the 
 county up near Coolidge. The valley I think through the county 
 would average from one and a half to three miles wide. 
 
 1787 I am acquainted with the flow of the Arkansas river since 
 1885. I have lived there all the time and have been there 
 
 all the time and have been in touch with it all the time and have 
 had occasion to notice it as it flowed from year to year. During the 
 first seven years, during the dry season, we had a pretty good flow 
 of water most all the time, enough to raise good crops. For the 
 last ten years, excluding the year 1904, we have had very little water 
 excepting in flood times, except in the winter when it is moist or 
 warm enough so that we can irrigate. We can generally get a little 
 water in the winter. During the dry seasons of the year for the 
 last ten years, excluding 1904, the river has been absolutely dry 
 numbers of times. In 1903 it was dry practically all the time, ex- 
 cept during these flood times when we have the Purgatoire coming 
 down or some of those streams up there. The stream from Pueblo 
 when they have a rise there hardly ever affects us as far as we are. 
 
THE STATE OF COLORADO ET AL. 
 
 561 
 
 When I first came to Hamilton county we had such a thing as is 
 known as the June rise, and we generally had more water when the 
 snow melted in the mountains than at other times. The June rises 
 in those years lasted three or four weeks. They came and went 
 
 1788 gradually. It sometimes comes down in a three or four foot 
 wall. It comes all at once and goes all at once. I never 
 
 could see much difference in the early years upon the saturation in 
 the bottom lands in Hamilton county. The water stood about the 
 same in the land all the time. During the last ten years prior to 
 1904 it has been quite a little lower than it was then. The under- 
 flow is lower by a foot and a half to two feet. The underflow has a 
 perceptible current through Hamilton county. That lias been my 
 observation. It is from west to east. I have seen it flow through a 
 post hole, parallel with the river. It would clear from the 
 
 1789 upper side of the post hole, clearing toward the east. This 
 underflow extends clear back to the hills. 
 
 I have been raising alfalfa since 1889. I seeded my crop in the 
 spring of 1889 and commenced cutting on the fourth of July. As 
 to the effect of the decreased flow of the river and the falling off of 
 the underflow upon my alfalfa crops, my alfalfa crop is practically 
 gone. I don’t know as it is altogether the decrease in water, but I 
 lay a good deal of it to that. This is also true of other alfalfa 
 throughout the county. We haven’t had until this year nearly as 
 good hay as we used to have years ago. I attribute this falling off 
 in the alfalfa and the hay crops to the fact that we haven’t got so 
 much water. 
 
 I do some irrigating. We began to irrigate in 1885, and I 
 
 1790 continued that until I left the farm five years ago. Not the 
 same farm, though, all the time. From 1885 to 1890 there 
 
 was a sufficient flow of water in the river to supply all our needs for 
 irrigation during those years. For the last few years, excluding 
 1904, we have had very little irrigation except in flood times when 
 the water comes down, a big rain out west or something of that 
 kind. In the summer time we get very little except in flood times 
 when there is a big freshet up west. The effect this lowering of the 
 underflow has had upon our crops that we raise by irrigation has 
 been that we do not raise half the crops that we used to. Our crops 
 are very uncertain. We can’t rely upon sufficient water for irriga- 
 tion purposes for the raising of a crop. 
 
 We began to notice this diminution of the water in 1888 or 1889 
 or 1890 — along there. It commenced to get less and has gradually 
 been getting drier ever since until this year we have had 
 
 1791 more water. We get our water for irrigation from the Ar- 
 kansas river. 
 
 The principal ditch in Hamilton county is the Alamo ditch, and 
 there are several small private ditches. There was a little private 
 ditch that three or four of us built in 1896. I own a part of it. The 
 Alamo was built in 1888 or 1889. I think the first water turned 
 into any ditch in Hamilton county for the purposes of irrigation was 
 36-7 
 
562 
 
 THE STATE OF KANSAS VS. 
 
 in 1883. That was the old Dr. Collier ditch, which had its head- 
 gate about six miles west of Syracuse in Hamilton county. There 
 are some other ditches that I have not named in Hamilton county 
 that are used for irrigation. There is the Tom Ford ditch, taken 
 out east of Syracuse, on the north side of the river, and there 
 
 1792 is one on the south side. They were built in 1895 or 1896 — 
 some where along there. During the years from 1897 to 
 
 1903 I think these ditches didn’t get a sufficient amount of water 
 for the purposes or irrigation. The Frontier ditch is a private ditch 
 built t about ten years ago in the western part of Hamilton county, 
 that comes in from Colorado. Its head-gate is about a mile 
 
 1793 and a half west of the State line, and it runs about six 
 miles into Kansas. During the last five years they have 
 
 had more water than any other ditch in the county. The big Col- 
 lier ditch running above it sends a good deal of water down Horse 
 creek and they get that water. 
 
 Cross-examination : 
 
 By Mr. Dawson : 
 
 In 1887 I moved into Syracuse, but I only lived in town 
 
 1794 three years and then went back onto another farm. I stayed 
 on that farm until five years ago. Since 1899 I have not 
 
 been engaged in farming, only second hand. I have not operated 
 the same place ever since I have been in the county. When I went 
 back to the farm I went to another place. The place I now have 1 
 got in 1887. About 200 acres of it is in cultivation, and that is all 
 on the first river bottom, on the nortli side of the river. It 
 
 1795 runs about one to four feet above the surface of the water in 
 the river when the river is at an ordinary stage. It depends 
 
 on the stage of the water. I have seen it when the river was 
 clear out, and sometimes the river would overflow. I raised very 
 little crops there without irrigation. My principal crops have been 
 corn, wheat, oats, barley and alfalfa. The principal crops now are 
 sorghum and kaffir corn. The alfalfa is all gone. I don’t strike 
 water now in digging post holes on this ground at the same 
 
 1796 depth I did in the early days. The water there is one and 
 a half to two feet lower than it used to be. It would run 
 
 from two and a half to six feet below the surface at this time. I 
 didn’t say that I attributed the falling off in my crops and the 
 dying out of my alfalfa to the fact that the water had been 
 lowered in this ground. I do attribute it to lack of irrigation, and 
 grasshoppers. I don’t think the lowering of the water in this 
 ground has helped the alfalfa any. The best alfalfa ground we 
 have in our county is about two to two and a half feet to water. I 
 presume that our ground is about the same as that in Kearney 
 county, though I am not personally acquainted with the 
 
 1797 latter. We have had less water in the soil and less water for 
 irrigation, a great deal. There is no place upon this land 
 
THE STATE OF COLORADO ET AL. 
 
 563 
 
 that I cultivated where I can’t find water by going four to six feet 
 in depth. There is plenty of it there, only it is a little farther down. 
 There certainly is not as much, but then there is plenty of under- 
 flow, all right, if you go down after it. I determined the fact that 
 this underflow had a current from west to east by digging a post 
 hole one time. I saw it clear up from the west 3ide towards the 
 east. I was a quarter of a mile from the river, and went about 
 
 1798 two and a half feet deep before I struck the water. The top 
 soil was gumbo, and then you struck gravel after a foot and 
 
 a half of gumbo. It may have been in an old channel of the river. 
 There might at some time have been a river there. I presume it 
 was all river at some time. I don’t know. The river shows evi- 
 dences of its having shifted from year to year and from time to time, 
 so that across the first bottom at any place you sink you might 
 strike what at one time was an old channel of the river. I don’t say 
 that you could not. I don’t think the gravel is any different there 
 than where you go eight feet to water in the valley, after you get to 
 it. I think the same strata of gravel is underlying all of the 
 
 1799 river bottom. The year that I made these tests or sank these 
 posts holes so that I discovered the depth of the water below 
 
 the surface, and this current, was probably 1888 or 1889, somewhere 
 along there, when I first went on the farm. I have dug holes in the 
 ground at different times and different places since then. I have a 
 well at my place where the water don’t stand as high by a foot and 
 a half or two feet as it used to. When I dug that the ground was 
 under irrigation and ever since has been under irrigation, and yet 
 the water don’t stand as high as formerly. When I first dug 
 
 1800 it it was about seven feet from the surface, and now it is about 
 eight and a half to nine feet. Some of the ditches which 
 
 supply water to my land run above this well on higher ground 
 and the ground surrounding the well and lying adjacent to it is 
 irrigated land. I have an orchard right south of it. I have 
 been irrigating that land now for twelve years. And the ground 
 had been irrigated two or three years when the well was dug 
 and yet the water stands at a lower level in the soil than when 
 I dug it. This well is located on section 11, 24-41. This well 
 shows a variation from time to time as to the height of the water 
 in it, and that variation is governed by the water in the river. I 
 don’t think it makes much difference whether I am running water 
 in the ditches and irrigating the land or not. The water comes up 
 within four feet of the top sometimes when the river is bank full, 
 and at other times it stands seven or eight feet deep. The 
 
 1801 well is about one-third of a mile from the river. A big rise 
 in the river will show in the well in about two to four days. 
 
 It may show a little change from the irrigation of lands surround- 
 ing, but not much. The main ditch or Alamo ditch that runs across 
 my farm runs in a way that would not have any effect on the well 
 at all, because there is a draw between the ditch and my place 
 where the house is. This draw is one that comes from the outlying 
 
564 
 
 THE STATE OF KANSAS VS. 
 
 country, from the higher ground, and drains to the river. It 
 
 1802 never has water in it except in times of rain. There is no 
 creek running through my place. This draw is 150 feet 
 
 from the well, and the ground is lower than the well. The ground 
 at the well is about eight feet above the bed of the river, I think, 
 and the draw at its nearest point is probably about two feet lower 
 than the ground at the well. Maybe a little more than that. I 
 can’t say positively. The top of the water in the well is lower than 
 the ground in the draw. I think this draw would cut off the water 
 from this ditch. It might not, but that would be my idea. 
 
 1803 It is true that if the water from the ditch was proceeding 
 under ground it could easily pass this draw and strike the 
 
 water in the well, to a certain extent. The water sometimes backs 
 up into this draw from the river, but I never saw it show any rise 
 from underneath. It came out of the bank of the draw when the 
 river was high once. When the river is so high that it raises the 
 water in my well within four feet of the surface, it backs up in this 
 draw. It backs up to a lateral I have across the draw. That is as 
 far as it will go. That is about one hundred and fifty to two 
 
 1804 hundred feet from the well. When the river rises then it 
 backs the water up in this draw until there is no surface 
 
 water in the draw within one hundred and fifty feet of the well. 
 My idea is that the rise in the well comes from the underground 
 flow and not from the water that the river backs up in the surface 
 of this draw. The water has only backed up in the draw two or 
 three times since I have lived there. I should say this draw is 
 about four feet higher than the ordinary level of the water in my 
 well. 
 
 This crop land which I have irrigated there has shown approxi- 
 mately one-half of a falling off. I pasture this land some in 
 
 1805 the winter. I don’t pasture it very completely. Sometimes 
 very little. When I was raising alfalfa there I generally put 
 
 some calves on it after I put up the last crop in the fall and kept 
 them there as long as it would furnish plenty of feed. I didn’t find 
 that had any tendency to trap out or kill the alfalfa. I think it did 
 just as well. I had over a hundred acres in alfalfa there at one 
 time; now I have none. I ploughed up the alfalfa last spring be- 
 cause there was very little there. I have been unable to get water 
 for irrigation. I rely on the Occidental ditch, a private ditch, 
 
 1806 for irrigation. That was taken out in 1896, 1 think. During 
 the time we took it out there was not ample water in the 
 
 river to supply it at all times. We thought we could get better 
 service, though, by owning a ditch than to buy our water. 
 
 I have known ever since I have been in that country of irriga- 
 tion in Colorado and of the construction of ditches in that State, but 
 I have never made any complaint nor lodged any objection in ref- 
 ence to the construction or operation of these Colorado ditches, ex- 
 cept privately. I knew and realized from my own knowledge of the 
 country in western Kansas the necessity for irrigation to make sue- 
 
THE ST ATM OF COLORADO ET A L. 
 
 565 
 
 cessful crops, and I know that is true of eastern Colorado and also 
 western Kansas. I think I saw that this litigation was contemplated, 
 in the paper, when it tirst came out. I haven’t taken any active in- 
 terest in it personally. It has been discussed a good deal in 
 
 1807 my county. (Objection.) I never started any proceedings 
 nor commenced any suits for the purpose of preventing Colo- 
 rado from irrigating, and I have known of the fact that they were 
 irrigating in Colorado and constructing large ditches since 1885 at 
 the time I went there. 
 
 With water for irrigation upon our lands I think our lands are 
 just as good to-day and would be just as productive as formerly. I 
 think there are six ditches in our county, big and little. There is 
 the Frontier ditch, and the Alamo ditch a year ago was a part of it, 
 but it makes two ditches now. There is what we call the upper and 
 lower Alamo, and the Occidental ditcli and the two Ford 
 
 1808 ditches. Crops cannot be successfully raised in Hamilton 
 count}' without irrigation. Farming lands in Hamilton 
 
 county are not worth much without irrigation there any more than 
 in Colorado. Our lands are not worth any more to-day than they 
 were at anytime in the last eight or ten years unless irrigated, 
 except in boom time. I don’t think thev are worth as much. 
 I think they are selling for less. The uplands and the lands 
 not irrigated are worth more now than seven or eight years 
 
 1809 ago. The ditches that I have spoken about in our county 
 are kept up pretty well, but not as well as they ought to have 
 
 been. We started in to clean out the Occidental ditch in the spring of 
 1903, but didn’t complete it altogether. There is or was a canal in 
 that vicinity called the Alameda canal. It has washed out. The 
 head-gate has washed out. I didn’t mention it because they didn’t 
 use it for several years. About half a mile of the upper end of it 
 is also washed out. If the ditches were attended to and we 
 
 1810 had more water for our ditches I think our crops would be all 
 right. I don’t know that I am taking the position that the 
 
 Colorado ditches should be shut off for the mere purpose of allowing 
 the water to go down the river. I don’t think that Kansas is any 
 better than Colorado or Colorado is any better than Kansas. (Ob- 
 jection.) I think it would be radically wrong, myself, to prevent 
 every one taking water for irrigating purposes, compelling every 
 one to leave the water in the river simply to run by to its mouth, 
 and that would be a detriment and injury to western Kan- 
 
 1811 sas as well as Colorado. I think it is true that for the suc- 
 cessful farming of this western part of Kansas, including the 
 
 lands in our county, we must rely upon irrigation and are vitally 
 interested in the maintaining of the right to irrigate. (Objection.) 
 I have heard no talk or discussion among the population or citizens 
 of our county which would indicate that they wished to do away 
 with the doctrine of irrigation and have the water simply run by in 
 the river. (Objection.) There is a better flow of water in the river 
 this year, 1904, than for many years past. 
 
566 
 
 THE STATE OF KANSAS VS. 
 
 1812 E. J. Pyle, Garden City, Kansas. 
 
 Direct examination. 
 
 By Mr. Ashbaugh : 
 
 I have lived in Garden City, Finney county, Kansas, for the last 
 nineteen years and have been in the real estate business ever since I 
 have been here. My business extends all over the county and I am 
 familiar with the lands in adjoining counties both east and west. I 
 am familiar with the flow of the Arkansas river and the crops raised 
 in this county. I came here in 1885. The average flow of 
 
 1813 the river during the dry season of the year for the first five 
 or ten years that I knew it I should think would be about two 
 
 to two and a half feet deep on the average. The average flow of the 
 river during the same season of the year for the last five or eight 
 years, excluding the year 1904, 1 think would not be one foot. For 
 the last few years the river has been dry most of the time. We now 
 have flood waters most any time and then after that the river dries 
 up. I don’t know as I could tell any particular time, though we are 
 most apt to have flood waters in June. After our flood waters have 
 run out for the last five or eight } T ears the river has been generally 
 
 dry. 
 
 Examining Complainant’s Exhibit A-45, I recognize it as a pho- 
 tograph of the bridge south on Main street across the Arkansas 
 river. I don’t know when the picture was taken, but I should think 
 some time recently. If that picture was taken in April, 1904, 
 
 1814 it would be a correct view of the river. It does not show any 
 water in it at all. The bridge is between a quarter and a half 
 
 a mile long. I couldn’t say just how long the river had been abso- 
 lutely dry as shown in that picture. Every once in a while there is 
 a flow of water comes down. I was in California part of the time 
 between July, 1903, and May, 1904, though when here I didn’t see 
 any water in it. The crops that we raise in the valley through 
 
 1815 this county are mostly alfalfa. The Arkansas valley through 
 this county is about three miles wide on the average — about 
 
 four miles at the widest place and from a mile to two miles at the 
 narrowest place. We distinguish between first and second bottom 
 lands here. There is usually a rise of three or four feet between 
 them. The depth to which we have to go for water on an average 
 on the first bottom lands is owing to the water in the river. It is 
 owing to how deep it is. The water percolates through the soil, and 
 at times when the river is full of water there is a good deal of this 
 first bottom land that is not over three or four feet to water. At 
 other times it would probably be five or six feet. My judgment and 
 experience is that the water saturates back under the first bottom 
 lands and rises and falls with the rise and fall of the water in 
 
 1816 the river. This water is known as the underflow because it 
 comes from the water stratum under the surface, and it is my 
 
THE STATE OF COLORADO ET AL. 
 
 567 
 
 impression that it has a current. (Objection.) I couldn’t say 
 whether the water under the first bottom lands has a current or not. 
 I don’t know. It is the general and universal understanding here 
 that the water beneath the bottom lands has a current. 
 
 (Complainant’s Exhibit A-45 offered in evidence.) 
 
 The court house at Garden City is approximately half a mile 
 from the river. The ground between the court house and the river, 
 a little more than half of it is on second bottom and the re- 
 
 1817 mainder on first bottom. The fair grounds lie between the 
 city and the river. The main part of it is on the first bottom, 
 
 though it runs up a little on the second bottom. I remember the 
 little lake or pond that used to be down on the south part of the 
 fair grounds. It was about a miie long, though there is a part of it 
 that leads out to the river. It runs back into the river, and it is 
 about eighty feet wide at its widest part. It is longest east and west, 
 parallel with the river. The first years in which I knew this 
 
 1818 country and up until about 1888 it was full of water. After 
 about 1888 there has been very little water in it except at 
 
 flood times. During the dry seasons I think it has gone dry a time 
 or two. During the first years I knew it it was about five feet deep, 
 deep enough for swimming purposes, and people did go swimming 
 in it, and during the first years there were a great mai^ fish in it, 
 but I don’t know how long they lasted, up to the years when it 
 went dry. After that the fish were all killed out. It went dry so 
 that the fish were killed out about 1888 or 18110, to the best of my 
 recollection. It was four or five feet deep for something less than 
 half a mile long. This lake got its supply of water from the 
 
 1819 underflow. There was no inlet that I know of from the river. 
 There was no stream running into it at all. The water in 
 
 that lake would fall and rise with the water in the river. The bot- 
 tom of that lake is not entirely grassed over; it is some narrower 
 than it used to be, but I don’t think it has grassed over. There is 
 an outlet to it or slough running from it across Main street, and it 
 runs into the river about half a mile east of Main street. There is 
 a bridge on Main street across this slough. There is some water i h 
 it just at high water or flood periods. 
 
 1820 The lowering of the water in the river and under the first and 
 second bottoms has had a material effect upon the crops. They 
 
 are not nearly so good as formerly. Upon the alfalfa, which is the 
 main crop. As to prairie hay, it is owing to the flow of the river in the 
 spring of the year as to the crop of wild hay. If we have a good flow 
 of water in the river in the spring, that carries the wild hay through. 
 I think the alfalfa crop has been injured by the falling of the water, 
 fifty per cent. This falling off* extends through the whole county 
 and to that extent on an average. 
 
568 
 
 THE STATE OF KANSAS VS. 
 
 Cross examination. 
 
 By Mr. Rogers : 
 
 1821 My real estate business extends east and west along the 
 Arkansas valley from Cimarron to Lakin. I have done busi- 
 ness in Kearney county and some in Gray county. I have dealt as 
 much in grazing and ranch lands as in agricultural lands. I dis- 
 tinguish grazing and ranch lands from agricultural lands, and by 
 
 agricultural land mean land that is farmed and crops grown 
 
 1822 upon it. Grazing land or ranch land has increased in value. 
 When I first came here it was in boom times and the land 
 
 was high then. Without reference to that peculiar condition, how- 
 ever, during most of the years grazing and ranch lands have ad- 
 vanced at least one hundred per cent. During the dull times in 
 1893 and 1895 this upland could be bought at from fifty to a hun- 
 dred dollars a quarter section. It is worth now about two hundred 
 dollars a quarter anyhow. When I came here, leaving out of ac- 
 count the boom period, the improved bottom land or agricultural 
 land was worth about twenty-five to fifty dollars an acre. 
 
 1823 That was from about 1887 or 1888 to 1890. I should say the 
 price of this bottom land or the alfalfa land was from twenty- 
 
 five to fifty dollars an acre, outside of the boom years. The land is 
 now worth from fifteen to twenty dollars an acre. It has declined 
 in value because it does not produce the crops of alfalfa that it did. 
 A great deal has died out, and the tonnage is not so good. In 
 speaking of agricultural lands, I refer to bottom lands. That is all 
 I refer to. The lands I have been referring to have been under the 
 ditch. The subject of making this land productive and fertile has 
 been a subject of constant discussion. Garden City has been the 
 center of the agitation looking towards the making of this 
 
 1824 part of the State valuable and the raising of crops. They 
 have had frequent conventions here of farmers and others 
 
 interested in the lands to discuss the methods for making 
 lands along this river valuable. These meetings or conventions 
 were matters of public notoriety and were advertised in the news- 
 papers and also reported in the newspapers, and they were at- 
 tended by people living along the river — by farmers as a 
 
 1825 rule. We have never struck upon any plan to make those 
 lands valuable yet. We have tried everything and don’t raise 
 
 anything. I don’t know how we are going to make them valuable 
 unless we can get water. Taking the water from the river and other 
 sources of supply to irrigate these lands has been the main theme 
 since Garden City and its vicinity was first settled. We have talked 
 about stock and crops and of crops grown on the uplands and 
 
 1826 all that sort of thing, but the main thing was irrigation. 
 That meant taking water for irrigation from the Arkansas 
 
 river. Of course we talked the underflow and pumping besides 
 that. It was always getting water by some device, either from the 
 river or from the underflow. We had a Government experiment 
 
THE STATE OF COLORADO ET AL. 
 
 569 
 
 station here that experimented on different kinds of grain that would 
 grow without irrigation on the uplands, but as to the bottom lands, 
 it would take irrigation. I have heard it contended or insisted that 
 the waters of the Arkansas river should be allowed to flow down the 
 river as by nature they were intended to do. (Objection.) I have 
 heard it claimed by some that if the waters ran down the 
 
 1827 river we would have more rain. It would create a more 
 humid atmosphere. We would have a great deal more rain- 
 fall. They have urged that it should flow down the river for that 
 reason. I don’t know that the owners of land here would prefer to 
 have the water go down the river for that purpose rather than to 
 take it out for the irrigation of crops, but I have heard that theory 
 advanced. They prefer to have water to irrigate their land. (Ob- 
 jection.) I don’t know of anyone insisting that water should not be 
 taken out in Colorado for irrigation purposes simply to pass the 
 
 water by without being used for the irrigation of lands along 
 
 1828 the river in Kansas. (Objection.) I don’t think that the 
 waters of the Arkansas river have had any uniform flow for 
 
 any considerable period of years. I think it had a uniform flow 
 when I first saw the river. I was on the river in 1865, about 4 
 months — September, October, November and December. It had a 
 uniform flow then. I crossed the plains at that time. With the ex- 
 ception of five or six years I have been on the river all the time 
 since 1865 ; that is, in the vicinity of the river. I came here 
 
 1829 from Wichita. For years I was acquainted with the river 
 there, along about 1870. I can’t give any series of years when 
 
 the waters of the river had a uniform flow — not of late years. 
 From the spring of 1885 to the spring of 1888, I think I can. I 
 could only give an average. June would be the most uniform flow. 
 That is the month of floods. Throughout the month it would be 
 nearer the same. July would be the most apt to be uniform of any 
 month except June. Years ago it might have been uniform, 
 
 1830 but I couldn’t say that it was. I don’t, sav that they were uni- 
 form ; I sa} 7 they were most likely to be uniform. I refer to the 
 
 years 1885 to 1888. Since that time we have had no regular flow to 
 the water at all. There has nothing been uniform. I can’t say that 
 every day there was just as much water as any other day, but I say 
 they were the nearest uniform in the month of June, at the time 
 when the snows melt and come down the river — the flood waters. 
 The flow is determined by conditions that change from day to day 
 and month to month. 
 
 1831 The picture of the bridge (Exhibit A-45) represents a con- 
 dition in April of this year. It shows the river dry. With 
 
 the exception of the two months I was in California, the picture 
 shows practically the condition of the river from July of 1903 to 
 April, 1904. 
 
 Whenever we can get water for irrigation here it is used. It is not 
 used for any purpose except to irrigate crops. It runs in ditches 
 sometimes when I don’t see any use of it. It is running now and I 
 
570 
 
 THE STATE OF KANSAS VS. 
 
 don’t know of any crops that it is necessary to irrigate. I don’t 
 
 1832 know why they are running it, but it is running. I have been 
 in Colorado a number of times. I have been at Rocky Ford a 
 
 number of times, and Denver, and Colorado Springs. I have seen 
 irrigation as practiced about Rock} 7 Ford, but I was not there in the 
 winter time. I have seen people irrigate here in the winter time, 
 but not extensively. The dryness of the river prior to April of this 
 year might he charged to the taking of water out by the 
 
 1833 ditches in Colorado for irrigation. The statement was a fact, 
 so far as I knew it, that the river was dry here in April and 
 
 that the water had been taken out in Colorado during that period. 
 I don’t know whether the dryness of the river in this last April was 
 caused by the owners of canals in Colorado. 
 
 The lake or pond referred to in the direct examination may have 
 been an old channel, but I think not, at least not within the knowl- 
 edge of the oldest settlers here. The channel was about 80 feet wide 
 at the widest place. The lake proper was between a quarter and a 
 half mile long, with a narrow outlet, or, taking it all tofogether, 
 
 1834 about a mile long. The water began to decline in this lake 
 about 1888 or 1889. I think they began to sink wells around 
 
 Garden City for the purpose of taking water from the underflow 
 about 1890. They have been active in the business of sinking wells 
 to get the underflow since that time. I should think there were 
 about 300 wells around Garden City or in the valley tributary. I 
 couldn’t say how many acres of land are under cultivation in the 
 neighborhood of Garden City. It might mean a mile and it might 
 mean three or four miles. 1 should think somewhere between three 
 and four thousand acres, taking it from the river back to the 
 
 1835 bluff and for five miles east and west. A small percentage 
 is irrigated by the use of wells, perhaps two or three acres by 
 
 one well. Those three wells mentioned are within the territory I 
 have named, about two miles b\ 7 five. The water is pumped from 
 these wells when the wind blows, and is usually stored in reservoirs 
 until they are full and then turned onto the land. If not turned 
 onto the land it will seep out within a short time. I don’t know 
 the effect that pumping from these windmills has upon the water 
 level underneath. It has possibly fallen some on thataccount, 
 
 1836 but not perceptibly. It has fallen some, but we think it is 
 from the river and not from what little is pumped by the 
 
 wells. The general fall in the valley I think has been two feet, but not 
 from the wells. I don’t charge anything, scarcely, to the wells. I 
 don’t think it has any effect, hardly, on the underflow. These wells 
 are all between this so-called lake and the bluff lands. They will be 
 north and east and west of that lake. 
 
 There is a ditch taken out of the river and covering a portion of 
 this town and adjoining territory called the Garden City ditch. 
 It runs right through town and above the town about three 
 
 1837 miles. That ditch could water all the land that lies under it 
 if there was enough water for the ditch. About 5,000 acres 
 
THE STATE OF COLORADO ET AL. 
 
 571 
 
 could be watered from the ditch. There is a ditch running back of 
 the one I have just spoken of, known as the Kansas canal. It is 
 now called the Farmers canal. Its head-gate is about 11 miles above 
 Garden City. This ditch is divided up out here about 5 miles. It 
 is split up into smaller ditches called laterals. I couldn’t say 
 
 1838 how long they are. Some of the land under that ditch has 
 been cultivated by irrigation, and in this vicinity we have 
 
 these two canals supplying water to the agricultural lands contiguous 
 to Garden City. 
 
 Q. Referring to these two ditches you have just mentioned, do 
 you understand it is the desire of the people owning lands under 
 these ditches that they can cease to take out the water of the Arkan- 
 sas river through these ditches for irrigation purposes? 
 
 A. No, sir. 
 
 Cross-examination continued. 
 
 By Mr. Hayt : 
 
 1 came to Garden City in 1885. The main boom here was 
 
 1839 in 1885, 1886, and 1887. I don’t know T that it was advocated 
 in those years that the rain belt extended westward. I never 
 
 heard it mentioned in those days that the principal ind ucement for 
 settlement in this country was the fact that the rain had increased 
 in this locality. Yes, sir, the precipitation during the years 1884, 
 1885, and 1886, was very great. Those were wet years. I don’t 
 think 1887 was so good as 1885 and 1886. I was not here in 1884. 
 During those three years the crops were raised from ordinary rain- 
 fall, then the crops decreased in quantity after the rainfall de- 
 creased, and the people then began to resort to irrigation for 
 
 1840 the raising of crops. They had irrigated on the bottom lands 
 here before, but they resorted more generally to irrigation 
 
 after that time. In the last two years the ditches have been cleaned 
 out and more water used. Before that time the ownership was non- 
 resident, but the home people have gotten hold of the ditches in the 
 last few years and that is the cause of the revival. I don’t know 
 that it is any advantage to irrigate at this time, but some of them 
 irrigate in the winter. I notice there is water running in the ditches 
 now, but I don’t know that anybody is using it. I have not 
 
 1841 been through this country in the last week or two and have 
 not observed whether they are spreading the water on the 
 
 land quite generally or not. I only saw the water running through 
 the ditches here in town in the last few days. I have stated that I 
 didn’t think there was any perceptible effect upon the sheet of water 
 by reason of the pumping of the wells. The irrigation pumps are 
 five or six inches. The pumps are too small to have any effect on 
 the underflow, in my judgment. Mrs. Richter’s well is a different 
 proposition. It pumps about a thousand gallons a minute. It is 
 not in constant operation. I think it is seldom in operation. In 
 dry times they use that well for irrigation upon the land that can 
 
572 
 
 THE STATE OF KANSAS VS. 
 
 be irrigated from it, and whenever it is necessary to use water for 
 irrigation that well is running. Yes, I know of another pumping 
 plant that is being installed in this vicinity by Mr. Holcomb. 
 I have been at that pumping plant, but have not been there 
 for about 6 weeks. I don’t know whether or not, as a matter 
 of fact, they expect to have it in 'operation in about 
 
 1842 ten days, in time to use for the fall irrigation. I don’t 
 know whether that pumping plant has a capacity of about 
 
 6,000 gallons a minute. Yes, sir, I have talked with Mr. Holcomb 
 and others with reference to the capacity of that plant, but he didn’t 
 know how much he had then when I talked with him. I have not 
 talked with him lately. (Objection.) I have talked with him since 
 the contract was made for this large pumping plant. It is now about 
 completed. (Objection.) I don’t remember that he stated the ca- 
 pacity of that plant. (Objection.) This pumping plant is 
 
 1843 located right at the junction of the first and second bottom 
 lands. He proposes to get water for use from this plant just 
 
 at the junction of the first and second bottoms, where there is quite 
 a bench. He has a large well dug probably 15 feet by 30 feet, and 
 in the the bottom of that he has what they call feeders — large pi pes 
 driven in the underflow, down perhaps 20 feet in the underflow. 
 (Objection.) He also has galleries running out into the sands and 
 gravel of an old river bed at that point. He had a ditch cut to the 
 underflow leading the water into the main well from two directions. 
 They were probably 100 feet long, each one of them. (Objection.) 
 
 These lands have not a fine growth of grass upon them at this 
 time, for the reason that they are pastured off. All the land is in 
 pasture between here and the river. There is a fine body of sod at 
 this time. There might be three or four inches of thick grass on this 
 land inside of the fair ground where it has not been pastured. I 
 don’t think there is considerable grass where they are pastur- 
 
 1844 ing it. I think it is pastured very short. I have not been 
 there for the last two or three weeks. 
 
 No, sir, I dont’ know of any point within four or five miles of 
 where we are now where this water level is from ten to twelve feet 
 above the level of the water in the river. Yes, sir, I know of a set- 
 tlement out here north of town where they strike water in the wells, 
 out here in the shallow water valley, where there is a man who 
 claims that the water comes pretty near to the surface, but I don’t 
 know how much higher than the river, if any. The place referred 
 to is located on section 2, 23-33. I have no means of knowing 
 whether or not as a fact there are a number of wells in that vicinity 
 where the water level is considerably higher than the water level of 
 the river. I do know that the wells come near the surface, 
 
 1845 but I don’t know how much higher they are than the river. 
 
 Q. Now, Mr. Pyle, has there not been considerable discus- 
 sion here as to the cause of the water level in those wells being 
 higher than the water level in the river, and have you not heard 
 that discussion ? (Objection.) 
 
THE STATIC OF COLORADO ET AL. 
 
 573 
 
 A. Yes, sir, I have heard it discussed, but the opinion is that the 
 water out there doesn’t come from the river. It comes from a 
 northern source of supply — from the White Woman. 
 
 Q. You have heard it stated that the level at that place is much 
 above the water level at the river, have you ? 
 
 A. I don’t know as I have heard that brought up before, as to 
 whether it was higher than the river here, because the impression 
 is that the water comes from the White Woman valley. That is a 
 stream that has no outlet. It heads up in northwestern Kansas or 
 in the edge of Colorado and runs about 75 miles southeasterly and 
 has no outlet. 
 
 Q. Don’t you know that that impression has been created by the 
 fact that the water level is much higher than the water level in the 
 river at its nearest point ? 
 
 A. No. 
 
 1846 I never made any investigation myself in reference to that 
 matter. I don’t know of my own personal knowledge as to 
 
 this water having an underflow. It was only a general impression. 
 We have talked those things over. I have never made any 
 
 1847 personal investigation to determine that question. I have 
 never dug any wells. Yes, sir, I have stated that the alfalfa 
 
 crop has been less of late years than formerly, and some of the peo- 
 ple have been accustomed to pasturing the alfalfa after the last cut- 
 ting, and that has been found to be an injury to the crop. 
 
 Cross-examination. 
 
 By Mr. Campbell : 
 
 The distinction between the first and second bottoms is that there 
 has been a little rise of about four feet between them. Usually the 
 wild hay grows on the first bottom. The second bottoms are con- 
 sidered the best lands for agricultural purposes; that is, 
 
 1848 the second bottom that is cultivated by irrigation. As a rule 
 we do not pretend to irrigate the first bottom. 
 
 I can not answer how many acres of land are being irrigated in 
 this vicinity from the waters taken from the river. I don’t know 
 how extensively the irrigation is under the Amazon canal, which is 
 one of the main canals, the Great Eastern or the Farmers’ canal. 
 It would have an injurious effect upon the lands already irrigated 
 if the water were shut off from the Arkansas river and not allowed 
 to run in the ditches, but I couldn’t say to what extent, because they 
 are in pretty bad condition now. We could not depend upon the 
 land now under irrigation to raise crops if the water was shut off 
 from the Arkansas river. We might raise a crop and we might not. 
 There is considerable flood water coming down the stream which we 
 don’t make use of at all. I can form no estimate of how much land 
 these flood waters would irrigate if they were impounded and kept 
 from running down the main stream. If those flood waters could 
 be reservoired and the water was used for irrigation purposes here 
 
574 
 
 THE STATE OF KANSAS Vb. 
 
 it would have a beneficial effect upon them. I cannot form any 
 estimate of how much land these flood waters, if' impounded, would 
 reclaim from their now practically desert condition. I am 
 
 1849 familiar with the contour of this country around here to the 
 Colorado line. I know of one place along the Arkansas river 
 where a reservoir could be erected to catch these flood waters. 
 
 1850 It is out on the table land. There would be about 640 acres 
 in this natural basin. I couldn’t tell how much it would hold. 
 
 If there are reservoir sites in Colorado that could utilize and impound 
 the flood waters of the Arkansas river and we folks could get the 
 benefit of these impounded waters, it might be of vast benefit to us 
 here. Of course I think the more water that is stored, it makes a 
 humid atmosphere. 
 
 Redirect examination. 
 
 By Mr. Ashbaugh : 
 
 1851 The location of this reservoir site that I spoke of is about 
 7 miles northwest of Garden City. If there should be other 
 
 places found between here and the Colorado line similar to it, and 
 these waters should be impounded they could be used for irrigation 
 between here and the Colorado line, and the more land we get irri- 
 gated the better we are off. The greater amount of water that could 
 be stored and used would increase the productivenesss of this 
 
 1852 general country. I don’t think that the amount of water 
 pumped from these wells around here affects the underflow 
 
 to any appreciable extent. We crossed the old Santa Fe trail to 
 Fort Union, New Mexico, in 1865, loaded with Government freight 
 for the fort. We struck the river at Great Bend and followed up 
 the river to the Cimarron crossing. The Cimarron crossing is where 
 the town of Cimarron is now and from which it derived its name. 
 There was a good deal larger river then than now — a good deal 
 deeper banks and a good deal more water. We were on the river 
 that fall probably something near a month going and coming. This 
 was in October, 1865. 
 
 1853 I. L. Diesen, Garden City, Kansas. 
 
 Direct examination. 
 
 By Mr. Ashbaugh : 
 
 I live in Garden City and have lived here continuously since the 
 spring of 1885. My home is two and a half miles south of Garden 
 City and my business is farming and the cattle business and the ice 
 business. I own some land here about two and a half miles south of 
 the city, in the sand hills, and another piece adjoining the north- 
 west corner of Garden City. I have been acquainted with the Ar- 
 kansas river for 19 or 20 years. During the first two or three years 
 
THE STATE OF COLORADO KT AL. 
 
 575 
 
 I was here it never was dry at any time. There was always 
 
 1854 some water in it, and during the dry season of the year I 
 should judge the water was from a foot to a foot and a half 
 
 deep. As to the flow during the dry season of the year for the last 
 ten years, excluding the year 1904, 1 think it was perfectly dry about 
 two or three months every year with the exception of one. During 
 the present year there has been plenty of water until the last week 
 or so. Yesterday, September 19, there was what I would term prac- 
 tically no water in the river. There w 7 as a little bit of seepage there, 
 but it is what I should call dry. 
 
 Examining Complainant’s Exhibit A-45, I recognize that as a 
 picture of the Garden City bridge across the Arkansas river. 
 
 1855 Assuming that it was taken in the month of April, 1904, it 
 was a fair representation of the river as it appeared yesterday 
 
 when I examined it. For the last few years, excepting the year 
 1904, the river has been dry as shown in that picture from about 
 five to eight months each year. It was dry after July 25, 1903, and. 
 from that on all fall and all last winter and until April or May, 1904. 
 It was as dry as shown in that picture. I am acquainted with the lo- 
 cation of the fair grounds in this city. They are on the first bottom 
 lands. The first bottom lands at the fairground are just about half 
 a mile wide; then beyond the first bottom lands the second bottom 
 lands are about two and a half miles wide, and the second bottoms 
 are from three to five feet above the first bottoms. The fair grounds 
 are located between the court house and the river and on the 
 
 1856 west side of main street. I remember the lake or pond that 
 was right near the site of the fair grounds in former years. 
 
 That lake was about 60 or 70 feet wide, and the length, possibly, all 
 told, would be between one fourth and one third of a mile. 
 In the early days it used to be three or four feet deep — 
 deep enough for men to go swimming in it, and they did use 
 to go swimming in it, and there used to be fish in it. I have not 
 seen the lake for the last thirty days, but for the last five or ten 
 years it has not had any water in it to speak of. The water that 
 supplied that lake came from what were called springs at the upper 
 end of the lake — seepage out of the groilnd. I should call it the 
 underflow. The lake has no inlet and has no connection at all with 
 the river. There is an outlet to it. It emptied back into the river 
 about half a mile east of Main street. The bridge on the 
 
 1857 street south from the city is across that outlet. The cause 
 for that lake going dry I expect was because no water comes 
 
 in at the upper end. That would be my judgment. I think the 
 lake didn’t go dry before the river went dry. The water in that 
 lake did rise and fall with the water in the river. There are some 
 other lakes or ponds this side of Deerfield that I have seen as I have 
 been passing along, but living far away from them, 1 never gave 
 them close attention. They have pretty nearly the same character- 
 istics as this one here. Whether they have gone dry or not I couldn’t 
 say. I haven’t been up there lately. The underflow under the first 
 
576 
 
 THE STATIC OF KANSAS VS. 
 
 and second bottoms here and on each side has gone down in these 
 later years. In 1885 I dug two wells on this land adjoining 
 
 1858 the city. It was 6 feet and 6 inches to water at that time. 
 In the spring of 1889 I dug a large well for the purpose of 
 
 pumping water for irrigation. It was about 7 feet 8 inches at that 
 time. In 1892 I put down two more wells and the water at that 
 time was a few inches less than ten feet deep. Two weeks ago I 
 had that pump out getting it repaired, and I measured the water in 
 the well and it lacked one inch of being 11 feet to water. All these 
 wells were so located that by comparison of one with the other they 
 show that the underflow has gone down the difference between these 
 figures. The lowering of the underflow has had the effect that 
 there are not as good crops produced in this valley land as there 
 was in the earlier days. This condition of affairs extends up and 
 down the valley through this county so far as I know. 
 
 Along about 1885 to 1891 there was water enough in the pond 
 that I spoke of down here in the fair grounds so that we could cut 
 ice on it in the winter. At that time we had reservoirs built just 
 before it enters the river east of Main street and had ice houses there, 
 and this stream furnished the water to fill those ice houses. They 
 furnished ice for home consumption. There was not any winter 
 between 1885 and about 1891 that we didn’t get ice off from 
 
 1859 it. There has not been water in that enough for the last ten 
 years to furnish ice in the winter. It might be that on the 
 
 lake proper there would be some little time in the last ten years that 
 you could cut ice, but not in the reservoirs. You could not on the 
 lake within the last five years that, I know of. 
 
 As to the ditches in this county, there is the Garden City ditch, 
 and the one' now called the Farmers ditch, and then farther west is 
 the Amazon. The Amazon extends into the northwest part of this 
 county. The Great Eastern is in Kearney county and extends down 
 into Finney county. Some of the laterals reach within four miles 
 of Garden City. The Garden City <1 itch is nearest the city of Gar- 
 den City, and its head-gate is about five miles west of the 
 
 1860 Garden City ditch. The Garden City ditch is about 8 or 9 
 miles long. It was dug before my time in this country’’. My 
 
 understanding has always been that it was dug in 1879 or 1880. At 
 the present time it goes by the name of the Garden City Irrigation 
 Association. It was in very’ good condition in 1885. The title of it 
 when 1 came here was the Garden City Irrigating, Water Power and 
 Manufacturing Company. The whole ditch was dug in 1885 when 
 I came here, and there was water then running in it. I had water 
 on my farm from it at any time I wanted it that whole season of 
 1885. In 1886 it was pretty much the same, but I think there was 
 a little water in August of that year. 1887 was about similar to 
 1885. We had water the whole season, virtually. In 1888 
 
 1861 we had very little water after the summer rise or flood. In 
 1889 there was very little water. In 1890 about the same as 
 
 1889. Since 1890 it has been about the same thing right along. 
 
Mr STATE OR COLORADO RT AL. 
 
 57 ? 
 
 Some years when there was a big lot of overflow water — floods — we 
 had water for thirty or sixty days, and when there wasn’t so much 
 flood we didn’t have so much water. I don’t know that there was 
 any perceptible difference in 1901, 1902, and 1903. At certain times 
 during these recent years when this flood was on or whenever the sum- 
 mer waters came there was enough water to supply the needs of the 
 farmers for irrigating purposes. After that water bad run out the river 
 was dry and the ditch was dry. There was another ditch near here 
 called the Kansas ditch, now called the Farmers ditch. I 
 
 1862 think it is sometimes called the Illinois ditch. I couldn’t say 
 positively what the Kansas ditch was originally called. I 
 
 think McCord and one of the Hudsons were interested in it. I think 
 C. J. Jones and J. W. Wicks were interested in it. I should say 
 that that ditch furnished water within a mile and a quarter of Gar- 
 den City for irrigation purposes. That was all constructed before 
 my time. Between the years 1885 and 1890 I know all the farms 
 under it, as I gather them in my mind, were irrigated from that 
 ditch. During the last five years prior to the year 1904 there was 
 not as much irrigating done, because they didn’t have the 
 
 1863 water. That is also true of all the ditches in this county. 
 My understanding is that Mr. James Craig had something to 
 
 do with the construction of the Garden City ditch as well as the 
 Great Eastern. 
 
 The diminution of the water in this country and this county has 
 reduced the crops in the river valley, especially on the hay bottoms, 
 and it has caused the people who are growing orchards to irrigate 
 them more than they did before to keep them growing. The loss 
 of water for irrigation purposes upon the agricultural interests of 
 the county has been very large. It has had a material effect. I ex- 
 pect it has decreased the acreage of cultivated lands in the county 
 at least one third. The lands under these irrigating ditches have 
 not been as productive during the last few years as they would have 
 been if there had been as much water in the ditches as there was 
 the first five years that I knew them. I think the value of 
 
 1864 the land is not as great as it would have been if there had 
 been as much water, the value of the land being determined 
 
 by its productiveness. 
 
 (Complainants Exhibits A-46, A-47, A-48, A-48J, A-49, and 
 A-49J introduced in evidence. Objection to all of the foregoing 
 exhibits.) 
 
 1866 Cross-examination. 
 
 By Mr. Hayt : 
 
 What I would like to have is more water for irrigation. This 
 would be to the benefit of this section of the State, in my judgment, 
 and it is what all the people here want. I hope to get more water 
 for irrigation as the result of this suit. 
 
 37—7 
 
STATE OF K ANSA ^ V'tL 
 
 The first year I came here, in 1885, the rainfall throUgb- 
 
 1867 out this country was not quite up to the average. In 1886 it 
 was about the same as in 1885. There was quite a little bit 
 
 more in 1887. In the fall of 1887 the water overflowed the fail- 
 grounds where that lake I have spoken of was located. There has 
 been no river channel through there since I have lived here. 
 
 1868 There might have been such a channel years ago. In my 
 judgment this whole bottom has been filled in here by wash 
 
 brought down by the river at some time in the past years. This is 
 a river of shifting sands more or less and changing channels at dif- 
 ferent places. Sometimes it runs on one side and sometimes on the 
 other. 
 
 This lake or pond was fed by springs. I don’t know positively 
 the source of supply of those springs. There is higher ground 
 
 1869 on this side, but what experience I have had in digging wells 
 half a mile and a mile north of that would not indicate (o 
 
 me that there would be any water higher. I don’t know of any 
 place about here where the water is on a higher level than the water 
 in the river at this point. It may be true, yes, sir, that the general 
 water level of the country follows to some extent the contour of the 
 surface, but I don’t think this is true in this valley. I think 
 
 1870 this underflow reaches out from the river on a level or nearly 
 so. I have never made any investigation to determine 
 
 whether the water level 15 or 20 miles away is higher than at the 
 river. I only judge from what men tell me as to how deep the water 
 is. If it should be found by investigation that the water level of 
 the country 10 or 15 miles away from the river was higher than the 
 water level of the river, I don’t think that would change my opinion 
 as to the source of supply of this water. As to the water that falls 
 upon the drainage of the Arkansas river in the vicinity, the part 
 that don’t go into the ground I suppose goes into the river. That 
 which goes into the ground I should think would go to supply the 
 general water level of the country, provided there is any of it gets 
 through far enough. 
 
 In June and July, 1902, there was plenty of water in the 
 
 1871 river for these ditches; that is, the first part of July. I don’t 
 know as it was the entire month. But none later in the fail. 
 
 This year there has been quite considerable water in the river all 
 the year up to the last fifteen or twenty days. In my opinion there 
 has been enough to supply all of the ditches so far as they needed 
 water. 
 
 I don’t know that there is any perceptible difference in the 
 
 1872 value of land now from what it was in previous years. In the 
 river valley lands are worth $35 an acre, and on the high 
 
 lands probably twenty to forty dollars. I think these values have 
 remained about stationary for the last ten or fifteen years. I would 
 say they are as valuable at this time as they have been at any time 
 in this historv of the countrv. 
 
T#E STATE OE COLORADO ET AL. 
 
 579 
 
 hoppers came, this year. This has been a rainy season and we have 
 had plenty of water in the ditches. We have had considerable. I 
 account for the crops being backward in this way : In the first place 
 our rains came late, about the last week in April, and there was no 
 water in the river until about that time or afterwards, and vegeta- 
 tion couldn’t start, or didn’t start, and about the time it got started 
 then came the grasshoppers very badly. Alfalfa here is 
 
 1873 started both with and without irrigation. It is pretty diffi- 
 cult to start it without irrigation in the ordinary season. It 
 
 has always stood the drought pretty well after it got started until 
 this underflow went down. I should say it stands the drought bet- 
 ter than any other crop. In my judgment the water should come 
 with- three or four feet of the surface to get the best results in a 
 crop of alfalfa. I know that the roots will go down twelve to fifteen 
 feet to water, and sometimes make a good crop at that depth. It 
 would possibly make a fair crop without much moisture on the sur- 
 face. I can’t say whether it is a common experience of those rais- 
 ing alfalfa in this vicinity and in the counties in Colorado adjoining 
 that where the water level is 6 or 8 feet below the surface of the 
 ground it is better for growing alfalfa than where the water 
 
 1874 comes within two or three feet of the surface of the ground. 
 That is not my experience here. Possibly if the water level 
 
 came nearer than three feet it would result in rotting the roots and 
 destroying the crop. I have heard men that have had experience 
 say that if the water level should stand at that depth from the sur- 
 face for some length of time it would destroy the crop. I have 
 some stock in the Garden City ditch, but am not an officer of the 
 company. I raise crops both witli and without irrigation. 
 
 Cross-exami nation . 
 
 By Mr. Rogers : 
 
 1875 I have given a good deal of attention since I have lived in 
 this country to the methods by which this country may be 
 
 made prosperous. I have always understood this to be the arid 
 region. I should say that the arid region commences about Kins- 
 ley, Kansas, and that from there on to the west it is a country in 
 which crops can not be grown successfully without irrigation. The 
 problem in this locality has been to get the water with which 
 to irrigate these lands, and I understand it has been recognized in 
 what I have designated as the arid part of Kansas that we had a 
 right to take out the waters of the river as far as we could 
 
 1876 get waters and use them in the irrigation of these lands. I 
 don’t recall any instance of anybody disputing our right 
 
 to take out water for irrigating purposes. (Objection.) The 
 nature of this suit has been discussed more or less in this 
 community. I expect that the bill filed by the State of Kan- 
 sas against the State of Colorado purports to be on behalf 
 of the owners of lands adjoining the Arkansas river in this 
 
tfHii STATIC OP* KANSAS V& 
 
 part of Kansas as well as in all other parts of Kansas. 1 
 
 1879 should think, therefore, that the State represents me as well 
 as all other land owners in this vicinity. I don’t understand 
 
 that this bill was brough- as a negative upon the right to take the 
 water out for irrigation as against the right to have it continue un- 
 impeded and unobstructed through the State of Kansas. (Objection.) 
 If it is true that the object of the amended bill is to have the 
 Supreme Court declare that all the waters of the Arkansas river 
 shall flow through the State of Kansas without being taken 
 
 1880 out for irrigation, I would be in favor of it. (Objection.) If 
 this river was flowing full of water or the average flow of 
 
 water the underflow or the sheet water of this country would be any- 
 where from four to five feet high and this valle}' would be worth 
 considerably more than it is today, instead of having a dry 
 river. 
 
 1881 I was called as a witness before a Senate committee that 
 came here to investigate conditions in western Kansas in 
 
 1889 when Senator Plumb was here, but I don’t remember whether 
 I testified or not. I don’t think I did. I was present one afternoon 
 at the hearing a little while. 
 
 I have studied irrigation and have been trying to get more water 
 since the spring of 1889 when I commenced pumping water. In 
 1886 I first went to Colorado to the first water melon picnic 
 
 1882 at Rocky Ford. There were some few ditches up in that 
 neighborhood then. I saw the Rocky Ford ditch, but I didn’t 
 
 notice the Catlin ditch. We knew they were building ditches in 
 that part of Colorado. We were getting less water here, and they 
 must have taken it out somewhere in ditches. That is what made 
 me think of pumping water. It was in 1889 when we began to 
 notice it. I suppose large sums of money were being invested in 
 these enterprises but I have no way of knowing. I know of a few 
 people who went from here and settled under those ditches, 
 1888 but not many. I don’t think they were very successful at 
 that time, but the}' have had better success since then. I 
 guess there was considerable complaint at that time by people in this 
 vicinity concerning the taking out of water in Colorado, but it was 
 not made public. There was nobody to make it to. The ground 
 on which it was made was simply because we were not getting any 
 water here at all. They were taking it all. We couldn’t get any 
 water for our ditches, and that was the ground of our 
 1884 complaint. As to whether the people in western Kansas 
 have endeavored as far as possible to follow the course 
 marked out by the people of Colorado in respect to irrigation, I 
 think the reverse is true. I think Colorado has been following us. 
 Our ideas of irrigation were formed in advance of those of Colorado, 
 I think, and this part of Kansas and Colorado have been proceeding 
 along common lines. There is no doubt that the}' are mutually in- 
 terested in irrigating their respective lands. The climatic condition 
 of the lands west of Kinsley and of Colorado are very nearly the 
 
THE STATU OF COLORADO ET AL. 
 
 581 
 
 same, and the lands are equally fertile and equally in need of water 
 from somewhere. 
 
 There has been a good deal of mutual interest in developing this 
 part of the United States. We have had irrigation conventions here 
 in Garden City from time to time, and they have been attended by 
 irrigators from Colorado and our people have gone to meetings in 
 Colorado to discuss irrigating, and also to the irrigation con- 
 
 1885 gresses that have been held from time to time throughout 
 the United States. So that as a matter of fact there is no 
 
 doubt that Kansas west of Kinsley has been more in sympathy or 
 more aligned with interests in Colorado in respect to its development 
 than it has with that part of Kansas east of Kinsley, because they 
 have practically the same conditions. Mv view is that whatever is 
 for the interests of Colorado in respect to the diversion of 
 
 1886 water is for my interests, if you would give us half the water. 
 (Objection.) I certainly would not have any cause fora con- 
 test if the men who have equally settled this valley here with the 
 men in Colorado and put in their money got their share of the water 
 for irrigation purposes. 
 
 I spoke of two wells in which the water was 6 feet 6 inches below 
 the surface of the ground. One was dug in April and the other in 
 September, 1885. T can give the months when I found the 
 
 1887 water at certain levels, I think. In 1889 that was either the 
 last of March or the first of April when I dug the big well. 
 
 In 1892 that was in the spring, either in April or Ma}\ In 1904 I 
 merely measured the well. That was about two weeks ago, which 
 would make it the first week in September. Those wells were at the 
 same place on the farm here in section 7, 24-32 west, southwest 
 quarter. 
 
 Cross-examination . 
 
 By Mr. Campbell : 
 
 Yes, I have been thinking considerably about irrigation 
 
 1888 matters for the last few years. I began to study irrigation 
 matters more in the winter of 1888 and 1889 than any other 
 
 time, the reason being that we got very little water in the year 1888 
 out of the river to irrigate from, and I had started a }mung orchard 
 and made up my mind I had to have some water, and that is the 
 reason why I put down this well in the spring of 1889. I have been 
 making a study of these matters more or less ever since. I would 
 say that the arid region begins near Kinsley, which is east 
 
 1889 of here about 86 miles, I believe. I would say that there is 
 possibly 75,000 to 100,000 acres of land irrigated in the State 
 
 of Kansas in the Arkansas valley. Before this land was irrigated 
 in some seasons it would produce a crop but we could not depend 
 upon it to raise a crop without irrigation. If the people in this sec- 
 tion of Kansas were prevented from taking the waters of the Arkan- 
 
582 
 
 THE STATE OF KANSAS VS. 
 
 sas river for the purposes of irrigation the land referred to 
 
 1890 would probably go back to cattle and to raising rough forage 
 crops. If the people along this river should now be deprived 
 
 of the right to take waters to irrigate this 75,000 to 100,000 acres of 
 land it would probably lessen the population some and the country 
 would naturally go back. Probably it is so, that property 
 
 1891 has increased and population has increased by reason of the 
 increase in irrigated lands. Considerable flood waters pass 
 
 down the river that are not used for any purpose whatever, and if 
 they were impounded in reservoirs in the State of Kansas, undoubt- 
 edly the waters that now go to waste could be used for the purpose 
 of irrigating a a large body of land which is now arid and unpro- 
 ductive. There are probably some reservoir sites of small capacity 
 in the State of Kansas between here and the Colorado line. There 
 is no doubt that the more land we can irrigate from the waters of 
 the Arkansas river the more population will come in and the more 
 valuable our lands will become. I couldn’t say whether the im- 
 pounding of waters now going to waste would be of greater benefit 
 to us than the preservation of the underflow. 
 
 1892 Redirect examination. 
 
 By Mr. Ashbaugh : 
 
 I think the Arkansas river between its banks was about a thou- 
 sand feet wide when we built the bridge in 1885, and my judgment 
 is that the river between the banks today is about 850 feet wide, but 
 it might be 960 feet wide. 
 
 1894 C. S. Longstreth, Garden City, Kansas. 
 
 Direct examination. 
 
 By Mr. Smith: 
 
 I live at Lakin, Kearney county, Kansas, and have lived there 
 since 1884. I am farming and fruit growing, and have 240 acres of 
 land. I went to Kearney county first in 1873, at which time I was 
 connected with the Santa Fe Railroad Company, and was with the 
 Santa Fe Railroad Company until about 1886. I was in the 
 
 1895 land department of the road and we were experimenting 
 here and throughout this country as to whether anything 
 
 could grow or anybody could live here and the road opened up ex- 
 periment stations at different points and I was employed in that 
 work. We gave a good deal of attention to forestry, and of course 
 experimented with other things. I was one of the earliest settlers; 
 of Kearney county. 
 
 My land lies under the Western ditch. It takes water from the 
 Arkansas river about 8 or 9 miles west of my place. The 
 
 1896 Western ditch is about 25 miles long. That ditch is all in 
 the bottom. It goes out from the river and runs back to the 
 
THE STATE OE COLORADO ET AL. 
 
 583 
 
 river again. It takes in the valley and the bottoms there. The 
 Western ditch was started either in 1879 or 1880. It was then called 
 the Minnehaha ditch. I became connected with it in 1880. The 
 name was changed in 1881. I believe I operated that ditch myself 
 and opened it all clear oat through the whole length, I think, and 
 then it was finished afterwards by other parties. I opened it through 
 so that the water was running the whole length. We were using 
 the water, and it was made some larger afterwards. I home- 
 
 1897 steaded land there that I live on now. 1 commenced irri- 
 gating from that ditch on my own land in the spring of 1885, 
 
 I think. When we built that ditch in 1879 or 1880 I couldn’t state 
 what the average flow of the Arkansas river was at that point. 
 There was an abundance of water, I know, flowing all the time. 
 The river was never dry in those years. It was a running stream 
 the year round. The supply of water in the ditch at that time was 
 splendid ; it was sufficient at all times at that time. I didn’t notice 
 any falling off in the supply of water there for some time afterwards, 
 down to about 1886 or 1887,1 think, somewhere along there. I noticed 
 that there were periods we couldn’t get a supply of water in the 
 ditch. That would be along in the late summer or fall. I think 
 the first time I ever saw the river dry was in September, 1886, 
 or 1887. That decrease in the flow of the water in the river 
 and in the ditch continued, and it has been growing less ever 
 
 1898 since that time. I think there was one season there we didn’t 
 get any water at all during the season. This was along in 
 
 1893 or 1894. We have done some irrigating every season. We 
 generally have water there along the first of June. We very seldom 
 get any water in, though, until about that time. But about the 
 months of July, August, and September, we oftener didn’t get any. 
 Generally speaking, it is great chances if we get it. This season it 
 has been a very stead) 7 flow. The fact is it has been a better season 
 this season than it has been for a number of years. It is more regu- 
 lar. There is not half the water in the river now from about 
 
 1899 1892 to 1903 that there was in the river throughout the sea- 
 son at the time we built that ditch. In the growing season — 
 
 July, August and September — as compared with the earlier years, 
 it would be in about the same proportion, I should judge about fifty 
 per cent, less than it was in those years. Prior to this year it has 
 been dry most every year of late at some period of the season, gen- 
 erally through the late fall. In September and October it is dry and 
 stays that way until it comes cold weather and then it will rise and 
 the water will come in some, but there is not near the water run- 
 ning in the river as it used to. Then it is dry again in the spring 
 along about the last of March and through April, and the first of 
 May it is generally dry. Then the water comes in June, and then 
 as a general thing the water will come down as heavy as ever. It 
 will be just for a few days only; it will not last. 
 
 On my place we generally raise alfalfa and farm crops. I 
 
 1900 have considerable fruit on my place. I have about 70 acres 
 in orchard. I think the first alfalfa I sowed there was in 
 
584 
 
 THE STATE OF KANSAS VS. 
 
 1886, a year or two after I opened it up. I can raise alfalfa there 
 successfully without irrigation, but can’t raise a full crop. We can 
 raise a good deal more with irrigation, but I can raise a very good 
 crop there without irrigation. Whether the decrease in the flow of 
 water in the ditch affected the productiveness of my lands depends 
 a good deal upon the season. In some seasons it has caused total 
 failures. Generally speaking, on the average the productiveness of 
 my land has become affected by the decrease in the flow of water. 
 The loss of water, not having it regularly, has affected the product- 
 iven-ss of my land I should say in a general way fifty per 
 
 1901 cent. There is no question about that. As to the times when 
 we usually irrigate, that depends a little on circumstances. 
 
 We are governed a good deal by the season. If the season is very dry 
 we irrigate it most any time in theseason. We irrigate it in the winter 
 if itis very dry, but in the spring if we get rain for along time we don’t 
 irrigate it until later along, whenever it needs it. We most generally 
 make a practice of irrigating immediately after cutting the crop, 
 and if we fail to get water at the season when it is needed for alfalfa 
 it decreases it. This general effect that I have described as to my 
 land exists among my neighbors as well. I don’t think there is a 
 great deal of difference in the amount of cultivated land under the 
 ditch now as compared with what it was when the ditch was run- 
 ning full. Most crops that are raised there are forage crops, and of 
 course there is alfalfa and sorghum and such feed as that raised for 
 forage mostly. There has been a decrease of growing grain crops 
 and anything of that kind. There is nothing of that kind 
 
 1902 grown now compared with what it used to be. Last year, 
 1903, the flow T of water was not nearly as regular nor as much 
 
 as it has been this season. It has been more regular this year than 
 it has been for three or four years anyway. We have had a more 
 regular flow. I don’t know as any more water ran down the river, 
 but it has been more regular. As to the effect of the decrease upon 
 the value of my land, it has affected the producing capacity of it, of 
 course. It has decreased it. That is generally true of land 
 
 1903 under the ditch along the bottom there. There is about 
 twenty-four or twenty-five acres of land under that ditch that 
 
 can be irrigated — that is subject to water from it — all of which has 
 been affected more or less the same as mine. Don’t understand that 
 I have that much under cultivation. There is that much under 
 the ditch that can be w r atered from it. The decrease in the flow T in 
 the ditch and my inability to irrigate has had an effect on my fruit 
 crop. It has decreased its productiveness in the same way as with 
 the alfalfa. 
 
 Cross-exa m i n ati on . 
 
 By Mr. Dawson : 
 
 It was in 1886, I think, that I set the first orchard out at my place. 
 So far as my experience with orchards is concerned, I have 
 
 1904 been growing fruit for fifty years. There has been only one 
 year, I think, when I failed to get water to irrigate the land 
 
THE STATE OF COLORADO ET AL. 
 
 585 
 
 entirely, and that was either 1893 or 1894, as near as I can remem- 
 ber. 1 couldn’t say that was — exceptionally dry year. I don’t 
 know. All I know is that there was no water in the river that year 
 for irrigation purposes. It was not because the ditch was out of re- 
 pair. I know that. I know the facilities for getting the water into 
 the ditch were complete that year. We had at the head of this 
 Western ditch what you might call a permanent dam made 
 
 1905 of rock, and that is there yet. It extends across the river 
 now. At that time it didn’t extend clear across. I think the 
 
 year we didn’t get any water there was no water going around the 
 end of the dam. I should judge the dam is two or three feet high. 
 I don’t know how the back side of it is filled in. They have a 
 waste-way at the head-gates that the sand washes and leaves the 
 channel clear into the head-gate of the ditch. When the ditch 
 closes down the water doesn’t go over the dam, it goes through the 
 waste-wav going out into the river. The waste-way will not carry 
 all that the river sometimes carries. It carries it full, though, 
 
 1906 and leaves the channel clear at the head-gates when the river 
 goes down. When there is more water than goes into the 
 
 head-gate or waste-way it simply runs over the top of the dam. It 
 has to. We have not left any opening in the dam, I think. I don’t 
 know but what there are some openings washed in it. I didn’t build 
 the dam. It was in 1884 that I moved my family under that canal. 
 At that time I was representing the Santa Fe Railway Company and 
 of course I was on the ditch and worked there too. I had been rep- 
 resenting them solely before I went there. I had been there as early 
 as 1873. I was there on the river in 1874. I stated or intended to 
 state that the first time I ever saw the river dry was in 1886 or 1887. 
 I don’t think I saw the Arkansas river in 1874 when it had practi- 
 cally no water in it. I think the river was about as full that season 
 as I ever saw it. It was out over the banks here all that fall, I 
 
 1907 know. I don’t know that the year 1874 was one of the 
 driest years so far as the flow in the river was concerned 
 
 that has ever been known on this river. I know right the oppo- 
 site. Tf witnesses at Dodge City and Wichita and Kinsley testified 
 that in 1874 the river was practically dry from Wichita to the Col- 
 orado State line they were mistaken. I saw the river in both 
 1876 and 1877. In neither of those years the river was practically 
 dry here in Kansas anywhere from Dodge City west. There was 
 ample water in the river at this point and from here west in those 
 years. In 1880 there was plenty of water in the river at this 
 point. So that up to 1886 or 1887 I had never seen the river dry 
 so that there was not flowing water in it at this point. My 
 
 1908 knowledge of the river covers a period from 1873 up to that 
 first time in 1886 or 1887. When I say I never saw the 
 
 stream at any time of the year when there was not running water 
 in it at this point and from here west, I saw it dry east of here, 
 though. I saw it dry at Hutchinson. It was dry most every season 
 up there along through the summer time. I couldn’t testify any* 
 
586 
 
 THE STATE OF KANSAS VS. 
 
 thing about the river beyond Hutchinson. I knew as much about 
 the river at Hutchinson from 1873 up to 1880 as I did about this 
 point. I was on the river during that period of time, and was there 
 as much as here. 1 was employed on the road and my work car- 
 ried me along the road clear from Hutchinson to the State line. I 
 was going back and forth, so that I was familiar with all the river 
 between Hutchinson and the Colorado State line. I think it is a 
 fact that at Hutchinson, Kansas, during the period from 1873 on up 
 to the present time, the river has been dry at various times during 
 the season in almost every year, or the majority of them. I 
 
 1909 know I very frequently found it dry there. I remember well 
 in 1878 anyway the river was dry at Hutchinson. I had 
 
 occasion to cross it a number of times at that time. I drove across 
 it. It was dry. It had not a particle of water in it. I think prob- 
 ably through August and September in 1874 the river was practi- 
 cally dry at Hutchinson and from there down. I couldn’t be posi- 
 tive about that though, but that is my best recollection. 1874 was 
 the grasshopper year. I couldn’t say anything positively about the 
 condition of the river at Hutchinson. I know it was dry 
 
 1910 very often. There might have been water in it all of the 
 season in the year 1877. I couldn’t say. As a general propo- 
 sition, then, you would very often find the river dry some time 
 during the summer season or early fail at Hutchinson and from 
 Great Bend east. I used to notice that a great deal. It would run 
 dry when there was always plenty of water running in the river 
 here. At the same time that I would find the river dry at Hutchin- 
 son I would find water running in the river here at Garden City 
 and up about Lakin. A good flow of water. 
 
 I believe I know where this bridge at Garden City is, but I am 
 not right certain of that. I know it is right down here on Main 
 street. I would find the river bed generally covered, I guess, here 
 at Lakin, when I would find the river dry east. How deep, I 
 couldn’t say. It would generally be running, as a rule. Of course 
 in some places it would deepen and run in a narrow channel and 
 in some places it would broaden out clear across. I believe 
 
 1911 the channel here where I would find it covered was anywhere 
 from eight hundred to a thousand feet wide. The water here 
 
 would not be over a foot deep anyway, and I would not suppose it 
 was running clear across. It would be a good flow of water. That 
 would generally be through the months of August and September. 
 
 The 250 acres of land where 1 live is all under cultivation, a large 
 proportion of it in alfalfa. I am on section 4, township 24-36. I 
 raise the ordinary crops that have been described as common to 
 this part of Kansas, and in addition to that I have somewhere about 
 seventy acres of orchard. I just finished irrigating the orchard last 
 week for the last time. I have irrigated my orchard five times 
 
 1912 this summer. I know that will bring the best results. I 
 plough the orchard about once in three years. I work 
 
 the ground all up once in three years. In running the water 
 
THK STATIfi OF COLORADO KT AL. 
 
 587 
 
 through the orchard for irrigation I flood it. I run it in fresh 
 ploughed ditches every season, perfectly clean. You couldn’t 
 run water any other way and do it successfully. I have no interest 
 in this Western ditch now. I have no ditch in which I am person- 
 ally interested as an owner, and I don’t want any. I rent water from 
 the Western ditch. I take water out of the ditch for only a 
 
 1913 part of my place. I just simply had water for the orchard 
 part of this season. I take from season to season just as much 
 
 water as 1 think 1 need and can get, and I don’t irrigate all of my 
 land every year. I can’t be sure of crops in that section of Kansas 
 without relying on irrigation from year to year, and so far as the 
 value of farm lands in that country is concerned they most generally 
 rely upon water for irrigation. The productiveness of my land has 
 most certainly been affected by lack of water for irrigation. I have 
 at all times taken from this ditch all the water I could get, when I 
 needed it. This year I have not irrigated all of my land. While 
 the ditch had an ample supply this year, I didn’t know this spring 
 that it was going to. I have got to know in advance whether 
 
 1914 1 am going to have any certainty of it. The lack of produc- 
 tiveness of my land this year grew out of my not being sure 
 
 of getting the water. I could have had the water if I had put all 
 my land in this year, by taking chances on getting the water, but 
 I was not sure of getting it. If I had known I would be sure of it 
 I would have put it all in. For that reason I have lost the crops I 
 could have put in if I had gotten the water. If I had put them in 
 I would have gotten the water. There has been sufficient water 
 this season, but last year there was not, and the year before, and 
 there have been so many seasons we haven’t had it that I didn’t 
 want to take those chances. For that reason, lack of water hereto- 
 fore is the reason I didn’t put it in. 
 
 I think the flow of the Arkansas river in my vicinity has fallen 
 off a great deal of late years, about fifty per cent, or more, and that 
 decrease also applies to the winter flow. I think the winter flow in 
 the last eight or ten years is about fifty per cent, less than it 
 
 1915 was when I first knew it. I couldn’t say that I have noticed 
 any lessening in the flow of any other streams than the Ar- 
 kansas river of late years. I have not had an opportunity to do 
 that. 
 
 I have been up in Colorado along the Arkansas river probably a 
 dozen times in twenty years ; not more than that. As to what I 
 attribute this falling off in the Arkansas river in late years to, I will 
 say this, that I believe if we had as much timber in Colorado as we 
 had twenty years ago we would have pretty nearly the same flow of 
 water. I think it has a great deal to do with it. I think you are 
 allowing your timber to be destroyed up there, and you are destroy- 
 ing yourselves. I lav it more to that than anything else. 
 
 1916 There is no water that I know of taken out of the Arkansas 
 river for irrigation during the middle of the winter. There 
 
 is very little anyway. And it is most assuredly true that the very 
 
588 
 
 THE STATIC OF KANSAS VS. 
 
 fact that the flow of the river in the winter has decreased in accord- 
 ance with the flow in the summer indicates that something besides 
 irrigation has affected it in part at least. I think it is the cutting 
 off of the timber at the head waters of the Arkansas river and its 
 tributaries that is largely responsible for that. That has been my 
 opinion for years. You retimber the mountains there and you will 
 have the flow of water increased. There is no question about that. 
 
 The June flow we have in the Arkansas river still comes down 
 about the same in amount, but it does not last so long. That is 
 another indication that something lets the water get away faster. 
 And when you eat off all of the grass of the mountain country and 
 trample up the brush and cut off the timber the snow in the spring 
 soon goes off, and it goes off in a greater hurry and doesn’t last so 
 lon K- 
 
 This farm of mine is worth as much on the market to-day as it 
 ever was except in boom times. I don’t think anybody has money 
 enough to buy it. It is there permanently. It is not for sale. It 
 suits me all right. I should judge there is somewhere in the neigh- 
 borhood of one hundred thousand acres under ditch in my county. 
 I couldn’t say positively. These lands under the ditch are certainly 
 much more productive when they have ample irrigation than with- 
 out it, and when they are properly irrigated they will certainly 
 produce more and support a larger population than without irriga- 
 tion. 
 
 There is a great deal of water which runs to waste in the flood 
 waters of the Arkansas river. It is a river which many times dur- 
 ing the season has a very large flow of water in it by reason of 
 heavy rains and floods. If these waters could be stored they most 
 certainly would be sufficient to bring under irrigation many thou- 
 sands of acres of land that are now arid. There are along the drain- 
 age area of the Arkansas river in western Kansas many thousands 
 of acres of unirrigated lands at this time which are suitable for irri- 
 gation. There are opportunities for the storage of this water by the 
 construction of storage reservoirs within Kansas, almost natural 
 reservoir sites. A few years ago I had an engineer that made a 
 kind of preliminary survey or something of that kind between this 
 and our place, between here and Lakin, and on the north side here, 
 and I think here right north of Sherlock, about seven miles north 
 of here, there could be a reservoir placed m there, and one or two 
 others west of that, between here and there, that would make good 
 reservoir sites, but what the capacity of them would be I don’t know. 
 I remember his saying at the time that one of them would hold a 
 depth of water I think of probably fifty feet, covering somewhere 
 near a quarter section of land, I think. I know that at the time I 
 asked him the question as to how long that water would stay in 
 there if it were put in. I thought it would evaporate. He said if 
 it was once filled it would never go out. It was a deep reservoir. 
 We have one good reservoir site right on the ditch, right on the 
 bottom, that if once full of water would irrigate that whole valley 
 
u*Me state of Colorado e^ al. S§9 
 
 there in dry seasons. It is a small valley in there, twenty-five 
 thousand acres, that I speak of, along that ditch. And that reser- 
 voir site would care for that valley — that twenty-five thousand 
 acres, — throughout the dry season. Of course I wouldn’t say it 
 would be ample for it without any other water, but the water we 
 generally get would be sufficient. 
 
 I have been interested in the subject of irrigation for some years, 
 and I have made such efforts as I could to try and develop the 
 State. I have pioneered in that line here in Kansas. I have taken 
 some interest and kept track of the development of Colorado 
 
 1920 along that line. I have lodged no complaint and started no 
 suit and filed no protests against Colorado developing her 
 
 irrigation projects. This matter of irrigating the land has been dis- 
 cussed among the people of my county. Certainly they have an 
 interest in having the lands irrigated, of course. It is our depend- 
 ence there, you might say, that is, in an agricultural way. It has 
 been under consideration and discussion by our people ever since 
 the settlement of this country. The irrigated land itself has brought 
 the settlement in along the river. For approximately twenty years 
 that subject, I think, has been considered more or less by the people 
 through this section. 
 
 I heard of this suit begun by the State of Kansas when it 
 
 1921 was first talked of, in the beginning. My understanding was 
 that the State of Kansas claimed to be representing our 
 
 citizens along the Arkansas river. (Objection.) I don’t know what 
 they would be representing if they didn’t represent them. If this 
 amended bill of complaint filed by the State of Kansas in this case 
 seeks to establish a doctrine which would prevent all Coloradoans 
 and also all citizens of Kansas from diverting water from the Arkan- 
 sas river, that would not be to the advantage of myself and the citi- 
 zens of my county. (Objection.) 
 
 1922 Q. I read from the amended bill of complaint filed by the 
 complainant in this case : 
 
 “By reason of the prior settlement, occupation, and title of the 
 inhabitants of the State of Kansas upon and to the lands situated in 
 the valley of said river, including those upon the banks of said river, 
 the State of Kansas and the owners of land in said valley did ac- 
 quire and now have the right to the uninterrupted and unimpeded 
 flow of all of the waters of said river into and across the State of 
 Kansas.” 
 
 I ask you if it would be to the advantage of yourself and the citi- 
 zens of your county to have the waters of the Arkansas river flow 
 into and through the State of Kansas as against the right to take 
 those waters out for irrigation. (Objection.) 
 
 A. No, sir, I don’t think it would be to our advantage to let the 
 waters pass by us. 
 
§90 
 
 'Ihe s^ate oE Kansas VS. 
 
 Recross-examination. 
 
 By Mr. Campbell : 
 
 I mean by renting water that we pay so much a year for the 
 water. You might say we purchase it. We call it renting 
 
 1923 it. We make leases or contracts for it. We pay so much a 
 year for so much an acre. In other words, we contract with 
 
 the owners of the ditch to furnish us a certain amount of water for 
 the current year, and that is what I mean by renting the water. 
 
 Redirect examination. 
 
 By Mr. Smith : 
 
 I have been in Colorado two or three times and have observed ir- 
 rigation there during the winter seasons. I think the last time I 
 was there was about eight or nine years ago. I know they were at 
 that time using a great deal of water for irrigation from the Arkan- 
 sas river in the winter. When I was there, at that time it was in 
 the last of January. It was a warm spell of weather and the 
 
 1924 ditches were all running full of water all the way up. 
 
 For alfalfa and fruit both, and in fact for all crops, a thor- 
 ough soaking of the ground in the winter season is the most im- 
 portant irrigation you can give it. Winter irrigation is now, with 
 me, I know, regarded as a profitable thing when you can get the 
 water. 
 
 I don’t know that the June rises are larger now than they were 
 formerly. I don’t think I ever saw the river run an}' fuller than it 
 did this spring, but it didn’t last long. Last year it was just as high. 
 I think along in the ’90’s we had those June rises come the same 
 way. There don’t seem to be any decrease in the rise of the water 
 in the river in any of that period of time. Well, I don’t know but 
 what there has been an increase. I don’t think I ever saw the river 
 any higher than it has been at my place in the last three or four 
 years along about the first of June. Taking the years 1889 
 
 1925 to 1890 and down to 1892 and 1893,1 couldn’t say positively, 
 but I would say that I don’t think that the June rise has 
 
 been any less any way than it had been in the years previous to 
 that. If there was a certain amount of snow fall in the mountains 
 and if that snow melts very quickly and it all runs off at once, that 
 would tend to create a greater rise in June than if it melted gradu- 
 ally. If the cutting off of the timber in the mountains has affected 
 the melting of the snows and the consequent rise of the river, the 
 effect of that would be to gradually increase the June rise. I don’t 
 want to be understood as saying that the deforesting of the mount- 
 ain slopes along the Arkansas river was the sole cause of the 
 decrease in the flow of the river. I think that the taking 
 of water from the Arkansas river by what is known as highline 
 canals and spreading it out on lands not riparian, that are uplands 
 and miles away from the river, has had an effect to decrease the 
 
I'MR STATE OE COLORADO EL aL 
 
 m 
 
 flow of the river. The water is carried away from the river and out 
 of the valley upon the high lands and there is no question in my 
 mind but what that water is lost to the flow of the river. I think it 
 has a great effect there on the flow of the river. The water is 
 
 1926 carried too far out. (Objection.) I have observed the irrigation 
 and the canals in Colorado, and I think to a certain extent the 
 
 building of large canals there has had something to do with the de- 
 crease in the flow of the river here. (Objection.) 
 
 Cross-examination. 
 
 By Mr. Dawson : 
 
 I don’t think there is any ditch on the river anywhere in Colo- 
 rado that carries the water out of the water shed of the Ar- 
 
 1927 kansas river. The drainage from all the lands that are 
 irrigated within Colorado that 1 know of is certainly natur- 
 ally back to the river. 
 
 Recross-exam i nation . 
 
 By Mr. Campbell : 
 
 I have never noticed any return waters here in Kansas. That 
 water goes into the underflow and comes out in the river, of course. 
 I have never noticed any water coming out into the river from the 
 ditches after the water has performed its functions of irrigating the 
 land. There are no ditches that I know of that come out into the 
 river except our own, and that one runs into the river. 
 
 Redirect examination. 
 
 By Mr. Smith : 
 
 1928 Very little of the water that is taken out onto the upland 
 by an irrigating ditch, five or ten miles away from the river, 
 
 and spread upon cultivated land where it is thirty or forty or one 
 hundred feet down to the sheet water would return to the river. It 
 is a well established fact that four-fifths of the water of that region 
 goes to the upper atmosphere anyway. It goes on the surface. 
 Certainly the farther you get away from the river with your ditch 
 and irrigating, the less can possibly return to the river. It is most 
 assuredly according to my belief that the water that is spread out on 
 the upland only a small percentage of it would return to the river. 
 
 Recross-examination. 
 
 By Mr. Dawson : 
 
 I said that when water is spread on the land four-fifths of it goes 
 into the air. That goes up there and comes down in rain some- 
 where. So that if you spread it over the land for irrigation and 
 four-fifths of it goes up into the air it would most assuredly increase 
 the rainfall. It would improve or increase the conditions for it. 
 
m 
 
 TT'tltC STATE oE itAttsAs VS. 
 
 Redirect examination. 
 
 By Mr. Smith : 
 
 1929 I have a complete record of the prevailing winds in this 
 country in the summer season. They are generally from the 
 
 south and west, mostly from the southeast this summer. Our rains 
 all come from the west, but the direction of the rains I couldn’t say. 
 It depends on what direction the wind may be in when it is raining. 
 I don’t mean that the clouds particularly come from the west; they 
 are formed right over our I leads here. The rain is in the atmos- 
 phere. It is there now. There are no clouds there. Whenever it 
 becomes condensed enough or forms clouds it comes down. For th6 
 last two or three years we have usually gotten our rains here in the 
 summer when the winds were from a southern direction. (Objec- 
 tion.) 
 
 1930 E. N. Keep, Garden City, Kansas. 
 
 Direct examination. 
 
 By Mr. Ashbaugh : 
 
 I have lived in Garden City, Kansas, for about twenty years. I 
 am publishing a newspaper and doing a little of real estate business. 
 I am acquainted with the Arkansas river and should think it was 
 about fourteen hundred feet wide at Garden City. Examining 
 Complainant’s Exhibit A-45, I recognize it as a photograph of the 
 river at the bridge here south of town. I have understood from 
 Mrs. Stroch, the photographer, that that picture was taken in 
 
 1931 June, or it might have been in May, of 1904. That picture 
 shows the condition of the river as it was during the spring 
 
 of 1905. I crossed it several times. I believe that picture is a cor- 
 rect photographic view of the river as it appeared during the months 
 of March, April and a part of May, 1904. It shows no water flow- 
 ing in the river at all. 
 
 Examining Complainant’s Exhibit A-50, 1 recognize it as another 
 view of the river, taken at a later date, showing the bridge across 
 the river, taken in July, 1904. This is water that is shown in the 
 foreground of the picture. The river was at the time that picture 
 was taken at a good stage of water. 
 
 (Complainant’s Exhibit A-50 offered in evidence.) 
 
 1932 I was acquainted with a lake or pond near the fair grounds 
 between Garden City and the river. I first became acquainted 
 
 with it about 1883 or 1884. In the broadest place I suppose it was 
 probably not over one hundred feet across and probably three hun- 
 dred or three hundred and fifty feet long. I have seen young boys 
 in there swimming, and I judge it was up to their arms frequently. 
 It was a swimming hole. As to where this pond got its supply, my 
 
THE STATIC OF COLORADO ET AL. 
 
 593 
 
 knowledge would only be supposition, that it was fed from 
 
 1933 the underflow or from a source higher. I say it was fed from 
 the underflow because it was so near on a level with the 
 
 river. It had no perceptible inlet. There was no surface water 
 flowing in it oniy as rains might occasionally cause it to flow in. 
 It was not connected with the river so as to get any supply from the 
 visible flow of the river. There was an outlet farther down east 
 that flowed across the street where there is a bridge. It flows into 
 the river. The water in that lake or pond has largely disappeared. 
 There is some little water there lately, I think, this year. I don’t 
 think there was any in there last year. I didn’t see any. And my 
 recollection is that for several years before there liad been but very 
 little water in the pond. 
 
 Cross-examination. 
 
 By Mr. Beaman : 
 
 1934 I wouldn’t call this pond a bayou exactly, because it seems 
 to have a flow down to the river, and when the river is flowing 
 
 it has its outlet into the river. Yes, there has been some little water 
 in the river, and sometimes considerable, ever since the first rise in 
 June, and there is quite considerable water in that pond now. It 
 is less than a quarter of a mile from the river, and I think it is a 
 fact that sometimes the water level in that pond now is consider- 
 ably higher than the water in the river. As to whether the proba- 
 bility is that the underground supply to that pond does not come 
 all from the river, I don’t know as my opinion is of any value. My 
 opinion is that there is a cut-off or stratum of soil impervious to water 
 higher up that shuts the water off to some extent from the river 
 and causes that. There still may be a source of supply to 
 
 1935 that pond from a different direction than from the river alto- 
 gether. The water in the river this year was in July very 
 
 high, and as high as it has ever been in July, and higher than in 
 some years. Nevertheless that pond is not nearly as full as it used 
 to be. 1 haven’t been down to see the river to-day and I don’t know 
 whether there is any water in it. 
 
 1936 C. A. Loucks, Garden City, Kansas. 
 
 Direct examination. 
 
 By Mr. Ashbaugh : 
 
 I live at Lakin, Kearney county, Kansas. I have lived there since 
 1878 or 1879 continuously. I am in the real estate and abstract 
 business. I have been acquainted with the Arkansas river and the 
 Arkansas valley in my county during the time I have lived. there. 
 I live about half a mile from the river. The valley through 
 
 1937 Kearney county is on an average about three and a half miles 
 wide. At Lakin it is about seven miles wide. The valley 
 
 38 — 7 
 
594 
 
 THE STATE OF KANSAS VS. 
 
 consists of first and second bottom lands. The first bottom 
 lands vary in width from a few feet to possibly a mile in some 
 places. The balance of the valley is second bottom. The second 
 bottom is on an average ten or twelve feet above the first bottom, 
 and the second bottoms are fourteen to twenty feet above the surface 
 of the water as it flows during the dry season of the year, and 
 
 1938 the first bottoms are six or eight feet above the river. We 
 strike water anywhere in the valley through Kearney county 
 
 by digging for it. On an average of about six feet on the first 
 bottom and from sixteen to twenty feet on the second bottom. 
 During the first ten or fifteen years that I knew the river the aver- 
 age flow of the river during the dry season of the year, not taking 
 into consideration the flood periods, would be difficult to state, 
 
 1939 but in my judgment there was a foot of water in depth and 
 about three hundred yards wide. (Objection.) I should 
 
 think that on an average the l iver through Kearney county is about 
 the same width as through Finney county at the bridge crossing 
 the river south of Garden City. A portion of the time during the 
 first ten or fifteen years the river would flow from bank to bank. 
 (Objection.) During the first fifteen years, from 1878 or 1879 down 
 to 1885 or 1887, there was such a thing known as the June rise, 
 which would last several days and would go out gradually I think. 
 During the last ten years prior to 1904 I don’t know what the aver- 
 age flow of the river would be. As to the average flow dur- 
 
 1940 ing the last ten years as compared with the flow during the 
 same seasons during the first years, there is but little water 
 
 now as compared with the other period. (Objection.) I don’t know 
 how much of a flow there was from August, 1903, to May, 1904, but 
 there was but very little. 
 
 Examining Exhibit A-45, that picture is a fair view of the river 
 through Kearney county during the last four or five or six months 
 of 1903 and the first few months of 1904. (Objection.) I 
 
 1941 take it that it shows no water flowing in the river at all. 
 The river has materially decreased in its flow during the dry 
 
 seasons of the years as compared with the earlier years. (Objection.) 
 Tbe first time I ever knew it to be entirely dry or without running 
 water was in the year 1887. Since 1887 it has been entirely dry 
 numerous times. That is practically true in the fall of every year. 
 
 There are three ditches in Kearney county used for irrigation — 
 the Western, the Great Eastern and the Amazon. The Western 
 ditch was constructed about 1880. After the parties began working 
 upon it they continued their work uninterruptedly until it was 
 completed and they commenced to put water in it and use it. 
 
 1942 They put the water in it immediately after they got it started. 
 That ditch has been used ever since and there has been water 
 
 in it at all times since when the}' were able to secure the water from 
 the river. There have been some times since that when they were 
 not able to secure water for the ditch. During the first years after 
 they turned the water in there was plenty of water in the river and 
 
THE STATE OF COLORADO ET AL. 
 
 595 
 
 they got plenty of water in the ditch then. During the last five or 
 eight years, excluding the year 190 4, there has been but very little 
 water in the river, and consequently very little water in the ditch, 
 only at certain times. The Great Eastern was constructed about tbe 
 same time as the Western, about 1880, is my judgment. The 
 
 1943 ditch was pushed to completion from the time they started 
 it, and the work was not interrupted or abandoned at any 
 
 time to my knowledge until they turned the water in. I would 
 have known it, I think, if it had been. They got water the same as 
 they did in the other one, for a portion of the time. They had 
 water for the ditch during the first years. During the last five or 
 ten years prior to 1904 they have not had the water, but with this 
 Great Eastern I think there was a portion of the time that they didn’t 
 try to operate it. I think the diminution of the water had an effect 
 on their ceasing to operate the ditch. I don’t know exactly when 
 the Amazon ditch was constructed, but I would judge some four or 
 five years after the Western and the Great Eastern were con- 
 
 1944 structed. After they began constructing the Amazon ditch 
 there were several miles of it finished without interruption 
 
 (objection) and then they began operating it and turned water in it. 
 The head-gate of the Amazon ditch is about eleven or twelve miles 
 west of Lakin. It then passes about one mile north of L ikin, idle 
 diminution of the water in the river has effected the amount of water 
 that was gotten in the Amazon ditch. 
 
 1945 Cross-examination. 
 
 Bv Mr. Hayt : 
 
 The Western ditch runs about three and a half miles from Lakin. 
 The head-gate of that ditch is about eight or nine miles above Lakin. 
 The Great Eastern runs about half a mile north of Lakin and the 
 head-gate of the Great Eastern is about eight or nine miles above 
 Lakin, and the Amazon bead-gate is about eleven or twelve miles 
 above Lakin. I first saw the Amazon ditch when they were building 
 it. I don’t remember definitely to what stage the building had pro- 
 gressed when I first saw it. I don’t remember whether it was con- 
 structed three or four or five or six miles when I first saw it. I 
 saw it most all the time, every few days, during the first two 
 or three years after the construction was commenced. The ditch 
 was close to where I lived a portion of the time. I was 
 
 1946 living in Hartland a portion of the time, and it goes 
 right through the edge of tbe town. One of the others also 
 
 goes through Hartland — the one on the south side of the river. 
 Yes, as to some of them 1 can testify that I noticed the ditches dur- 
 ing the first year or two, during the time they were constructed. 
 Yes, I can testify that there was a portion of the Amazon con- 
 structed uninterruptedly. Yes, I will testify that a portion of the 
 Amazon was constructed uninterruptedly. I do not testify of my 
 own personal knowledge that the work was continued uninterrupt- 
 
596 
 
 THE STATE OF KANSAS VS. 
 
 edly as to all of the ditch, bat only as to a portion of it. There is a 
 portion of it I have never seen, and as to that portion I don’t know 
 when it was completed except from what I have heard. 
 
 1947 I think the Arkansas river at Lakin may have had what 
 might be termed an average flow. What I would call an 
 
 average flow of the river would be the average amount of water that 
 would pass down through a given time. At the present time it is a 
 river of sudden rises and violent changes so far as the water is con- 
 cerned, and to a certain degree it has always bt-en so. Yes, sir, as 
 early as 1887 there were dry times, and it was full of water at other 
 times. I think it is impossible to determine an accurate average as 
 to the flow. As to the June floods, I think they would last 
 
 1948 longer in the earlier days than now. Mv recollection is 
 that in the early days the river would be high during the 
 
 greater portion of the month of June. It is not my recollection that 
 they always came in June, but they generally continued for some 
 time. As to a series of rises in the river, I would say it would be 
 up for three or four days, and down, and then there would be an 
 increase, periiaps. I was not upon the river in 1874. 
 
 I don’t know when the photograph identified as Exhibit A-45 was 
 taken. I think I recognize the place it represents. I don’t know 
 whether it represents the true condition, independently, of the 
 photograph itself. It was taken at Garden City, Kansas, below 
 the head of the three ditches above described. The Western ditch 
 at its head is about sixteen or twenty feet wide at the bottom of 
 the ditch. That is my best judgment. And it is approxi- 
 
 1949 mutely from four to six feet wider at the top. When the 
 ditch is filled it carries about three or four feet of water 
 
 in depth. The Great Eastern ditch is approximately about eighteen 
 feet at the bottom and about three or four feet wider at the top and 
 carries water in depth about three feet. The Amazon is about eight 
 or ten feet at the bottom and at the top is nearly twice as wide, and 
 the depth of water in the Amazon is about three or four feet. These 
 ditches, I think, were all constructed so as to take water from 
 the river at its lowest flow. Yes, sir, I believe that these ditches 
 were constructed so as to take all of the water from the river if there 
 was very little water in the river ; that is, if there was only enough 
 water in the river to supply these ditches they were so constructed 
 as to take it all. Yes, there were some dams constructed in 
 
 1950 the river to throw the water into the ditches. The Amazon 
 a portion of the time had a wing, a temporary dam throwed 
 
 in. The Great Eastern and the Western ditches both have had 
 dams. I don’t know whether they have dams now or not. I be- 
 lieve the Western has a dam at the present time. I don’t know 
 whether it extends across the river or not, I think the others also 
 have a dam at th’e present time. Yes, sir, it is the aim and purpose 
 to fill these ditches with water whenever the river will permit. 
 They are so constructed that whatever there is in the river may be 
 taken out up to the capacity of each ditch. 
 
THU STATE OF COLORADO ET AL. 
 
 597 
 
 1951 James Craig, Garden City, Kansas. 
 
 Direct examination. 
 
 By Mr. Ashbaugh: 
 
 I live about three and a half miles north of Garden City. I am 
 fifty-three years old, and have lived in Finney county since March, 
 1879, at which time I located on the present homestead where 
 I live. My business has been farming, and I have always owned 
 the farm, and have sometimes farmed it. During the first ten 
 years after I came here I had charge of some ditches in this 
 
 1952 neighborhood. I am a stockholder in the Kansas ditch and 
 helped to construct that. I know of ditches in Kearney and 
 
 Finney counties, but I don’t know as to Hamilton county. The first 
 ditch that was constructed here was the Garden City ditch. That 
 is the present ditch in the valley here. The first work was begun 
 on that in the fall or the winter of 1879-1880. (Objection.) That 
 ditch was the one that was chartered under the name of The 
 Garden City Irrigating, Water Power and Manufacturing Company, 
 and the charter of which is filed as Complainant’s Exhibit A-47. 
 In the first place, this ditch was started for a mill race and was 
 not intended for irrigation purposes. Afterwards some farmers 
 over west came in here and saw tiie chance to irrigate from this little 
 canal that had been constructed and asked for water to irrigate with. 
 In the fall of 1879 they simply took their scrapers and went 
 
 1953 up to the river. There was quite an island extending up the 
 river three quarters of a mile or more and they started in 
 
 there above the level of the river bed and used this island as a wing 
 dam. They put a dam across between the island and the main land 
 and constructed the ditch to west of Garden City here a short dis- 
 tance and throwed the water out on the prairie. This work was 
 pushed uninterruptedly and continuously. Mr. Armentrout 
 
 1954 had charge of the work at that time. I just came in through 
 the summer and watched the progress of the work and saw 
 
 what they were doing. It was something new to me. They had 
 the water running out on the prairie in this ditch early in the spring 
 of 1880. That ditch did not exceed three and a half miles to where 
 they turned it out in the prairie here at that time. It was after- 
 wards extended from ten to twelve miles or more, with laterals 
 and all. It runs into the river east of Garden City. There were 
 ten or twelve miles of it constructed, so that water was turned into 
 it. I think there has been no year but what water has been used 
 from it, to the best of my recollection. There was considerable irri- 
 gation done from this ditch up to 1887 in the end of the boom days 
 here. There was considerably more done early in the boom 
 
 1955 than afterwards, and up to the present time in fact. There 
 is not as much irrigating done from this ditch now as there 
 
598 
 
 THE STATE OF KANSAS VS. 
 
 know as to that. The ditch has simply been filled up and it has 
 been in the hands of a receiver and the mortgage companies have 
 had charge of it, and it has just simply gone down and down — the 
 the property has gone down. That is the case with all of the ditches 
 in here. During the last ten years prior to 1904 there has been suffi- 
 cient water to supply these ditches if they had been in condition to 
 take it along in May until the middle of August. There is nearly 
 every summer, I think. There has been plenty of water for two or 
 three months. During the dry season of the year, from August until 
 the last part of the year, there has not been a sufficient amount 
 during tbe last ten years. During the years from the time the water 
 was turned in until about 1890, we had plenty of water. We would 
 always have water here in the spring of the year to start our spring 
 crops — that is, our grain. The fact is I have quit raising summer 
 grain on account of that. We can’t get water enough to start it in 
 the spring. In the years from 1880 to 1890 we could get water 
 enough for our irrigation purposes. There were times when it was 
 low. There would be always plenty to make crops, however. 
 
 1956 But during the last ten years the water has been practically 
 out of the river in the dry time of the year, and if the water 
 
 is out of the river there is none in the ditches. 
 
 The next ditch constructed was known as the old Kansas ditch. 
 That covers my own farm. The charter of this ditch is Complain- 
 ant’s Exhibit A-46. We took up the work on that system in the 
 fall of 1880 and pushed the work until we got water up on the 
 fields or up on my territory. That was in the summer of 1881 ; we 
 got the first water up to my place along in July, 1881, about fifteen 
 miles from the head-gate. The head-gate of the Kansas ditch is 
 just on the edge of Kearney county, right on the west li&e of Finney 
 county. The head-gate of the Garden City ditch has been moved 
 several times. The old original head-gates were on section 
 
 1957 16, about four miles west of Garden Citv. The work on the 
 Kansas ditch was pushed uninterruptedly until the water 
 
 was turned in in the winter of 1881. I don’t know but we may 
 have gotten some late in the fall. We put the little head-gate in a 
 short time after we got the work completed so that we could run it 
 down and keep the water going, hut there was no water used until 
 1881. The water was continuously used in die Kansas ditch fora 
 series of years, and we have always had water up there. The 
 diminution of the water in? the river has certainly affected the 
 amount of water that could be used in this ditch during the last 
 ten \ T ears. During the last ten years prior to 1901 there have been 
 periods of from five to nine months when we haven’t had the water. 
 During the years from 1881 when the water was turned in until 
 1890 we had water; that is, there were times when it might 
 
 1958 have been short a little, but we always had water in the irri- 
 gation system. The Kansas ditch for the first ten years was 
 
 about filteen miles long. The cost of constructing the Garden City 
 ditch was perhaps ten thousand dollars, and the cost of constructing 
 
THE STATE OF COLORADO ET A L. 
 
 599 
 
 the Kansas ditch was probably fifteen to twenty thousand dollars. 
 The name of the Kansas ditch has been changed since that time 
 and it is now known as the Finney County Farmers Irrigation As- 
 sociation. 
 
 The next ditch constructed was the Great Eastern, and Exhibit 
 A-48 is a copy of the charter of it. The head-gate is located 
 
 1959 right at the little town of Hartland in Kearney county. The 
 survey was started in July, 1881. I carried the rod on that, 
 
 and know, and the work was started in November of that year. 
 There was a period in 1883 during the summer that they had some 
 difficulty with the railroad company and they took their teams and 
 marched out and sent us down to the cattle ranch for a short time, 
 probably five months. I had charge of it until 1886. We con- 
 tinued to push the work right along continuously. The water was 
 turned into that ditch in the fall of 1882 and ran down about fifteen 
 miles. This ditch has been extended, but they never complete these 
 ditches. During this five months they let the farmers run the ditch 
 and a few of them alongclose to Lakin let their head-gates sink into 
 the river and when I got back from the cattle ranch they had not 
 been trying for some time to take any water at all. The head-gates 
 were sunk. They have extended this ditch, but they never com- 
 plete these ditches. They are always extending and fixing 
 
 1960 them. But they ran water right in this country. The first 
 contracts were made in 1884 and the water was continued up 
 
 to 1886. When I quit them we had continued it right along, and it 
 has been operated ever since to my knowledge. During the first ten 
 years after that ditch was operated at most times they had sufficient 
 water for the purposes of irrigation. During the last ten years I 
 have not been up in that country, since I lived there in 1886. The 
 main ditch is probably thirty-five miles long. 
 
 The next ditch that was constructed was the South Side ditch. I 
 don’t really know what the name of that ditch is now. It is the 
 ditch that takes water right across from the head-gate of the Great 
 Eastern, on the south side of the river, at H irtland. Tne first took 
 out a small ditch, the Minnehaha ditch. They came out a short 
 distance this side of Lakin, but afterwards Mr. Longstreth and others 
 came in and they went farther up, as far as the head-gate of the 
 Great Eastern. I think they call it the Western. That ditch 
 
 1961 comes down from the narrows at Hartland to Sherlock. We 
 knew the Minnehaha ditch as the South Side ditch, and they 
 
 were building it when we were working on t he Great E istern. They 
 put in their gates about the same time and took water out about the 
 same time that we did. They worked on it through the summer 
 of 1880 and used water in it in the summer of 1881. I don’t think 
 the} 7 did any irrigation in that ditch, to any extent, through the 
 summer of 1881, but they had water in there. I frequently went 
 across there to see what they were doing. I was working on the 
 north side of the river. They pushed their work uninterruptedly 
 in the construction of that ditch. They had a short ditch and a 
 
600 
 
 THE STATE OF KANSAS VS. 
 
 good fall to it and didn’t have much to do to construct the 
 
 1962 ditch. That ditch was about fifteen miles long. They had 
 plenty of water in it for irrigation purposes for the first num- 
 ber of years, but they have not had water in it during the last ten 
 years prior to 1904 to my knowledge. I couldn’t say. I have not 
 been up in that country. But I suppose they wouldn’t have be- 
 cause there was no water in the river. The Western ditch would 
 cost I should say twenty thousand dollars. 
 
 The next ditch constructed was the Amazon, whose charter was 
 filed in 1887 and is Complainant’s Exhibit A-49. My recollection 
 is that they started to work on that along in the fall of 1887. The 
 work was continued uninterruptedly until it was completed. They 
 pushed that rapidly when they started in at the work. I couldn’t posi- 
 tively testify when they got water into that ditch. They may have 
 got something in there in 1888 for a short 'distance. The water has 
 been used in that ditch continuously ever since when they could get 
 it. The Amazon ditch is about a hundred miles long or more 
 
 1963 and goes east to Ingalls and out to Pawnee. It was intended 
 to cover the whole country here. I don’t know what the cost 
 
 of that ditch was, but I should judge from the work they did it cost 
 one hundred and fifty thousand dollars. The head-gate of the 
 Amazon is at a place called Slate cut, near Kendall, in Kearney 
 county, five miles above Hartland. There have not been any ditches 
 constructed since that time that I know of. 
 
 Cross-examination. 
 
 B}' Mr. Dawson : 
 
 I was interested in the construction of two of these ditches — the 
 Kansas and Great Eastern. I came here from Illinois and was not 
 familiar with the Arkansas river prior to 1879 when I came 
 
 1964 here. I knew nothing of the Arkansas river before that time. 
 Yes, sir, I discovered very shortly after I came here that to 
 
 make farming a success in this locality it would require the applica- 
 tion of water to the land by irrigation, and when we discovered that 
 we set about trying to get water on the land, and in doing that I 
 aided in the construction of at least two ditches, and we have been 
 irrigating more or less upon our land from the time of the comple- 
 tion of the first ditch to the present time, and we are still irrigating 
 some. No, I think it is not possible in this part of Kansas which 
 lies between the Colorado State line and Dodge City to rely upon 
 crops year after year without irrigation. I will have to approximate 
 how many acres of land there are in Finney county that lie under 
 ditch suitable for irrigation. Roughly speaking, probably fifty thou- 
 sand acres. That would not include all that is so situated under 
 the ditches that it could be irrigated if we had water for it. 
 
 1965 There is now probably a hundred thousand acres of land in 
 Finney county that is so situated as to be capable of irriga- 
 tion from the systems which have been constructed it they were in 
 
THE STATIC OF COLORADO ET AL. 
 
 601 
 
 repair and we had water to fill them. Irrigated lands where the 
 water right is ample in Finney county are worth on an average 
 thirty-five dollars an acre. If they were absolutely deprived of the 
 right to water for irrigation these lands would perhaps be worth 
 two dollars are a half per acre. That would be an outside 
 figure. The amount of land lying under ditch in Kearney county is 
 probabty twenty thousand acres. There would be more than that 
 amount of land which actually lies under ditch systems in Kearney 
 county, taking in to consideration the Amazon, the Great Eastern and 
 the Western. The land lying under all the ditch systems in Kearney 
 county that are suitable for irrigation, if the systems were in 
 proper repair and there was plenty of water for them to irrigate 
 there would probably be thirty thousand acres. The Amazon 
 
 1966 I think extends north further than probably I have knowl- 
 edge of it, and it may cover a greater territory than I think 
 
 it does. I am not familiar with the ditch systems nor the lands 
 lying under them in counties other than Finney and Kearney in 
 Kansas. I think the relative value of lands in Kearne}' county 
 when allowed water for irrigation and when deprived of it would be 
 about the same as values fixed for lands in like condition in Finney 
 county. Yes, there is a considerable area of land suitable for agri- 
 cultural purposes in these two counties which could be brought 
 under irrigation if we had the water supply for them, and that are 
 not already under irrigation. 
 
 I am familiar with the flood conditions which exist in the Ar- 
 kansas river from year to year. Yes, it is true that there are large 
 quantities of water which run to waste eacli year in the Arkansas 
 river. If those waters were stored so as to make them accessible to 
 ditches in Kansas many thousands of acres of additional land would 
 be increased in value in the proportion I have heretofore 
 
 1967 named by placing water upon the land. No, I couldn’t give 
 any estimate as to how many acres could be reclaimed in that 
 
 way if the water could be secured. Yes, it is true that the amount 
 that could be reached and made valuable in that way is in in excess 
 of the amount that has already been thus reclaimed by irrigation. 
 
 So far as my knowledge goes there is only one reservoir site or 
 suitable place for storing the flood waters of the Arkansas river be- 
 tween this point and the Colorado State line. It is at Hartland ; 
 that is, right at the town of Hartland, where the Great Eastern and 
 the Western ditches take their water. There the hills are two hun- 
 dred feet high, I should judge, on each side of the river, and the 
 valley is very narrow. The valley widens right west of that point. 
 I don’t know how far it would back the river up in the valley. It 
 would make a large reservoir. I have diiveti up and down 
 
 1968 the Arkansas river on both sides in Colorado. I should say 
 emphatically that if there are suitable reservoir sites in Colo- 
 rado it would be of advantage to western Kansas if the flood waters 
 of the Arkansas river falling at the head waters of the stream and 
 its tributaries could be stored, if these flood waters were conducted 
 
602 
 
 THIS STATIC OF KANSAS VS. 
 
 down the channel so as to reach the ditches constructed in Kansas. 
 Yes, sir, if the Federal Government in the expenditure of the moneys 
 set aside for the reclamation of the arid region should construct large 
 reservoirs on the Arkansas river in Colorado and fairly distribute 
 that water between the people of Colorado and of Kansas, it is my 
 judgment that it would be of advantage to both States. I should say 
 that the welfare of the majority of western Kansas, at least that part 
 west of Kinsley, depends largely upon the ability of the citizens of 
 that part of the State to secure water for the irrigation of their 
 lands. 
 
 Yes, as to the comparative value of lauds in this vicinity at the 
 present time with what it has been in pa?’t years, excluding boom 
 prices, it is higher than ever before. 
 
 Yes, sir, I raise alfalfa. I am on what they call the upland, thirty 
 feet to water, and irrigate that on the surface. Yes, 1 have had 
 some experience in growing alfalfa where it relied on water in the 
 soil rather than what you put on the soil. As to the best depth to 
 have water under the soil for alfalfa, that depends upon what you 
 want to raise. If you want to raise seed you want the water a con- 
 siderable distance below; if you want hay, two or three feet beneath 
 the surface would be all right. If you want seed, it will go down 
 eight or ten feet after it has been set. The seed ha? been the most 
 profitable crop here. 
 
 I have taken considerable interest in this matter of irrigation. 
 Yes, sir, I have heard individual views upon the question of this 
 suit and its probable effect discussed among the people of this county. 
 I have talked of it at different times. 
 
 1970 Q. If it be true that the amended bill in this case sets up 
 that it is the desire of the complainant, The State of Kansas, 
 
 to have the water in the Arkansas river run into and across the 
 State of Kansas without diverting it from the bed of the stream, and 
 the result of this suit should be to prohibit both the people of Colo- 
 rado and western Kansas from taking water from the stream, would 
 that be to the advantage or disadvantage of the people in Kansas 
 living west of Kinsley ? 
 
 A. It would be a disadvantage to them. 
 
 Q. From what you have heard in this county do you believe that 
 the citizens of the county are at all in sympathy with anv move- 
 ment which would look to the abrogation of the doctrine of 
 
 1971 irrigation? I mean by abrogating or doing away with or 
 killing the doctrine of irrigation. (Objection.) 
 
 A. They certainly are not. They are certainly not in favor of 
 doing away with irrigation. That is what I mean. 
 
 I have not personal knowledge, but I have my own idea or theory 
 as to what is the cause of the falling off in the flow of the river of 
 late years. My notion is, and I believe, that there is more water 
 taken out in Colorado than heretofore and it has lowered the stream. 
 That is my honest opinion. 
 
 Yes, I know that the timber at the head waters of the Arkansas 
 
THE STATE OF COLORADO ET AL. 
 
 603 
 
 river and its tributaries has been largely destroyed by cutting and 
 burning, and of course it will let the snow melt earlier. Yes, this 
 would cause a lessening of the flow in the river during the latter 
 part of the summer of late years, but not in the early part of the 
 year I would think. Yes, it is true that the cutting and burning 
 off of the timber at the head waters of the Arkansas river and its 
 tributaries would result in the snow melting more rapidly. Yes, 
 sir, the water will come down more quickly, the snow not 
 
 1972 lasting so long. Yes, it is true that the natural result follow- 
 ing that would be that there would be less water coming down 
 
 later in the season, but that has not been the case with us. Our 
 water is cut off earlier. If that were true we would have water 
 earlier in the season here. Yes, if the timber is cut off, whenever 
 the sun gets warm in the spring and reaches the snow it will go off 
 more rapidly than if the timber were there, and later in the season 
 the result is that there wouldn’t be as much water, because it would 
 all be gone. 
 
 You have asked me if I know of any other reasons besides the 
 cutting of the timber and the taking out of more water for irriga- 
 tion in Colorado which would account for the lessening of the flow 
 of the water in the river. As to that I would say that the rain and 
 snow fall would account in some part for it. As to whether or not 
 there has been less rain or snow fall in the late years, I would say 
 that there has not at this point. I don’t know how it has been in 
 the mountains of Colorado. Yes, sir, it is true that the drainage of 
 the Arkansas river in Colorado which lies in the high mountains 
 where snows fall to any considerable extent is a very small 
 
 1973 percentage of the river’s total drainage in that State. You 
 ask if it be true that the drainage of the Arkansas river in 
 
 Colorado which lies in the high mountains where the snow falls con- 
 stitutes about one-eighth of the river’s drainage in that State — 
 whether [ attribute any considerable amount of the flow of water in 
 the river to the snows, or mostly to the rains which fall on the other 
 seven-eighths of the drainage. I will say that I biame it more to 
 the rains that fall in the foot hills. Ye>, I know that there has been 
 a very largelv increased area of land put under cultivation along the 
 drainage of the Arkansas river in the last ten or twelve years. My 
 idea is that this rain that falls hangs along in the mountains and 
 in the foot hills about Trinidad and up in that country and not di- 
 rectly in the valley of the Arkansas river. 
 
 1974 Yes, sir, the soil would absorb the moisture, and when you 
 break or plough ground up the rain which falls on it fur- 
 nishes a much less percentage of run-off than when falling on the 
 native sod. It runs off more readily when it is not under cultiva- 
 tion. No, I don’t know whether or not it is true that in all this 
 western country that is open range both on the plains or in the 
 mountains the grass or vegetation has been trampled off or eaten off 
 by cattle so that it is much less than it formerly was when the 
 country was new. There is no difference in that, I think, in this 
 
604 
 
 THE STATE OF KANSAS VS. 
 
 country here. Yes, I know that up in the mountains there are sea- 
 sons when there is practically no grass at all, and it is true that when 
 you do away with the grass and vegetation that grows on the ground 
 that ground does not hold the winter snows and waters so well as 
 when it is covered with vegetation. It is probably true that in the 
 mountains it would run off more rapidly and does not run nearly 
 so long, but that is not true, of course, with us here. 
 
 As to the fact that these ditches of which I have spoken as having 
 had ample water for the first few years after they were constructed, 
 andithat later they had not been so well supplied with water, I should 
 think it is true as you state that it was not entirel} r due to 
 
 1975 the lack of water but in part due to the fact that they were 
 not kept in proper repair or looked after while they were in 
 
 the hands of a receiver. 
 
 Cross-examination. 
 
 By Mr. Campbell : 
 
 Yes, there are places on either side of the Arkansas river where 
 water may be impounded by taking it from the bed of the river and 
 conducting it to a particular place. I know what is meant by return 
 waters. Yes, I gave that matter some study. I couldn’t state 
 
 1976 the amount of return water that comes back to the stream 
 after the water is used for irrigation purposes. In my judg- 
 ment there is some. My idea is that the greater the amount you use 
 for irrigation purposes the greater the amount that will return. 
 Yes, sir, I think that if reservoirs were erected in Colorado or west- 
 ern Kansas to catch flood waters that now cannot be utilized for ir- 
 rigation purposes and the same could be used for irrigation during 
 the dry season, that that would increase the amount of return water 
 and benefit the river below all the way down. 
 
 Recross-e x a m i n a tion . 
 
 By Mr. Dawson : 
 
 Answering your question as to whether or not the spreading of 
 water over the lands in eastern Colorado for irrigation purposes has 
 had any effect on the climatic conditions in western Kansas or any 
 effect on the rainfall, I would say I have kept a record here for 
 eighteen years and I don’t see any difference. Sometimes it 
 
 1977 goes to the maximum and then down to the minimum. I 
 have seen no change in the last twenty-five years. 
 
 Yes, sir, I have a well over on my place where I live, and irri- 
 gate with it. Yes, I sank the well before I commenced irrigation. 
 I dug the well forty-two feet. Yes, after I commenced irrigating I 
 noticed a rise of water in the well to the extent of twelve feet. Yes, 
 the water came twelve feet nearer the surface three years afterwards; 
 that is, shortly after we started to irrigate in that neighborhood ; 
 and the water stands about the same to-day. Yes, I think that the 
 
THE STATE OF COLORADO ET AL. 
 
 605 
 
 sheet or ground water immediately under the surface in this valley 
 follows the contour of the surface of the country ; and in answer to 
 your question, I couldn’t testify from personal knowledge whether 
 or not if you go back from the river to the north until you get twenty- 
 five or thirty feet higher than the level of the water in the river and 
 dig until you strike the first water the water there would be higher 
 than the level of the water in the river. In Dunn’s well, about four 
 miles straight north from the river, the water was found some six- 
 teen feet higher than that in the river. I have heard people state 
 that the water was ten feet higher than it was in the valleys and 
 along the side of the hill here. Yes, I know enough of the lay of 
 the country and the depth of the water to know that when we go 
 back from the river it is some higher than the river. Yes, it is my 
 observation that the ground of sheet water under the surface follows 
 in general the rise and fall of the ground ; that is, when it comes 
 up the water flows back from the river through the sand. I have 
 had experience in that line. No, 1 don’t know and 1 don’t mean by 
 that that the water which you find back four miles from the river, 
 which is sixteen feet higher than the river, comes from the river at 
 all. Yes, when you get back from the river you find the water 
 underneath the surface of the ground practically following the con- 
 tour of the surface formation of the country, but I don’t mean to say 
 that this water has not come from the river. It may have been in 
 the strata around here and came through those strata. Of course I 
 don’t know where it came from. Yes, it is true it may have come 
 from a large amount of rainfall that goes into the ground and 
 strikes a stratum and follows that. 
 
 Redirect examination. 
 
 By Mr. Ashbaugh : 
 
 Q. Counsel asked you if some of those ditches were in the hands 
 of receivers. Going into the hands of receivers did not cause the 
 flow of the river to diminish, did it? 
 
 A. No, sir. 
 
 Q. Did the diminution of the flow, of the river cause some of 
 them to go into the hands of receivers, however? 
 
 A. Well, that had something to do with it, perhaps. 
 
 1981 E. B. Stotts, Garden City, Kansas. 
 
 Direct examination. 
 
 By Mr. Smith : 
 
 Hive in Garden City, Kansas. Iam thirty-two years old, and came 
 to Garden City in 1880 or 1881. My occupation at the present time 
 is farming. I have lived here continuously since I came here, with 
 the exception of about six years. We lived in the city of Garden 
 
606 
 
 THE STATE OF KANSAS VS. 
 
 City and had a farm east of the town about a mile and a half. I 
 have been acquainted with the flow of the Arkansas river 
 
 1982 from 1880 to 1890, and probably saw it every day or nearly 
 so. During the last few years I have lived in Topeka, for 
 
 seven years, and during the last two years I have lived on the river. 
 There has not been nearly as much water in the river for 
 the last few years as prior to that time. During the first years 
 that I knew it it was a stream that had water, as 1 remember 
 it, the year round. During the first years we lived here I never 
 saw it dry, not up until 1887 or 1888, along there. In the early 
 days in July, August and September, during the dry months or 
 growing season, it was a running stream. It is now generally 
 a river of sand bars and no water. During the latter part of 1903, 
 down to the spring of 1904, there has been a small flow ot water. 
 Part of the time there has been no water to speak of. There 
 
 1983 has been some water, however, this year. I should say the 
 river is from one hundred to two hundred feet narrower now 
 
 than it was when we came here first. The bed of the river is not 
 as deep now as h was then. It lias filled up, I should imagine, from 
 one to two feet, varying in different places. From 1879 or 1880 
 down to 1886 or 1887 there were ponds on both sides of the river 
 and there were lagoons or ponds extending both east and west for 
 fifteen or twenty miles on both sides. The time I didn’t put in in 
 school I put in in duck shooting and hunting. Those ponds are 
 not in existence now, excepting one small pond right south of here. 
 I attribute the drying up of these ponds to the fact that the water 
 level in this country has sunk, probably. There is not so 
 
 1984 much water flowing in the river as there was at that time. 
 In my judgment, those ponds were fed from the water flow- 
 ing down the river and from the underflow. When we first came 
 to Garden City we had a cellar dug under our house, a short time 
 afterwards. It was probably six or seven feet below the surface of 
 the ground. In the early days whenever the river was up the cellar 
 was generally filled with water. It frequently was filled with water, 
 and when the river would go down the water in the cellar would go 
 down with it. That cellar lias had no water in it in recent 
 years. I have skated on the river when I first came here, in both 
 directions, up and down the river, for a great many miles, frequently 
 
 as far east as Pierceville. There is not any skating on the 
 
 1985 river to my knowledge now; there is no ice to skate on. 
 
 I have been somewhat familiar with the supply of water in 
 the irrigating ditches from 1881 or 1882 at the time they were built, 
 down to the time I left here first. In the early ’80’s there was usu- 
 ally water in the ditches during the summer months. There was a 
 ditch provided from some of those ditches so that the surplus water 
 might be returned to the river. One was about fifty-five miles east 
 of here. In the early days there was considerable water returned 
 to the river as unused from the ditch. The flow was sufficient to 
 wash out the ditch there where it empties into the river to the depth 
 
THE STATE OF COLORADO ET AL. 
 
 607 
 
 of three or four feet and back probably fifty to a hundred feet. 
 There was much more water in tiie ditch than was needed for irri- 
 gation purposes. During the last few years, exclusive of this year, 
 there has been but little water in the ditches. As far as we are con- 
 cerned in the east end of town here, we have had no water to irrigate 
 with. 
 
 I am interested in alfalfa under one of these ditches. We 
 
 1986 have probably a hundred acres in alfalfa. We have not 
 been able to irrigate that alfalfa for the last thirteen or four- 
 teen years, but we did irrigate it before that. Because of our fail- 
 ure to get water to irrigate the alfalfa the crop has not been nearly 
 as heavy. It has not grown nearly as luxuriantly as during the 
 days when it was irrigated. The vegetation in the first bottom here 
 between the hills and the river was of a sage brush growth. Along 
 near the bed of the river there was a heavy growth of willows and 
 small timber and some larger trees and high grasses. In the early 
 days the grass was heavy and grew quite abundantly. Now the 
 grass is not nearly as heavy as it was and doesn’t grow to as great a 
 height as it did. I attribute this decrease in the growth of grass to 
 the lack of moisture and sub-irrigation or underflow beneath the 
 
 soil. 
 
 1987 I was in Colorado three or four years ago. I had occasion 
 about four years ago to inspect some land up there located 
 
 north and a little west of Lamar, three or four miles. There is an 
 irrigating ditch within a mile of the land. The land was practically 
 a bog, wet and very boggy. We had to turn around and go back; 
 we couldn’t cross the land. This was upland, away from the river, 
 prairie land, unbroken and uncuhivated. The cause of this was 
 said to have been seepage from the irrigating canal near there and 
 above it. The water had seeped from this canal down through 
 
 1988 into this land. I had no occasion to look at any other land 
 except this one piece, but the driver said that the land had 
 
 been damaged there by seepage from the ditches and that other 
 land in the county had been damaged in a similar manner. (Ob- 
 jection.) This water had evidently seeped from the ditch to this 
 land, as this land was lower than the ditch. There was no drain- 
 age to relieve the land of excess water. 
 
 It would be of value to our alfalfa if we had water for winter ir- 
 rigation. We are not able to get water in the ditches for that pur- 
 pose. The ditches are there as they were built. I believe 
 
 1989 one was plowed up this spring, but the ditches are still there. 
 Part of the land has failed to grown anything, hardly, this 
 
 last year. We have not been able to irrigate down there for the last 
 thirteen or fourteen years, because of the lack of water, in the river. 
 
 Cross-examination. 
 
 By Mr. Hayt : 
 
 A. Yes, it would be of great value to all this land under these 
 ditches if it had plenty of water for irrigation, and it would be 
 
608 
 
 THE STATE OF KANSAS VS. 
 
 a great benefit to the people of this county if there was sufficient 
 water to supply these ditches with water for irrigation. 
 
 1990 Q. If this suit, then, is for the purpose of keeping this water 
 in the river and having it run by, it would not meet with 
 
 your approval, would it? 
 
 A. I don’t know that the water running in the river here would 
 make any particular difference to the uplands, hut it would probably 
 raise the water level and enable the alfalfa to live in this bottom here 
 as it did in the past. 
 
 Q. Do you not think it would be an injury to this county gener- 
 ally if the water was kept in the river and the people were not per- 
 mitted to run it in their ditches and use it for the purposes of irri- 
 gation ? (Objection.) 
 
 A. No, sir, I think that the country would be better off if the 
 water were running in the river. If the water was not allowed to 
 be taken out the country would not be as well off as though it were 
 used in irrigation, but it would help the country — it would be in 
 better shape than it is today without any water in the river. 
 
 Q. My question is that if the people of this county were not 
 allowed to use water for irrigation, would not that be an injury to 
 the people of this county? 
 
 1991 A. Yes, sir, if water were running in the river. 
 
 Yes, I was about eight or nine years of age when I catne 
 here and I am just a little past 32 years old at this time. I think I 
 came here about 1880 or 1881. No, sir, I am not certain in which 
 year I came here. No, I probabty did not see much of those ditches 
 in the early ’80’s, but probably three or four or five years 
 
 1992 later, and from that time on. I am not sure, but I believe 
 two were in operation in 1885, and possibly three. I am not 
 
 familiar with the names of the different ditches. The first ditch I 
 remember of was located immediately south of the railroad track, 
 where the ditch is today. In those early years my observation of 
 those ditches was from the head of them to the place where they 
 emptied into the river below. I was familiar with the places where 
 the ditches were taken from the river and where they emptied into 
 the river, but not very familiar with them up and down the course 
 of the ditch. In speaking of the ditches in those early years, up to 
 1885 I was only familiar with the one that was taken out near Sher- 
 lock, six miles west of here. 
 
 Yes, I believe I said that the river was dry in 1887, but I don’t 
 know how long a time it was dry. No, I don’t know what month 
 in the year it was dry in 1887. I don’t remember. 
 
 No, there has not been any water in the cellar spoken of in this 
 year, 1904. Yes, the river has had a little water in it this 
 
 1993 year. It has not been up, however, as we usuall} 7 spoke of 
 the river when it was high. No, it has not had a great deal 
 
 of water in it this year ; it has had a little water in it. No, I don’t 
 know that there have been several floods in the river this year. No, 
 there have not been several floods in the river at this point this 
 
4HE STATE OF COLORADO ET AL. 6t)& 
 
 year. There has not been more water in the river this year than 
 the banks of the river would carry. The banks vary in height 
 above the bed of the river from two to five or six feet. The water 
 has been at its highest when it has been up so that it covered the 
 bed of the river pretty well up on the banks. No, I have not seen 
 it over the banks down here at the fair ground or in that vicinity. 
 No, sir, I don’t know that the river has been out of its banks 
 
 1994 near here this year. I wouldn’t state that it has not been. 
 It might have been out of the banks and I might not have 
 
 heard of it. No, sir, when the banks of the river were full this year 
 there was no water in that cellar I have spoken of. I don’t know the 
 reason why. Yes, there is a system of sewage in this city now. 
 Yes, these sewers are beneath the cellars in some places and in 
 others they are not. No, I haven’t spoken as an expert as to what 
 caused the water to come into the cellar in the earlier years, nor as 
 an expert in reference to sheet or underground water. 
 
 1995 Yes, 1 was in the State of Colorado about the year 1900 — 
 either four or five years ago. I should imagine that the land 
 
 of which I spoke as being boggy, near Lamar, Colorado, was two or 
 three miles north of the town of Lamar and a little west. I don’t 
 know what wagon road it is on. The land was owned by W. H. 
 Bradbury, a citizen of Topeka, Kansas. The larger portion 
 
 1996 of the tract of land, which I believe was about 160 acres, 
 was wet and bogg} r . There didn’t seem to be any grass grow- 
 ing on it. It seemed to be covered with dead grass, and in some 
 places there was grass. I should say the dead grass was killed by 
 the excess water and the seepage from the ditches. I don’t know 
 the name of the driver who gave me the information in reference 
 to the boggy land. I believe he was a land attorney there rather 
 than the owner of the stable. Possibly owner of the stable too. 
 
 Yes, I testified that this stream had narrowed up from one to two 
 hundred feet at all points along the river where I have had 
 
 1997 occasion to observe the stream, both east and west of Garden 
 City. No, the bridge has not been extended one or two hun- 
 dred feet, nor has it been narrowed up. The bridge now extends 
 out over the land for a hundred to two hundred feet. No, so far as 
 I know the bridge has not been extended on the side farthest from 
 Garden City, but it may have been possibly one span, if at all. The 
 approach to the bridge may have been rebuilt, and possibly a span 
 put in where it had been washed out by the current. Yes, I believe 
 there was an approach built on the side farthest from Garden City. 
 No, the bridge has not been extended south from eighty to one 
 
 hundred feet within the last ten or twelve years. It may have 
 
 1998 been extended some, but not that far. Yes, there is a bank 
 of about two to three feet in height, I should think, at the 
 
 beginning of the bridge on the south side of the river at this time. 
 Yes, it is true that the bridge practically commences right at the 
 river bank as it is at this time on the south side of the river. 
 
 39—7 
 
610 
 
 TftE STATE OF KANSAS VS. 
 
 2000 O. V. Folsom, Garden City, Kansas. 
 
 Direct examination. 
 
 By Mr. Ashbaugh : 
 
 I have lived in Garden City, Kansas, since 1888, and in Finney 
 county since 1882. I have been farming since living in Finney 
 county. In the season of 1883 I was farming about a mile and a 
 half west of Garden City; after that I moved onto my claim in 
 Sherlock township and farmed there for four or five years. The land 
 I was farming in 1883 was bottom land. I irrigated this 
 
 2001 land in 1883 from the Garden City ditch. After that I 
 moved onto my claim and irrigated from the Great Eastern 
 
 ditch in 1884 for about five years. In 1888 I moved from that 
 claim and rented it. During those years we didn’t get as much 
 water as we wanted. We got enough to be of great help, especially 
 in 1883. For five or six weeks during the summer season there was 
 a good supply of water in the ditches, but not for all the time. For 
 the last few years prior to 1904 I have not been engaged in farming 
 myself, but from what I have seen of the ditches and what I have 
 heard the farmers say I think the water must have been a great deal 
 less. I saw other ditches in operation during the ’80’s in this 
 
 2002 county, especially the Kansas ditch. I passed it about every 
 time I came to town, from 1883 to 1888. I saw the Kansas 
 
 ditch in operation in 1883, 1884, 1885, 1886 and 1887, and I think 
 some time since then too. 
 
 Cross-examination. 
 
 By Mr. Dawson : 
 
 So far as the supply of water during the past few years is con- 
 cerned, I have not given any real personal attention to that. I have 
 been living in town and engaged in the insurance business. Even 
 in 1883, 1884, and 1885 there was only a part of the growing season 
 that there was ample water for these ditches I have spoken of. My 
 recollection is that in 1883 there was water most of the time during 
 the summer season. I know I was irrigating a good deal of the 
 time during that season. In 1884 aud 1885 I was on the Great 
 Eastern ditch and the supply was not so good. I consider that irri- 
 gation is essential in this country to make sure and successful crops. 
 I think it is of vital importance to the people of western Kansas to 
 secure sufficient water for the irrigation of land if they desire to 
 make their crops grow and make the land productive. Some crops 
 can of course be raised fairly well without irrigation. 1 
 
 2003 should say that the lands which have an ample water right 
 are about two or three times as valuable as the same lands 
 
 would be without an ample water right for irrigation. 
 
THE STATE OF COLORADO ET AL. 
 
 611 
 
 2004 Millard F. Griggs, Garden City, Kansas. 
 
 Direct examination. 
 
 By Mr. Ashbaugh : 
 
 I have lived in Garden City for the last 13 years, and in Finney 
 county since 1882. I lived for a while a mile and a half east of 
 Garden City. I saw people in Finney county irrigating in 1882, a 
 mile and a half east of Garden City, from the Garden City ditch. 
 They all seemed to have plenty of water around here. I did 
 
 2005 irrigating in 1883 myself from the Garden City ditch. There 
 was plenty of water in the ditch that year at any time. I 
 
 irrigated in 1884 from the Great Eastern ditch for six years, from 
 1884 to 1890 I was at the eastern end of the Great Eastern ditch in 
 1884 and only got a small amount of water, just as it got down as 
 far as 1 was that year. I was 25 or 30 miles, probably, from 
 
 2006 the head gate. I think other people were irrigating in 1883 
 from the Kansas ditch, but I had no particular business with 
 
 it myself. The supply of water in these ditches was quite good 
 down to 1890. From about the year 1895 down to 1904 the supply 
 of water was very limited, but in 1904 it was better than usual. 
 My business is real estate and insurance. The population of Garden 
 City is about 1,700. In 1885, 1886 and 1887 it was estimated as 
 high as 8,000. My best judgment would be that in 1890 the 
 
 2007 population was about 12,000. The population of Finney 
 county at the present time is not far from 3,500. The boom 
 
 had subsided and things had gotten pretty low by 1890. The city 
 of Garden City is under the Garden City irrigating ditch and 
 
 2008 it gets its supply of water from that ditch. Some individuals 
 have sources of supply outside of the ditch, from wells. 
 
 Cross-examination. 
 
 By Mr. Hayt : 
 
 It is necessary to irrigate here during ordinary years for the suc- 
 cessful growing of crops. The land here that is under irrigation is 
 much more valuable than that that that is not under ditch. As to 
 whether that is true of this whole arid region from Kinsley to the 
 Colorado State line, I don’t really know except as to hearing it. I 
 suppose so. We haven’t had a good water supply in this county 
 for so long that values of land have decreased. We have had pretty 
 fair service this year, but it has been so poor for the last few 
 
 2009 years that it is hard to get it. The average value of farm 
 lands here under the Garden City ditch, with such water 
 
 supply as has been furnished by that ditch of late years, runs from 
 twelve to fifty dollars an acre. I should say the average value was 
 about twenty-five or thirty dollars. If we had a full water supply 
 all seasons of all years, the lands would be much more valuable. 
 
THE STATE OF KANSAS V&. 
 
 612 
 
 The people of this county are interested in the use of this water fot 4 
 irrigation, and the lands are more productive and much more valu- 
 able if irrigated than if not. We can’t grow general crops here suc- 
 cessfully without irrigation. I think we can raise cane probably 
 more than half of the time without irrigation. Barley is a fairly 
 good dry land crop, but not so sure as cane and kaffir corn. Gener- 
 ally we raise cane, kaffir corn, and broom corn. We don’t raise 
 alfalfa outside of irrigation. The other crops we generally raise 
 here are alfalfa, wheat, barley, and Jerusalem corn. All these 
 
 2010 crops are improved by irrigation, and some kinds can’t be 
 raised at all, ordinarily, without irrigation. The average 
 
 value of irrigated lands when the supply of water was good in the 
 ditches was double what it is now under some of the ditches, be- 
 cause we had more water. Our interests and those of the citizens 
 of this county is in obtaining the waters of the Arkansas river for 
 the purpose of irrigation. I think it would be to our advantage to 
 have the waters even run by here, because the water is at a 
 
 2011 greater depth, and where we depend some upon the alfalfa 
 roots tapping the moisture below it doesn’t do it so readily 
 
 now as when the water stood high in the river. The more the water 
 runs down the river the higher it stands over the bottom and the 
 better it is for alfalfa crops. It wouldn’t be to our advantage to be 
 deprived of this water for irrigation. It would be very much to the 
 detriment of this community if this water could not be used for irri- 
 gation. When I said that the water stood higher over the valley I 
 meant under the surface. 
 
 2012 W. R. Patterson, Garden City, Kansas. 
 
 Direct examination. 
 
 By Mr. Smith : 
 
 I have lived in Garden City, Kansas, for a little over four years, 
 and have lived in Finney county since 1886. I am superintendent 
 of the Farmers’ Irrigating Association which was formerly known 
 as the Kansas ditch and have been running this ditch most all the 
 time since I have been here. I commenced as superintendent in Feb- 
 ruary of 1887. I was on the ditch pretty nearly all the 
 
 2013 time until the farmers bought it. When I took charge of 
 that ditch in 1887 we had a good flow of water most all the 
 
 time. We had an ample supply for irrigation through the growing 
 season — August and September. The river didn’t go dry but one 
 time during that summer and stayed dry a little while. When I 
 commenced on the ditch in 1887 there was no waste gate or dam in 
 the river at all, and that spring we started in and put in a set of 
 waste gates. We got the piling drove, but the water got in the way 
 so that we couldn’t get the gates in. We just put in some tempo- 
 rary things there for that summer, and then I ran a little sod bank 
 
THE STATE OF COLORADO ET AL. 
 
 613 
 
 up the river for two or three hundred yards, long enough to bring it 
 up a little ways and catch the water we wanted. In 1888 I suppose 
 we ran it two-thirds of the way across the river, and in 1889 
 
 2014 we put it clear across. In 1891 and 1892 the supply of water 
 was pretty good, up until along about 1893. I believe it was 
 
 not so good then. In 1895 we had a pretty fair head of water a good 
 deal of the time during the season. In 1896 we had very little — 
 hardly any. From 1896 down to 1904 we would have a little run 
 of water but it wouldn’t last very long. We have not had any- 
 thing like enough water for irrigation in the growing season in those 
 years. We didn’t have a good supply of water. We had water at 
 times. The supply of water from 1893 down to 1904 during the 
 growing season was not nearly so good as it was when I first took 
 charge of the ditch. It was less, I suppose because there were more 
 ditches taken out of the river. The Kansas ditch depends on the 
 river for its supply of water. The flow of the river from 1893 down 
 to last year was not nearly as good as it was when I first took 
 
 2015 charge of that ditch, and as a result we had less water in the 
 ditch. This }'ear has been the best year we have had for 
 
 some time. Prior to this year I will say there was half as much 
 water in the river, taking the summer through, as in 1887. The 
 river at this point during the growing season for the last few 
 years has been frequently dry. I can’t attribute this to anything 
 unless the ditches in Colorado are doing it all the way up the line. 
 I have been in Colorado in recent years and have seen the ditches 
 there. I have been on the Highline, and have been at the head- 
 gates, and have been pretty well over the Highline ditch. It 
 would be m 3 ' judgment that the putting of water onto the 
 
 2016 uplands there is what has diminished the flow of the river. 
 They run the water out on the high lands there where it has 
 
 a poor show of getting back. It didn’t look to me like it would 
 get back to the river. The decrease in the flow of the river and in 
 this ditch has affected the lands under the ditch in this part of the 
 country a good deal. It has set the country back a whole lot too. 
 The water level under the ground here, what we call the underflow, 
 I know has lowered in the last five years. I don’t know as I could 
 say just how -much, but I know when I first came here they couldn’t 
 hardly use their cellars in Garden City on account of the water ris- 
 ing in them, and now anywhere here you can’t strike water at less 
 than ten or twelve feet the year round. This would indicate that 
 the water had dropped four feet anyway. During the years from 
 1893 down to last year it is a fact that the Kansas ditch was almost 
 abandoned so far as using water is concerned, and it couldn’t 
 
 2017 get the water supply. I have been familiar with all the 
 ditches here in Kansas. The company I used to work for 
 
 owned all three of these ditches — the Kansas, the Garden City and 
 the Great Eastern ditches. I worked on all of them. The facts I 
 have testified to in regard to the Kansas ditch are substantially the 
 
614 
 
 THE STATE OF KANSAS VS. 
 
 same with regard to the other ditches, and the decrease of the flow 
 in the river. 
 
 Cross-exa mi nation . 
 
 By Mr. Dawson : 
 
 This Kansas ditch was in the hands of a receiver for some time. 
 It is very likely that the fact that the company was practically 
 bankrupt and its property in the hands of a receiver had something 
 to do with the fact of its not being kept in repair and not 
 
 2018 used so much for irrigation. But the ditch didn’t hardly 
 pay running expenses. That had something to do with it. 
 
 That fact as well as the shortage of the water had something to do 
 with this dilapidation. There are ditches above the head of the 
 Kansas ditch, which we now call the Farmers’ ditch, in Kan- 
 sas, that are taking water from the Arkansas river. Some 
 of these ditches are younger than the Farmers’ ditch. The 
 Farmers’ ditch and the Great Eastern ditch and the West- 
 ern ditch were taken out before I came here. I don’t 
 know just exactly the difference between them, but the Ama- 
 zon ditch was taken out at a later period than the Farmers’ ditch in 
 1888 and 1889. The head of the Amazon is above that of the Farm- 
 ers, and lands have been irrigated under the Amazon in each year 
 since it was taken out. I think at present the Great Eastern and 
 Kansas are both larger than the Amazon ditch. At present the Ama- 
 zon is about one-third in size. It used to be a large ditch, 
 
 2019 but has filled up now until the capacity is not very much. I 
 don’t know what it is. I don’t know how it would average 
 
 up as to width and depth, but I have seen places in it that wasn’t 
 over ten feet. I was not here when the ditches which are younger 
 than the Farmers’ ditch up the river were taken out, but I have 
 heard that there are some that are younger. During the years I 
 have spoken of when the Farmers’ ditch was not getting the water it 
 needed for the irrigation of the lands lying under it, we didn’t take 
 any steps and the receiver in control of the Farmers’ ditch didn’t 
 take any steps to compel those younger ditches, including the Ama- 
 zon, to let the water come down to it, so far as I know. The com- 
 pany I was working for was taking steps to close the Amazon down 
 to the Great Eastern, but they didn’t have the Kansas ditch in it at 
 all ; so that these younger ditches at the time the Farmers’ ditch 
 was short of water were taking water out of the river above it. This 
 country is supposed to be a country for irrigation, about Garden 
 City. We can’t raise good and successful crops without the 
 
 2020 application of water to the soil by irrigation. So far as the- 
 people of this county and the counties to the west are con- 
 cerned, it is of vital importance to them to increase the facilities for 
 irrigation as much as possible. I should think that land in this 
 county would be worth $40 an acre, with an ample water right for 
 irrigation, and without it it wouldn’t be worth over four or five.. 
 
THE STATE OF COLOKADO KT AL 
 
 615 
 
 Four or five would be pretty high for it without any water 
 
 2021 right, and $2.50, or nothing, would come nearer the value. 
 We have got 8,600 acres covered under this ditch that I am 
 
 superintendent of, that have water rights, but there is considerably 
 more land under there that can be irrigated, but they haven’t the 
 water rights, and we haven’t the water to spare to water them. As 
 for the amount under all the ditches, I couldn’t say. I think there 
 would be 20,000 acres of land under the Farmers’ ditch that could 
 be irrigated if we had the water. I expect that under these ditches 
 in this county there must be somewhere from a hundred thousand 
 acres up that could be irrigated profitably if we had the water, 
 and I guess the same is true in a measure of the lands in Kearney 
 county. 
 
 I have heard the people of this vicinity speak about this suit. 
 From my knowledge in this and adjoining counties and from 
 
 2022 ray acquaintance with the people who are dependent upon 
 the land for their support, I believe that the citizens of this 
 
 and adjoining counties would not be in favor of the establishment 
 of a doctrine which would prevent their taking water out of the 
 river for irrigation. 
 
 I said that I thought the underflow here had lowered. I don’t 
 know what I base that opinion on unless it is that the river is dry 
 so much. That is all I can see for it. I have put down wells here 
 in different parts of this country. I noticed that the underflow had 
 lowered by my observation as to cellars that had been dug. 
 
 2023 As near as I can remember, the water was in these cellars 
 back in about 1886. I don’t think there has been any water 
 
 in them this summer. There have been times this year when there 
 has been lots of water in the river. There has been a system of 
 water works put in this town since 1886 and that drainage or sewer 
 system empties down the river somewhere. I don’t know how the 
 pipes are sunk in the ground over the town, but I don’t think it is 
 as low as the bottoms of the cellar over most of the town. I sup- 
 pose it is made on purpose so that it will drain from water closets 
 and closets put in houses and on the alleys and places of that kind. 
 I was here when it was put in. I saw the streets dug up when they 
 were laying them. The ditches looked to me to be about four feet 
 deep. 1 think they put tile pipes in them. As to the effect the 
 digging of the ditches over the town and conducting them off to the 
 river and laying in this tiling would have in reference to the water or 
 moisture in the soil, I suppose if there was water there it would 
 
 2024 lead it off and drain it, but any place I have ever seen them 
 dig there was no water there. They didn’t go deep enough. 
 
 I suppose this cellar I saw water in was something like six feet deep, 
 but I don’t know how deep the water stood in it, but I know there 
 was water in it. They have what we call storm sewers or places for 
 the rainfall that falls into these, sewers to run off instead of going 
 into the ground. I don’t know whether that would have auy effect 
 on what I call the underflow here or not. 
 
616 
 
 THE STATIC OF KANSAS VS. 
 
 I know where the Hopkins place is here in the city. It is in the 
 west part of the town. I don’t know that I ever noticed any wells 
 or cellars there, in regard to the water. 
 
 2025 I have seen that he had some wells there. I don’t know 
 to what depth you would have to go in that part of the town 
 
 to water, but I suppose something like ten feet. It is that most any 
 place here in town. If you struck water at 11 feet there in 1887 and 
 it still stood at 11 feet, there ought not to be much change in the 
 underflow in that part of the town. I don’t know whether that is 
 true, that the water stands 11 feet from the surface there at this time. 
 
 Redirect examination. 
 
 By Mr. Smith : 
 
 The river is not so wide here now as it was in 1887 along by the 
 head of our ditch. I expect it is three or four hundred feet narrower 
 up there at the head-gates. The bed of the river has filled up con- 
 siderably since I came here. Mr. Hedge is superintendent of another 
 ditch here, and he and I were talking about it and we thought 
 
 2026 it had filled up from two to three feet. For the last ten 
 years, exclusive of this year, the June rise in the river has not 
 
 been as large as it was formerly. We generally have a June rise, 
 but of recent years they don’t last as long as they used to. 
 
 Recross-examination. 
 
 By Mr. Dawson : 
 
 I think the river has filled up something like two feet here near 
 our head-gate, but I am not speaking about these head-gates 
 altogether. Our dam across the river runs from 18 inches to five 
 feet high and extends clear across the river near the head-gate of 
 the ditch. 
 
 Redirect examination. 
 
 By Mr. Ashbaugh : 
 
 The Kansas ditch and the Farmers’ ditch are different names for 
 the same ditch, and that same ditch was possibly called the 
 
 2027 Illinois ditch. It was also often called the Hudson ditch. 
 
 2028 C. A. Snyder, Garden City, Kansas. 
 
 Direct examination. 
 
 By Mr. Ashbaugh : 
 
 I live here in Garden City and am acquainted with the ditches 
 in Finney county. The Illinois ditch is what is known as the 
 Farmers’ ditch, formerly the Kansas ditch. The terms “ Illinois,” 
 and “Kansas” and “ Farmers” are just three names for the same 
 ditch. 
 
 Complainant here rested its case. 
 
THE STATE OF COLORADO ET AL. 
 
 617 
 
 Defendant Colorado’s Evidence. 
 
 October 17, 1904. 
 
 2037 Louis G. Carpenter, Denver, Colorado. 
 
 Direct examination. 
 
 By Mr. Dawson : 
 
 My home is at Fort Collins, Colorado, but I am at present located 
 in Denver, Colorado, and am the State engineer of the State of Col- 
 orado. I am a natrve of Michigan and am forty-three years old. I 
 have filled the office of State engineer since the spring of 1903. Prior 
 to assuming the duties of State engineer I was professor in the State 
 agricultural college of this State and also in the agricultural experi- 
 ment station at Fort Collins, in Larimer county, in the Poudre val- 
 ley, in Colorado. I am still a director in that institution. 
 
 In response to your request to state fully what educational advan- 
 tages I have had and what study I have given to the subject of irri- 
 gation, the use of waters and the reclamation of arid lands, I will 
 say that I had the ordinary collegiate education, graduating at the 
 Michigan Agricultural College in 1879 and doing post graduate 
 work in both the University of Michigan at Ann Arbor and Johns Hop- 
 kins University of Baltimore. My studies there were along the lines 
 of applied mathematics, physics, and fundamentally, upon the ques- 
 tion or questions of exact measurement and the deduction of scien- 
 tific laws. I studied also along the lines of engineering, and was a 
 teacher of mathematics and engineering. That was the instruction 
 which I gave for a number of years before I came to Colorado. I 
 came to Colorado at the unsolicited invitation of the board in charge 
 of the agricultural college of this State. I had previously become 
 interested in irrigation. That was in 1884, from a brief visit to Col- 
 orado, and because of the opportunities connected with the position 
 offered I took up the question of irrigation, which was to be 
 
 2038 the main subject of my work in this State. The chair which 
 was given me in the college was that of irrigation engineer, 
 
 and physics attached to it. That was the first chair of the kind in 
 the United States; and in connection with that I had occasion to 
 give the first instruction in irrigation engineering that was given in 
 the United States, and developed the first course in that subject 
 within a short time. In addition to the collegiate work was that of 
 irrigation engineer of the experiment station, which had just been 
 organized under act of Congress passed in 1888. This was tendered 
 me in May or June of that year, so that the work of develop- 
 ing that line of investigation came in connection with my other 
 work. As irrigation engineer of the experiment station the 
 work in that line was of such a character as my own 
 judgment impelled me to take up. It was largely a new 
 field in this country, in fact entirely so. From that time to this I 
 
THE STATE OF KANSAS VS. 
 
 018 
 
 have had charge of these lines of work. More lately, some six years 
 ago, I think, in addition to the position as irrigation engineer, I was 
 appointed director of the experiment station. That simply 
 
 2039 gave the added responsibility of giving general direction to 
 the work of the station. The work of the experiment station 
 
 is scientific investigation along lines important to agriculture. In 
 this State the fundamental topic in agriculture is the question of 
 water, and that means irrigation, and irrigation has been an impor- 
 tant line of investigation in the work of the station and in my own 
 individual work, and these investigations have been as ex- 
 
 2040 tensive as our means and facilities would permit. That did 
 not mean that we went into extensive laboratories but we 
 
 took that which was furnished by the conditions of the State. We 
 took the canals and streams as we found them, and instead of build- 
 ing ditches and making laboratories for investigation we took those 
 already constructed, costing hundreds of thousands of dollars, and 
 measured and experimented on them. We have carried on measure- 
 inents of the quantity of water used, of the manner in which the 
 water was disposed of, the methods of measurement, the return or 
 seepage waters, and this has been done now for fifteen years. For 
 the last five or six years we have made measurements of hundreds 
 of miles of rivers every year. Immediately after my gradua- 
 
 2041 tion I was appointed instructor in Michigan at the Agricul- 
 tural college. Some of the work of the experiment station 
 
 has been published in the form of bulletins. They are distributed 
 widely throughout the State and to all who may apply for them. 
 This is under the terms of an act of Congress, and they are 
 
 2042 published by authority of the Government; that is, they are 
 authorized and required by the act of Congress which makes 
 
 the appropriation for the experiment stations. Congress requires 
 that the stations shall publish a certain number of reports each year, 
 and that they shall be distributed freely. Each station is to a large 
 extent independent, but the Department of Agriculture has a certain 
 supervisory control over these stations and the bulletins that are 
 published go officially to the Secretary of Agriculture or the Depart- 
 ment of Agriculture, and to all other experiment stations. I have 
 prepared bulletins on the Duty of Water, Seepage Investigation, Re- 
 turn Waters, The Relations of the Forests to the Water Supply, 
 Evaporation, etc., possibly ten or more in all. There is an 
 2013 experiment station in each State and Territory. The one in 
 Kansas is located at Manhattan in the valley of the Blue and 
 Kaw, and the one in New Mexico is at Las Cruces. Among the bulle- 
 tins which I have prepared in connection with my work at the ex- 
 periment station at Fort Collins, treating of water or its duties, that 
 have been most widely circulated, are Bulletin 13, on the Measure- 
 ment of Water ; Bulletin 22, on the Duty of Water; and Bul- 
 2044 letin 33, on Return Waters. These have all been quoted 
 from and referred to by other writers. There is also bulletin 
 55. Bulletin 22 on the Duty of Water has been translated, or very 
 
THE STATE OF COLORADO ET AL. 
 
 619 
 
 largely so, by the French Government. Bulletin 55 on Forests 
 and Snow has been, I think, reprinted in this country, and its 
 plates have been reprinted repeatedly ; that is, they have been used 
 in other journals and many quotations and summaries from them 
 have appeared. 
 
 The General Government appropriates fifteen thousand dollars 
 per annum for the experiment station at Fort Collins. That is used 
 in agricultural experimentation, of which this work in irriga- 
 
 2045 tion is one of the lines. The State, through its agricultural 
 college, uses more or lees money to aid in this general work. 
 
 In my position at the experiment station I was often called on by 
 other persons living in this State and in other States and countries 
 for information in regard to water, irrigation and the measurement 
 of water and its use generally. In addition to the study of the sub- 
 ject of water referred to heretofore, I spent one summer in visiting 
 portions of France that are under irrigation, and the northern por- 
 tion of Italy, that is, Lombardy, Piedmont and Venetia, and I also 
 visited Algeria in northern Africa. On these visits the French and 
 Italian Governments did everything that could be done to 
 
 2046 make my visit profitable. I made this trip on my own 
 motion, but had official letters from officials of Colorado and 
 
 the United States, from the director of the United States Geological 
 Survey, the Secretary of Agriculture, the Secretary of the Interior 
 and the Secretary of State. If I remember rightly, I had a special 
 appointment from one of the Secretaries, which was intended to give 
 additional facilities and opportunities. 
 
 The interest which I had in water and irrigation problems was 
 largely what led me to come to Colorado. I thought irrigation was 
 an important line for this western country, one which must develop. 
 That was largely the inducement which led me to come West. 
 
 2047 In my studies of the subject of water and its uses I have 
 had occasion to become familiar with the Arkansas river and 
 
 its drainage and in addition to this have studied the subject of irri- 
 gation with reference to all that part of the country which is de- 
 pendant upon the use of water for irrigation. Most of the inquiries 
 have been in the local field, that is, in Colorado. I have visited, 
 however, nearly all of the Western States that irrigate or mignt be 
 expected to irrigate, and my investigations have been on broad, 
 general grounds, with a view to gathering such information as 
 might be valuable in the treatment of any of the territory within 
 the United States which might find it necessary to look to irriga- 
 tion to make that country show its best results. 
 
 Referring to Defendant Colorado’s Exhibit 3, 1 will state that this 
 map was prepared in my office, from the official maps of the United 
 States Land Office, with the exception of Texas. There is no 
 
 2048 public land in Texas belonging to the United States, and the 
 portion shown there came from the State map of the State of 
 
 Texas. It was prepared to show the drainage basin of the Arkan- 
 sas river from its source to its mouth. It lacks a little of the area of 
 
620 
 
 THE STATE OE KANSAS VS. 
 
 its water shed, that is, the portion covered by Missouri, because we 
 did not have an official map of Missouri. So there is a little miss- 
 ing, which can be supplied. What drainage comes from the State 
 of Missouri not shown on Exhibit 3 would come into the river far 
 below either Kansas or Colorado through tributaries that are shown 
 in part on the map, such as the Grand river, which enters the Ar- 
 kansas river in the Indian 'Territory, and the White river in 
 
 2049 the eastern part of Arkansas. There are colors on the map 
 which separate the upper Arkansas proper from the drain- 
 age of the Cimarron and also another color which separates the 
 Cimarron from the Canadian. The Cimarron enters the Arkan- 
 sas river in Oklahoma, possibly thirty miles south of the Kansas 
 line. The Canadian enters the Arkansas river in the Indian Ter- 
 ritory a little west of the line of the State of Arkausas. The Grand 
 river enters the Arkansas from the north side in the Indian Terri- 
 tory, a little west of the Arkansas State line. The Grand and Ver- 
 digris come in nearly together. No part of the waters of the Grand, 
 Cimarron or Canadian rivers reach the Arkansas until that river 
 has passed through Colorado and Kansas. 
 
 The approximate drainage area of the Arkansas river in Colorado is 
 26,000 square miles, and in the State of Kansas 20,000 square 
 
 2050 miles. That excludes the portions of the Grand and Cimar- 
 ron which enter the Arkansas below the Kansas State line. 
 
 The drainage of the Grand and Verdigris combined amounts to 
 about 20,750 square miles ; of the Cimarron 18,500 square miles; 
 of the Canadian over 46,000 square miles. These latter areas are 
 taken from the census reports. Combining all of these, the figures 
 for the Arkansas river and its tributaries would show a total 
 
 2051 drainage area of 186,000 square miles, in round numbers. 
 There is one large tributary near the mouth that is not given 
 
 on the map, that has an area nearly as large as that of the Cana- 
 dian. These drainage areas of the Arkansas river and its tribu- 
 taries appear upon Defendant Colorado’s Exhibit 3 in words and 
 figures. Describing the Arkansas river, • the whole of the river is 
 shown on Defendant Colorado’s Exhibit 3. The Canadian drainage 
 and the Cimarron drainage are, as shown by the map, practically 
 as important as the main river above their junction. The name 
 “Arkansas” is applied to the northern branch of the three. It 
 heads in the Rocky mountains, close to Leadville, and thence takes 
 a generally southeasterly course until it reaches the exit from the 
 mountains near Canon City, thence a more easterly course through 
 the State of Colorado and into Kansas. In Ford county it turns 
 abruptly northeast to the vicinity of Great Bend in Barton county, 
 and thence again to the southeast to Wichita in Sedgwick county, 
 and then a more southerly course until it passes the Kansas 
 
 2052 line. The distance to the State line of Colorado from the 
 source is 357 miles. To the point where it crosses the Kan- 
 sas line leaving that State, it is close to 750 miles. These distances 
 were obtained by going over the detail maps. They are stated from 
 
St ATE OF COLORADO ET AL 
 
 621 
 
 ttteniofy, but are approximately correct. The head waters, being 
 in the mountains, are then at a high elevation, as the mountains 
 around Leadvilleare close to fourteen thousand feet high. The two 
 extreme forks start from near Fremont pass and Tennessee pass. 
 The latter pass is the one that the Denver and Rio Grande railroad 
 goes through in crossing the continent. The amount of water shed 
 as shown by the map is narrow but broadens as it reaches the plains. 
 The tributaries include some in the extreme mountains, but the 
 greater part are outside of the mountains. In the mountains near 
 Leadville are Lake fork, Tennessee fork and the East Arkan- 
 sas. As we pass down the river another lake fork or creek comes 
 from Twin lakes and various other tributaries that flow in from one 
 side or the other. The left hand or northern water shed in the 
 mountains is narrow. The principal part of the river lands 
 
 2053 in the vicinity of Leadville are meadows, marsh and hay 
 lands. The river falls with great rapidity for the first few 
 
 miles, so that opposite Leadville, where it is very near the head, it 
 has dropped to an elevation of nine thousand feet in about fifteen 
 miles. It falls for that distance something like one hundred and fifty 
 feet to the mile. From Leadville to Salida in Chaffee county, at the 
 junction of the Little Arkansas, the valley is more or less open. It 
 has some meadows and hay land. Below Salida it narrows up into 
 a canon or gorge with comparatively little land on either side of it. 
 The area of the high water shed is relatively small. The area of 
 land above timber line is small in proportion to the whole amount 
 in the water shed. The Little Arkansas, coming from toward Mar- 
 shall pass and entering near Salida, makes practically the last trib- 
 utary of any importance of a mountain character. There are others, 
 like Texas creek, Grape creek, etc., but these are not what might be 
 termed entirely of mountain character. It is desirable to make a 
 distinction between these streams. There is a very marked type of 
 streams in the mountains. They are perennial in character, of 
 rapid flow, supplied largely by springs and melting snows until late 
 in the season. They are marked by freshests at the time of 
 
 2054 melting snow early in the season. Below the Little Arkansas 
 to Canon City the streams mostly lie at a lower elevation. 
 
 The snow does not lie long on the ground nor remain late in the 
 spring. They are supplied by melting snows in the spring and by 
 mountain rain storms, but run dry, at least they do now. Such are 
 Texas creek, Grape creek, Hardscrabble creek, Four-mile creek, the 
 Fountain and the St. Charles. These streams all head in the mount- 
 ains. Texas creek, Hardscrabble, Beaver, Four-mile or Oil creek, 
 really enter before it passes out on the plains. They are of a transi- 
 tional type, not perennial mountain streams, nor are they quite of 
 the plains type. The distinction is important as showing the gen- 
 eral character of the water supply. The Fountain, which enters the 
 river at Pueblo from the north, drains the region near Pike’s peak 
 and then passes out on the plains and has for a great part of its 
 course the typical plains character. The St. Charles, Apishipa, 
 
622 
 
 Tfrrc STATE OE KANSAS VS. 
 
 Huerfano and Purgatoire are of the same character. They head in 
 the mountains, and in the first part of their course are running 
 streams, and have the same characteristics as the upper 
 
 2055 Arkansas. Then they pass out of the mountains onto the 
 plains with a less rapid fall and a sandy bed. These streams 
 
 then practically disappear and do not reach the main river. They 
 sink. They have both the mountain character and the plains char- 
 acter. The largest part of the drainage is outside of the mountains, 
 a relatively small part being in the mountain water shed. 
 
 Following down the river we then have a series of streams that 
 are of the plains character ; pure and simple ; that is, they rise in 
 the plains, their course is through the plains and they enter the river 
 on the plains. This includes all of the streams below the Purga- 
 toire. It also includes some above, short streams that head outside 
 of the mountains, such as the Chico, Horse and Adobe creeks and 
 any number of creeks that are called creeks but really are water 
 courses or beds that streams do not often occupy. 
 
 Referring to Defendant Colorado’s Exhibit 3, the designations on 
 the map do not all represent flowing streams. Many of these 
 
 2056 so-called streams are almost universally dry. Most of them 
 are simply depressions. They are often called gulches or 
 
 arroyos. Locally a great many are called dry creeks. These 
 streams would be more properly represented on such a map by 
 dotted lines, which method is adopted on many Government maps. 
 Some Government maps so show a part of the Arkansas river. All 
 over Colorado we find innumerable creeks of this kind called “ dry 
 creek ” or “ sand creek.” 
 
 At the present moment I cannot give definitely the drainage of 
 the Arkansas river which lies in what might be called the high 
 mountains. The area of the river above Canon City is about three 
 thousand square miles, but that includes all of the moderate eleva- 
 tions, from five thousand feet up. Generally speaking, the high 
 area is small. I will furnish more accurate figures later. 
 
 Canon City is about one hundred and fifty miles from the head 
 of the stream, and Salida is about sixty miles west or up the stream 
 from Canon City. A large part of this intervening country is of a 
 moderate elevation and is a very dry country, a country 
 
 2057 which produces very little water except in times of storms. 
 It is rocky and the water that comes comes in freshets. 
 
 Texas creek and Grape creek are about the largest streams enter- 
 ing the Arkansas river between the mouth of the Little Arkansas 
 river near Salida and Canon City. (Objection.) They are not 
 streams which flow water constantly at the mouth. I know 
 
 2058 that in the upper part of Grape creek there is a great deal of 
 water, and ditches there. From the source of the Arkansas 
 
 river the Tennessee Fork junction near Leadville is fifteen miles; to 
 Twin Lakes creek thirty miles ; to Salida eighty-one miles ; to the 
 Bessemer ditch head-gate one hundred and sixty-nine miles; to 
 Canon Cit} f one hundred and thirty -six miles ; to Pueblo one hun- 
 
THE STATE OF COLOR A 1)0 ET At. 
 
 m 
 
 dred and eighty-miles; to the Colorado canal two hundred and 
 eight miles; to the Oxford Farmers’ dam two hundred and 
 fifteen miles; to the town of Rocky Ford two hundred 
 
 2059 and forty-eight miles; to the Fort Lyon canal two hun- 
 dred and fifty-eight miles; to the mouth of the Purgatoire 
 
 two hundred and eighty-six miles; to the Colorado-and-Kansas dam 
 three hundred and nine miles ; to the Amity canal three hundred 
 and fourteen miles; to the Katisas-Colorado line three hundred 
 and fifty-seven miles; to Coolidge three hundred and fifty-nine 
 miles ; to Syracuse three hundred and seventy-six miles ; to Hart- 
 land four hundred miles; to Lakin four hundred and seven miles; 
 to Garden City four hundred and thirty miles ; to Dodge City four 
 hundred and seventy-four miles; to Kinsley five hundred and 
 twenty-one miles; to Great Bend five hundred and seventy miles; 
 to Hutchinson six hundred and twenty-six miles ; to Wichita six 
 hundred and seventy-four miles; to Arkansas City seven hun- 
 dred and thirty-four miles; to the Kansas-Oklahoma line seven 
 hundred and forty-six miles. From Canon City to the Colorado- 
 Kansas line it is two hundred and twenty-one miles by river as 
 near as we could determine from maps on the largest scale we had. 
 These distances are not in a straight line, but are the actual \enghts 
 on the river as near as it could be ascertained. 
 
 2060 Referring to the fall of the Arkansas river, at its extreme 
 head you can put the elevation at most anything from ten 
 
 to fourteen thousand feet. Fremont pass is about eleven thousand 
 feet, and Tennessee pass three thousand three hundred feet. From 
 there down to the junction of the first forks the river has a fall of 
 one hundred feet and over to the mile ; from that point to Canon 
 City, at an elevation of 5,330 feet, it has a fall of fifty to thirty feet 
 per mile; from there to Rocky Ford the river drops all together 
 nearly twelve hundred feet, with a grade rapidly decreasing from 
 Pueblo on. Down to Pueblo the grade is in the neighborhood of 
 twenty feet per mile. From there to Rocky Ford it decreases to 
 about seven feet to the mile. At Pueblo it has practically reached 
 the plains rate of flow. From Rocky Ford to the State line the 
 grade fluctuates from nine feet down to six feet per mile with a tend- 
 ency to grow less as you go east. At the State line, with an eleva- 
 tion of 3,345 feet, the fall is probably between seven and eight feet 
 per mile. At Garden City, at an elevation of 2,825 feet, the fall is 
 between six and eight feet per mile; at Dodge City, elevation 2,465 
 feet, at Kinsley, 2,155 feet, at Great Bend, 1,840 feet, the fall be- 
 tween Dodge and Great Bend being nearly six and one half 
 
 2061 feet per mile for the whole distance. At Wichita, elevation 
 1,300 feet, the fall is less than five feet to the mile. At the 
 
 Kansas-Oklahoma line the fall is just about four feet per mile. At 
 Arkansas City the elevation is 1,040 feet, so that the Kansas-Okla- 
 homa line is just about 1,000 feet elevation, and the fall is about 
 three to four feet to the mile. 
 
 Referring to tributaries like Grape creek, Texas creek, Four-mile 
 
624 
 
 f rti£ staI'e of Kansas V& 
 
 or Oil creek, Beaver creek and Hadscrabble, which partake of the 
 character of both the mountain and plains streams, they may be often 
 flowing water for the first ten or fifteen or twenty miles of their 
 length from their source when they would be flowing no water 
 
 2062 on the lower reaches of the stream, though no interference 
 had been had with this stream. The streams known as the 
 
 plains streams, those emptying into the Arkansas below the ones 
 last named, which rise on the plains, a region of comparatively small 
 rainfall, almost free from springs, are not as a rule running streams. 
 Their beds are sandy. The storms form practically their only 
 
 2063 source of supply and the water runs off immediately, so that 
 they are streams high in flood times and dry for nearly all 
 
 the rest of the year. In flood they are often very wide and carry 
 large amounts of water. They are violent, broad and rapid. The 
 year’s supply of water practically comes down in a few days or hours. 
 After these floods run by they often leave the stream with a wide 
 channel, so that so far as all the physical appearances of the stream 
 are concerned it is a big river, except for water; that is, it has a 
 broad bed. Speaking of precipitation, that in the Colorado water shed 
 of the Arkansas river is not far from fourteen inches per annum, 
 perhaps a little more. That is an average covering the whole 
 drainage area within the State for a series of years. It varies 
 
 2064 some at different points within the State, but not much. The 
 high mountain peaks have the heavier precipitation, but we 
 
 have no records of any of them on this water shed except at the ex- 
 treme elevation of Pike’s peak. Some records have been taken in 
 the vicinity of Leadville, but they have been exceedingly poor. I 
 had occasion a few' years ago to look up all the information that 
 was available and came to the conclusion that the precipitation in 
 the greater part of the high water shed was very little more than at 
 the foot hills. At Pike’s peak for the first few years of the United 
 States records the precipitation was a great deal more than during 
 the last years. During the last ten or twelve years the precipita- 
 tion has been almost the same or little above that of Colorado 
 Springs and other adjacent points. The precipitation towards 
 the east line of the State increases slightly. My conclusions as 
 to precipitation are based upon the voluntary observa- 
 
 2065 tions of the United States Weather Bureau, and volun- 
 tary observations reported to me. I have some twenty to fifty 
 
 rain gauges scattered in different parts of the State. At some 
 points in Colorado, such as Las Animas, observations have been 
 carried on since early in the ’70’s, and a few of the forts kept early 
 records. I cannot state as confidently the average precipitation 
 in the drainage area of the Arkansas river in Kansas. We have 
 made requests for data, all of which has not come to hand. In 
 Dodge City, Kansas, for thirteen years the average precipitation has 
 been twenty inches and a few hundredths. At the Colorado-Kansas 
 line the average is not far from fourteen inches — possibly sixteen. 
 At Wichita the average is something over thirty inches. From 
 
THE STATE OF COLORADO ET AL. 
 
 625 
 
 there on south and east in Kansas it increases, so that it 
 
 2066 is nearly thirty -six inches at Arkansas Cit} 7 . The average 
 precipitation in the Arkansas valley in Kansas is about 
 
 twenty-five inches. 
 
 As the rainfall or precipitation increases the amount of run-off 
 from such rainfall increases much more rapidly than the rainfall 
 does. In explanation of this I would say that if the rainfall is 
 small nearly all or all of it is taken up by the ground and evapo- 
 rated. Any rainfall may be divided into that which is absorbed by 
 the ground and that which runs off over the surface. Of that which 
 is absorbed by the ground some will evaporate and some will disap- 
 pear into the ground and subsequently form springs. If the rain 
 comes in slow, gentle showers, it will nearly all be absorbed, but if 
 it comes in a sudden, violent burst, a large part will run off and very 
 little will sink into the ground. If the rainfall is small there is not 
 enough to extend down to the lower levels and join with the water 
 already there, but it simply moistens the surface. A rain of an inch 
 in depth falling gently enough to be absorbed will saturate the 
 ground to a depth of about five inches — about the ratio of 
 
 2067 one to five — and that is a very heavy rain as rains go in this 
 region, for instance, where rainfalls are relatively slight, that 
 
 is, fourteen or fifteen inches per annum. After the rain has passed 
 away the sun and winds begin to act. The evaporation proceeds 
 and the water that is within a moderate distance of the surface evap- 
 orates, and hence unless there is a heavy rain so that it soaks into 
 the ground there is not enough soaking into the ground to form 
 springs of any consequence. As you increase the rainfall the num- 
 ber of these heavy storms increases and the evaporation on the whole 
 tends to decrease. The capacity of the air for moisture is less, and 
 after satisfying the atmosphere there is a much larger surplus, 
 and it is the surplus which runs off and forms the streams. Hence 
 with a rainfall of thirty inches there would be a great deal more 
 than twice as much run-off as with a rainfall of fifteen inches. Out 
 of fifteen inches of rainfall there will be very little left after evapo- 
 ration takes place to form streams ; out of thirty inches of rainfall, 
 not everything above fifteen inches but a great deal larger propor- 
 tion — five or ten inches — will run off to the streams; while a rain- 
 fall of fifteen inches will leave probably less than one inch to form 
 in the streams ; therefore the supply of water increases very rapidly 
 with the amount of rainfall. 
 
 2068 The Arkansas river partakes very much of the character 
 of the intermediate streams which I have described, such as 
 
 Grape creek, Texas creek, the Fountain, and the Purgatoire, in the 
 fact that the upper reaches of the stream have constantly running 
 water; then it runs out on the plains in a broad, sandy bed and the 
 stream then tends to disappear, the same as the creeks above named 
 and others of like character. This characteristic is commonly true 
 of the streams along the mountains. The Platte is of the same 
 
 40—7 
 
626 
 
 THE STATE OF KANSAS VS. 
 
 character, and also the Rio Grande. The Rio Grande has 
 
 2069 practically no tributaries after it reaches the plains. It has 
 really but one, below Del Norte, in Colorado, although there 
 
 are a good many that are fine running streams in the mountains, 
 but as such streams reach the sandy bed, filled with sand and gravel 
 for some feet, and with heavy evaporation, they grow less and fre- 
 quently disappear. The Arkansas might then be appropriately 
 called two rivers, or a broken river. We have the upper end a 
 running river, the lower end a running river, and between these two 
 living streams we have a portion that has been, from time im- 
 memorial, dry from time to time. In the absence of irrigation the 
 upper river would begin to dwindle at its exit from the mountains. 
 There are such tendencies now. There are portions of the stream, 
 as at Pueblo, where it becomes less. Irrigation modifies this tend- 
 ency to some extent, by the return water coming in from springs. 
 The decrease is therefore most marked below Lamar, and in fact so 
 far as our measurements have gone, more below Coolidge, and quite 
 rapidly from there on. The lower stream I have not seen dry, so 
 far as my limited experience has gone, below the mouth of the Lit- 
 tle Arkansas river at Wichita. I have met in reading references to 
 its being dry below there, but that has been the extreme point I 
 have noticed. 
 
 2070 Without irrigation the Arkansas river would have a tend- 
 ency to disappear and become dry between Lamar, Colorado, 
 
 and Great Bend, Kansas, which would leave a stretch of about two 
 hundred and seventy-five miles dry at times. There might of course 
 be local conditions along this stretch of two hundred and seventy- 
 five miles that would put more or less water in the river at 
 times. 
 
 2071 Speaking of the character of the river bed itself, from 
 Canon City up it is of a mountain character, with a rigid 
 
 stream, and with boulders and gravel, a bed rock showing at places 
 and close to the surface at other places. From Pueblo east it takes 
 the character of a sandy bed most of the way ; that is, sand and 
 gravel, the sand becoming finer as a whole as you go further east. 
 The bed rock is not close to the surface except at places, as at Rocky 
 Ford, from old Fort Lyon to the Amity dam. At some places in 
 Kansas it appears as though rock should be near the surface, from 
 the rocks on the side, but it does not appear. The river in- 
 creases in width from Canon City or Pueblo to about Coolidge, and 
 for a distance of fifty or a hundred miles there the river bed from 
 bank to bank remains at a broad width — practically a thousand 
 feet ; then from there on practically to Arkansas City there is a dis- 
 tinct tendency for the river to narrow up. This is shown in 
 
 2072 the cross sections of the river which we have had occasion 
 to take. The banks almost all the way through Kansas are 
 
 lower- -three or four feet high — and also through Colorado below 
 Pueblo. That is, we have a river bed with low banks, at first bot- 
 tom, which generally is narrow — half a mile to very rarely much 
 
THE STATE OF COLORADO ET AL. 
 
 62? 
 
 more than that — these low banks extending all through Kansas in 
 the natural state. At Wichita and other places the banks were 
 built up. But the tendency of the river to disappear is shown by 
 the dimensions given. Through Kansas the bed of the river is 
 made up of sand of apparently great depth. At places the material 
 deposited by the river in one way or another is of considerable 
 depth, but how much we do not know. All along they have 
 
 2073 sunk wells eight to twenty feet, and we have records at other 
 places, deeper. Throughout Kansas and along the Arkan- 
 sas river and through part of Colorado we have long stretches of 
 sand hills, sometimes becoming sand dunes. These prevail more on 
 the south side of the river and often forma stretch of sand varying in 
 width from two or three to a dozen miles. It consists of a fine sand 
 that has been blown up and sametimes forms hills of considerable 
 height. These hills are nearly always confined to the south side of 
 the river. It is through these sand reaches from the Kansas-Col- 
 orado line to below Great Bend, Kansas, that great losses occur in 
 the flow of the water in the river. 
 
 The Arkansas river differs from low land streams, those found in 
 the humid regions, such as the Eastern States, in that its additions 
 or its increase of supply from the country that it covers or goes 
 through is relatively small. It has relatively few springs through 
 a great part of its course from Pueblo down to about Great Bend, 
 while a low land-stream, or such as typify the eastern streams, is one 
 constantly increasing in size as it goes. Such a stream has a great 
 number of springs and a great number of tributaries which are simply 
 a collection or a series of streams; and then in the bed it- 
 
 2074 self and along the banks it has constant accretions. That is 
 not the case with the plains stream. Instead of increasing as 
 
 the eastern streams do these streams of which the Arkansas river is 
 a type become less in passing through this non-supplying country. 
 The country is one of low rainfall and hence very little water runs 
 in in that way. After you have passed down the Arkansas river 
 until you have reached Hutchinson in Reno county, Kansas, a trib- 
 utary enters which is practically the first tributary since leaving 
 the mountains that is perennial. That is Cow creek. At Wichita 
 on the north side comes in the Little Arkansas river, and Chisholm 
 creek; on the south the Ninnescah ; and from there on are tribu- 
 taries all along. From Hutchinson back to Salida, Colorado, there 
 is practically no perennial tributary. I think Walnut creek at Great 
 Bend could scarcely be put in that class, though it may run some 
 water nearly all the year. From Hutchinson down, the river as- 
 sumes a new character and partakes more of the character of the 
 ordinary streams as known in the Eastern and Middle States. 
 
 2075 I have made measurements and investigations which should 
 throw light upon the tendency of the Arkansas river to lose 
 
 water between the Colorado-Kansas line and Great Bend or some of 
 the towns farther down. We have made these measurements of the 
 river in Kansas during the past two years, keeping records of the 
 
628 
 
 THE STATE OF KANSAS VS. 
 
 various places, and have traced down certain floods that passed the 
 State line, and have kept a record of the height, and have also made 
 measurements of the quantities of the water at different places. 
 One such flood was followed in August, 1902, and there have been 
 numerous ones in 1903 and 1904. For the past two years we have 
 kept constant records of the stream at various selected points in 
 Kansas. This consisted of a double system — first local observers 
 who kept a daily record of the height of the water. That of 
 
 2076 course would give the height but not necessarily the quantity. 
 Then in addition to that I have measured or have had 
 
 measurements made from time to time of the river at different 
 stages. When we had news of a particular flood we then followed 
 it down. Very often we would make the measurements of a flood 
 at a certain place, then take the train and go ahead and be at the 
 next place before the flood, and thus make a series of measurements 
 in determining the amount of water passing each place. We had 
 gauging rods properly marked so that the height of the water could 
 be determined and so that if they were interfered with it could be 
 detected. It is the same system established and in use by this State 
 for many years in keeping a record of rivers, and the same as that 
 employed by the United States in their stream records. In several 
 of these places in Kansas we had the same observers as the 
 United States. We employed the same people for keeping the 
 records. 
 
 2077 In interpreting these heights shown on the gauge rods, 
 that is, in evaluating them in quantities — and that has been 
 
 done at each of these places at different heights — we made rating 
 curves, which are used simply as a means of putting the data in 
 shape so that we could estimate the quantity of water at any inter- 
 mediate height. In following these floods we ascertained about 
 how long it took for them to travel between different points on the 
 river, so that we could tell quite accurately where a given flood 
 would be at a given time, though we could not tell this with certi- 
 tude. (Objection.) In the August flood of 1904 the water arrived 
 at Garden City, Kansas, within about fifteen minutes of the 
 
 2078 time we had predicted the day before. We were taking tes- 
 timony in this case at Wichita at the time, and the arrival of 
 
 the flood at Coolidge, Kansas, was reported to me there, and the pre- 
 diction as to when it would reach Garden City was based upon that. 
 The distance between Coolidge and Garden City is about seventy- 
 two miles. This flood travelled at the rate of about two or 
 
 2079 three miles an hour. The rapidity with which the water in 
 the river ordinarily flows is different at different points ac- 
 cording to the fall. I cannot give that exactly now, but in Kansas 
 it probably runs about two feet per second, and the fall varies from 
 about seven to four feet per mile, and that would take off about a 
 third ur a quarter of the velocity of the flow. 
 
 Referring to the loss of water by the river, I will say that the 
 river very rapidly decreases in its flow in the quantity of water, that 
 
TEE STATE OF COLORADO ET AL. 
 
 629 
 
 taking a given quantity of water at any of the places in western 
 Kansas, that quantity very rapidly decreases. That has been 
 
 2080 shown by numerous measurements and bv recent floods. I 
 have two or three diagrams here of floods, that have been 
 
 worked out and that show the changes in the flood heights and the 
 flood quantities. Referring to the diagrams showing the floods of 
 May and June on the Arkansas river — the first, marked Defendant 
 Colorado’s Exhibit 4, showing the flood of May 3rd, 1904, the next 
 marked Defendant Colorado’s Exhibit 5, showing the flood of June 
 1st, 1904, and the next, marked Defendant Colorado’s Exhibit 6, 
 showing the flood of June 2nd, 1904 — these three diagrams are 
 drawn in essentially the same manner, from the same data, and 
 show essentially the same matter, except that they represent 
 
 2081 three different floods on the Arkansas river. The dotted lines 
 that are drawn show the water and its quantity at different 
 
 places along the river which are indicated at the side; that is, at 
 Coolidge, Garden City, Dodge City, Kinsley, Great Bend, Hutchin- 
 son, Wichita and Arkansas City, in Kansas. The scale of the dia- 
 gram is to the left, showing the number of cubic feet per second. 
 The horizontal scale shows the day of the month. So that the com- 
 bination of these two shows the change in the river at each of these 
 eight places. The height of the line or the distance the line is from 
 the bed indicates the quantity of water in the stream at the particu- 
 lar time indicated by the horizontal scale. If they were all measured 
 from the same horizontal line at the bottom the lines at the different 
 places which represent the flow would become confused, because one 
 would fall on top of the other, hence to prevent that confusion the 
 base line at each place from which the quantities are represented 
 on the diagram is dropped down one square for each station going 
 east. Thus the quantities at Coolidge are measured from a certain 
 line approximately near the middle of the diagram ; Garden City is 
 measured from a line one square below, etc. Otherwise the lines 
 would intermingle and become confused. 
 
 2082 Taking Defendant Colorado’s Exhibit No. 4, this shows 
 first at Coolidge, by the first and highest dotted or broken 
 
 line, that the flood reached a quantity of ten thousand cubic feet 
 per second of time on the latter part of May 3rd ; that on the morn- 
 ing of May 4th it had dropped down to nine thousand ; that during 
 the afternoon of May 4th it had dropped to less than six thousand, 
 on the morning of May 5th to a little over three thousand, and on 
 the evening of May 5th to a little over one thousand ; then it re- 
 mained nearly stationary during the night and dropped down the 
 next day to less than five hundred ; then it rose on the 7th to nearly 
 three thousand, dropped down again toward evening, and then re- 
 mained at one or two hundred cubic feet per second of time from 
 the afternoon of the seventh practically up to the twentieth and 
 twenty-first; that in fact the flood itself had practically disappeared 
 by the tenth, so that the flow then was practicality nothing, — a hun- 
 dred feet or less. Now, that is at Coolidge. A dotted line here 
 
630 
 
 THE STATE OF KANSAS VS. 
 
 shows the corresponding data for Garden Ci t^y that can be 
 traced out correspondingly. You will notice that while the 
 
 2083 flood at Coolidge reached a maximum of ten thousand feet on 
 the afternoon of May 3rd, the flood at Garden City was 
 
 about 8,000 feet, this particular one first observed on May 5, and 
 that likewise increased very rapidly and at Dodge City it reached 
 the highest point or a little over 3,000 feet. The difference shown 
 between the Garden City line and the Dodge City line would indi- 
 cate that the river had decreased between these two places by the 
 corresponding difference, and likewise at Kinsley, where the high- 
 est amount was 1,800 feet. At Great Bend it was about the same 
 thing — about 2,000 feet. At Hutchinson it was slightly over 1,000 
 as the highest amount. At Wichita, it ran up to slightly over 1,000. 
 At Arkansas City we then have those other streams — slight streams 
 between — that brought it up to slightly above 2,000. That is the 
 first May flood. Defendant Colorado’s Exhibit 4, just explained, is 
 characteristic of the other two, and the flood it represents 
 
 2084 may be called characteristic. It is one in which there was 
 very little disturbance from rain along the line. The one 
 
 marked Defendant Colorado’s Exhibit 5 has some local rains that 
 have caused some local rises below which can be seen on the dia- 
 gram and are not due to the flood. Defendant Colorado Exhibit 6 
 is also a typical one. We have traced other floods besides the ones 
 which these particular diagrams represent. 
 
 (Defendant Colorado’s Exhibits 3, 4, 5, and 6, offered in evidence. 
 Objection.) 
 
 These exhibits numbered 4, 5, and 6, were prepared by measure- 
 ments made by me or under my direction and were drafted under 
 my direction. 
 
 2085 The diagram marked Defendant Colorado’s Exhibit 7 gives 
 the widths of the bed of the Arkansas river at different 
 
 places in Colorado. The data for this was obtained from our offi- 
 cial records which are a little different in character in some differ- 
 ent places. Most of these are made from actual measurements, and 
 all of them are correct within a few feet and are arranged in the order 
 of the river — the upper one is near the mountains and the 
 
 2086 lower ones farther down. At the gaugingstation at Canon City 
 the width of the river is 100 feet. At the Union Avenue 
 
 bridge, at Pueblo, where our gauging station is located, it is 154 
 feet; at the bridge just below the mouth of the St. Charles river it 
 is 300 feet; at the Oxford Farmers’ ditch it is 420 feet: at the Otero 
 bridge at La Junta it is 420 feet; at the Manzanola bridge it is 350 
 feet; at Swinck’s bridge it is 355 feet; at the Fort Lyon dam it is 
 480 feet; at the La Junta bridge 556 feet; at Robinson bridge, 425 feet; 
 at the Colorado-and-Kansas dam, 490 feet; at the Amity dam 504 
 feet; at the bridge at Lamar 850 feet, and at the Carlton bridge 800 
 feet. The diagram marked Defendant Colorado’s Exhibit 8 shows 
 the widths and cross sections of the Arkansas river in Kansas, also 
 
THE STATIC OF COLORADO ET AL. 
 
 681 
 
 the contour of the river bed, all prepared from actual meas- 
 
 2087 ureinents made with level and measured with tape during 
 the summer of 1903. This diagram shows the widths at 
 
 various points on the Arkansas river from Coolidge, Kansas, down. 
 The scale is shown on all of these diagrams, and the left hand sides 
 are placed very nearly in the same line vertically. At Coolidge the 
 river’s width is 1,435 feet ; at Syracuse 780 ; at Garden City 980, 
 with 200 feet of bridge beyond it; at Dodge City 550; at Kinsley 
 920 ; at Larned 500 ; at Great Bend a little over 700 feet ; at Hutch- 
 inson 1,020 feet; at Wichita 500 feet, and at the Madison Avenue 
 bridge, Arkansas City, 480 feet. The Wichita measurement was 
 made just below the Douglas Avenue bridge. 
 
 (Defendant Colorado’s Exhibits 7 and 8 offered in evidence). 
 
 2088 There are some terms used in the discussion of water and 
 its uses in Colorado which might property be defined, among 
 
 which are “ cubic foot,” “ cubic foot per second,” “ acre foot,” and 
 “ inch,” and their relations or ratios. A cubic foot is 1728 inches. 
 It is the quantity which would be required to fill a box 1 foot cube. 
 It is also equivalent to 7.48 gallons. For convenience it is usually 
 satisfactory to take 7f gallons. A cubic foot per second is a unit of 
 a different kind. It represents a rate of flow, while the cubic foot 
 is simply an absolute unit of quantity. A cubic foot per second 
 would supply a cubic foot in one second and would fill a box 
 
 2089 one foot on a side in one second, or 7.48 gallons in one sec- 
 ond, or 448 gallons in one minute. The cubic foot per 
 
 second is the unit used in Colorado by law in stating the capacities 
 of ditches and is the common unit used by engineers in expressing 
 the flow of running water in streams or ditches. The term “ inch ” 
 is sometimes spoken of as the “ water inch ” and is also used to ex- 
 press the quantity of water running in a stream or the rate of flow. 
 It, however, is an indefinite unit. It takes into account simply the 
 cross section of a ditch or stream without taking into account its 
 speed, and is not an exact unit. The statutes of Colorado and some 
 other States have attempted to define “ inch ” and have therefore 
 given it a statutory meaning. In that case it is the amount of 
 water that flows through a hole of a definite size and with a 
 definite head, but the other conditions are varying. A cubic 
 foot is approximately equal to 38 statutory inches in Colorado. In 
 California it is 50, as fixed by statute. This unit is sometimes con- 
 founded with cubic inches. A cubic inch is a definite measurement 
 of quantity while a water inch is intended to measure a rate 
 
 2090 of flow. But they are units of different character. So the 
 flow of a water inch in a second would give approximately 
 
 45 cubic inches. “Acre foot ” is also a unit of quantity. It does not 
 involve the idea of time; it simply represents the amount of water 
 that would be required to cover an acre one foot deep. It is there- 
 fore, 43,560 cubic feet. It is very often used in larger terms, as “ ten 
 acre feet.” That expression would mean either water ten feet deep 
 
632 
 
 THE STATIC OF KANSAS VS. 
 
 over one acre or water one foot deep over ten acres. There is a 
 simple relation between cubic foot per second of time and acre foot 
 that is closely approximate; that is, one cubic foot per second flow- 
 ing for 24 hours will give two acre feet ; that is within less than one 
 per cent., close enough for ordinary purposes. The term “ acre foot ” 
 is found convenient in expressing the amont of water stored in res- 
 ervoirs. Its value is as a unit of measurement, and to the people 
 using it it represents at once approximately the number of irriga- 
 tions that they may obtain from a given quantity of water. If you 
 have ten acre feet it will be equivalent to enough water to 
 
 2091 irrigate 20 acres six inches deep. The other term, “ cubic 
 foot per second of time/’ is convenient because it expresses 
 
 the size of a running stream, which, in taking water from ditches or 
 streams, is important as enabling one to express the size of the stream 
 which he is taking. 
 
 The term “ seepage ” as used in an irrigated country represents 
 either the water that seeps into our out of a ditch — leakage. It is, 
 the percolated water or waste water lost by the slow percolation of 
 the water through the interstices of the soil that disappears in in- 
 visible sources from a ditch. That would be the water lost by seep- 
 age. The water that comes into a ditch by seepage would be the 
 water that comes in in numerous fine channels in the soil or by per- 
 colation through the soil. They are not channels but simply an 
 oozing out of the banks. The same is true as to streams. 
 
 2092 Seepage and drainage in a measure are the same. As to 
 seepage water, we know its origin, that is, we know it comes 
 
 from water supplied by irrigation. Seepage waters such as come 
 from irrigated lands are similar for practical purposes to what might 
 be called drainage waters from lands saturated to the same point by 
 ordinary rainfall, but with us, when we use those terms, the uni- 
 versal application is to waters of this character put onto the ground, 
 and the origin of them is easy to distinguish in this country because 
 most of this region where seepage water is found was originally dry 
 within the memory of man. The term “ return waters ” simply ap- 
 plies to these seepage waters as they come back to a stream, and the 
 term has become quite well fixed in that regard. We take 
 
 2093 water out of a stream and spread it over the land for irriga- 
 tion, and “ return waters” means the percentage that returns 
 
 to the stream, arid it becomes quite a marked addition to the stream. 
 The term “flood waters” is used to describe the sudden rises that 
 occur in the more or less dry streams. It may be anything 
 
 2094 from a few inches flow to many feet. 
 
 In studying the Arkansas river and its history I have taken 
 occasion to examine all of the historical works bearing upon the 
 stream that I have access to in the library of the State of 
 2096 Colorado and elsewhere so far as available. (Objection.) 
 
 These consist to some extent of Government reports by Gov- 
 ernment explorers and Government engineers and by other travel- 
 lers. The character of these reports differ to some extent, depending 
 
THIS STATU OF COLORADO KT AL. 
 
 633 
 
 on the characteristics of the writers. Some were better observers 
 than others. Some will note features which strike them and others 
 those which impress them. The writers frequently refer to the river 
 being practically drv at portions where they have struck it, which 
 was generally on what was afterwards known as the Santa Fe trail, 
 which struck the river near where Great Bend, Kansas, now is, and 
 passed up along side the river to the neighborhood, I think, of 
 Hartland, Kansas. One branch was still farther up. In that por- 
 tion it is quite frequently the case that these writers and travellers 
 have spoken of the river being dry or practically dry at the time 
 when they were there, and have spoken of it as characteristic of the 
 stream, as of other plains streams in the western part of the 
 
 2097 United States — that it was a common characteristic. The 
 first explorer through there whose work I have consulted — 
 
 and he was the first American to explore that region — was Major 
 Zebulon M. Pike. He was major in the United States Army imme- 
 diately after the purchase of Louisiana. Pike in 1805 was sent to 
 explore the sources of the Mississippi, and in 1806 he was assigned to 
 explore the sources of the Arkansas river, though that purpose was 
 stated in a little different way. It was an important trip to the United 
 States, in a new countrj 7 . The Arkansas river was the boundary be- 
 tween the United States and the region to the south. He came up the 
 stream in 1806 on a trip to determine the character of the boundary, 
 its location, and a part of his instructions was that heshould determine 
 it so as to make it the basis of a convention with Spain. He was to 
 ascertain the direction, the extent, etc., of the Arkansas river and 
 the Bed river. He struck the Arkansas river where Great Bend, 
 Kansas, now is on October 17, 1806, and from there passed 
 
 2098 up the river to Pueblo, Colorado. His journal was in the 
 form of a narrative, and he also sums it up in a letter to his 
 
 commander and it was repeated by one of his lieutenants who was 
 detached at Great Bend and went down the river. (Motion. I 
 have Pike’s report, and a reprint edited dy Doctor Elliot Coues, who 
 has edited the works of a great many of these early western ex- 
 plorers. The original edition was the official report to the Govern- 
 ment, and I have examined it as well as the edition of this report 
 edited by Coues. The texts in the two seem to be identical. Coues 
 has added notes, and I considered it the more valuable of the two. 
 He has taken pains to identify many of the points which Pike 
 
 2099 described but for which he had no names. On page 427 of 
 volume II of the book entitled “ The Expedition of Zebulon 
 
 M. Pike,” edited by Elliot Coues, published by Francis B. Harper 
 in New York in 1895, Pike’s journal shows, October 18, 1806, the 
 following relating to the Arkansas river : 
 
 “They informed us that the party was encamped on the Arkan- 
 saw, about three miles south of where we then were ; this surprised 
 us very much, as we had no conception of that river being so near. 
 On our arrival we were met by Lieutenat Wilkinson, who, with all 
 the party, was greatly concerned for our safety. The Arkansaw, on 
 
634 
 
 THE STATE OF KANSAS VS. 
 
 the party’s arrival, had not water in it six inches deep, and the 
 stream was not more than twenty feet wide ; but the rain of the two 
 days covered all the bottom of the river, which in this place is four 
 hundred and fifty yards from bank to bank. These are not more 
 than four feet in height, bordered by a few cottonwood trees ; on the 
 north side is a low, swampy prairie; on the south, a sandy, sterile 
 desert at a small distance.” 
 
 2100 On page 517 of the same volume, in a general summary of 
 his course, which he has written to General Wilkinson, who 
 
 has given him instructions, he states as follows : 
 
 “The river at the place where I struck it is nearly five hundred 
 yards wide from bank to bank, those banks not more than four feet 
 high, thinly covered with cottonwood. The north side is swampy, 
 low prairie, now identified as Cheyenne bottoms, and the south a 
 sandy, sterile desert. Thence, about half way to the mountains, the 
 country continued with low prairie hills, and scarce^ 7 any streams 
 putting into the river ; and on the bottom are many bare spots on 
 which, when the sun is in the meridian, is congealed a species of 
 salt sufficiently thick to be accumulated, but so strongly impregnated 
 with nitric qualities as to render it unfit for use until purified.” 
 
 The Cheyenne bottoms referred to in this quotation are a few 
 miles from what is now Great Bend, Kansas. It has been proposed 
 at times for a reservoir. 
 
 Lieutenant Wilkinson was sent down the river and had thought 
 Pike was lost. He therefore covered somewhat the same 
 
 2101 ground in his report. On page 546 of the volume last re- 
 ferred to he states : 
 
 “At daybreak (this was October 15, 1806) I was I was awakened by 
 ray old and faithful Osage, who informed me that we were on the 
 banks of the Arkansaw river. I immediately arose, and discovered 
 my tent to have been pitched on the margin of a water course nearly 
 four hundred yards wide, with banks not three feet high and a stream 
 of water running through it about twenty feet in width and not more 
 than six or eight inches deep.” 
 
 Lieutenant Wilkinson had been with a detached party that reached 
 the river a day or two ahead of Pike. Coues, who was an army sur- 
 geon, in a note of his own, which he states was pencilled by him on 
 June 3, 1864, describes the river thus on page 435 of the volume last 
 referred to: 
 
 “Our route since leaving Larned has been mostly along the north 
 bank of the Arkansaw. Queer river that — a great ditch, chock full 
 of grassy islets stretching through the treeless prairie like a spotted 
 snake, some seasons so dry you cannot wet your foot in it for miles, 
 and have to dig fora drink, sometimes a raging flood two hundred 
 yards wide.” 
 
 2102 On page 520 of the same volume Pike describes the river 
 as follows : 
 
 “It has one singularity which struck me very forcibly at first 
 view, but which, on reflection, I am induced to believe is the same 
 
THE STATE OF COLORADO ET AL. 
 
 635 
 
 case with all the rivers which run through a low, dry, sandy soil in 
 warm climates, as I observed it to be the case with the Rio del Norte, 
 viz : for the extent of four hundred or five hundred miles before you 
 arrive near the mountains, the bed of the river is extensive and a 
 perfect sand-bar, which at certain seasons is dry, or at least the water 
 is standing in ponds not affording sufficient to procure a running 
 course; but when you come nearer the mountains you find the river 
 contracted, a gravelly bottom, and a deep, navigable stream. From 
 these circumstances it is evident that the sandy soil imbibes all the 
 (not evaporated) waters which the sources project from the mount- 
 ains, and renders the river in dry seasons less navigable 500 than 
 200 miles from its source.” 
 
 From my examination of this account of Lieutenant Pike’s explo- 
 rations, I am satisfied that where he refers to navigation it means 
 navigation by canoes only, or buffalo boats, or buffalo skins. (Mo- 
 tion.) 
 
 2103 The original edition of Pike’s explorations is entitled as fol- 
 
 lows. “An account of expeditions to the sources of the Missis- 
 sippi and through the western parts of Louisiana, to the sources of the 
 Arkansas, Kansas, La Platte and Pere Juan rivers, performed by the 
 order of the Government of the United States * * * by Major 
 
 Z. M. Pike,” published at Philadelphia by C. and A. Conrad and 
 Company in 1810, John Binns, printer. 
 
 I have also examined the publication of a book called “ The His- 
 tory and Geography of the Mississippi Valley,” by Timothy Flint, 
 published at Cincinnati and Boston in 1833. At page 279 the au- 
 thor says : 
 
 2104 “The principal river of this Territory (Arkansas), whence 
 it derives its name, and the next largest tributary of the 
 
 Mississippi after the Missouri, is the Arkansas. The extent of this 
 mighty stream is about 2,000 miles. In summer it pours a broad 
 and deep stream from the mountains upon the arid, bare and sandy 
 plains. The sand and the dry surrounding atmosphere so drink up 
 the water, that in the dry season it may be crossed many hundred 
 miles below the mountains, without wading as high as the knees.” 
 
 I have also examined the work of Francis Parkraan, called “ The 
 Oregon Trail.” The edition I have here is that of 1892, published 
 by Little, Brown & Co., at Boston, and illustrated by Frederick 
 Remington. Parkman crossed the plains in 1846. and on coming 
 down the Arkansas river he describes the general features of that 
 river on page 349 at a point about three days’ travel below Bent’s 
 fort, which would bring it close to Lamar, Colorado, as follows: 
 
 “ The Arkansas at this point, and for several hundred miles 
 below, is in August nothing but a broad bed over which glide a few 
 scanty threads of water, now and then extending into wide shallows. 
 At several places, during the autumn, the water sinks into the sand 
 and disappears altogether. At this season, were it not for the nu- 
 merous quicksands, the river might be forded almost anywhere 
 without difficulty, though its channel is often a quarter of a mile 
 
636 
 
 THE STATE OF KANSAS VS. 
 
 wide. Our horses jumped down the bank, and wading through the 
 water, or galloping freely over the hard sand beds, soon reached the 
 other side.” 
 
 2105 On page 370 of the same volume he states as follows : 
 
 “ Our tent was within a rod of the river, if the broad sand 
 beds, with a scanty stream of water coursing here and there along 
 their surface, deserve to be dignified with the name of river. The 
 vast flat plains on either side were almost on a level with the sand 
 beds, and they were bounded in the distance by low, monotonous 
 hills, parallel to the course of the stream. All was one expanse of 
 grass; there was no wood in view, except some trees and stunted 
 bushes upon two islands which rose from the wet sands of the 
 river.” 
 
 I have also examined the writings of Louis H. Garrard, and a 
 book entitled “ Wah-to-yah and the Taos Trail,” published in Cin- 
 cinnati in 1S50. Gar-ard was through here, apparently, in October 
 1846. On page 17 he states as follows : — 
 
 2106 “ We reached the Grand Arkansas for noon camp; here 
 
 quite broad, just above Cow creek,— * * * with two 
 
 feet of water, sandy bottom and high sand buttes on either bank, as 
 bare and cheerless as any misanthrope could wish. On the 13th 
 Oct., we arrived at 1 Pawnee rock.’ * * * 
 
 “ We awoke on the morning of the 16th, with a norther penetrat- 
 ing our blankets. The river Arkansas, almost dry, and on whose 
 north bank we were encamped, was covered with floating particles 
 of thin ice. On the 23d we came to the ‘ Cimarron ’ crossing of the 
 Arkansas river. 
 
 “ The river at the crossing was wide and but a few inches in depth , 
 and a good ford. On October 31st we crossed ‘ Big Sand creek,’ a 
 large bed of sand one hundred yards in width, covered with water 
 during very rainy seasons, but then dry. The Indians camped upon 
 it a half day’s journey from its mouth, where there is much water. 
 Below that point the sand absorbs it. Our teams had to be coupled 
 to get the wagons through the sinking mouth.” 
 
 The Cow creek referred to is near Hutchinson, Kansas, and 
 Pawnee rock is near Larned, Kansas. The Cimarron crossing was 
 the crossing of the Santa Fe trail, the branch that passed southward 
 directly to Santa Fe instead of coming up the river. It is about 20 
 miles above Dodge City, Kansas, as described by Captain Chit- 
 tenden. 
 
 2107 The “ Big Sand ” creek referred to is evidently the “ Big 
 Sandy ” creek as we now call it. 
 
 I have examined the report of First Lieutenant Beckwith, of the 
 Third Artillery, U. S. Army, to the Secretary of War. He was con- 
 nected with the Pacific railroad explorations. These were 
 
 2108 issued in three volumes in Washington in 1855. On July 
 16, 1853, he describes the river near what was then Fort At- 
 kinson. On page 21 he states as follows : 
 
 “ The river is unusually high, being from one hundred and fifty 
 
THE STATE OP COLORADO ET AL. 
 
 637 
 
 to 200 yards wide; and the Indians in crossing it are occasionally 
 seen swimming ; while two years ago at this season, I am told by 
 the officers of the army who were then there, that it was necessary 
 to dig in the bed of the river for water to drink. This sinking of 
 the stream during low stages of water is not peculiar to the Ar- 
 kansas, as is well known, and it is believed the water can always be 
 found in abundance by digging in the bed of the stream.” 
 
 I have examined the volume of Edward Everett Hale entitled 
 “ Kansas and Nebraska,” published at Boston by Phillips, Sampson, 
 & Co., in 1854. On pages 112 and 113 of the copy which is in the 
 Morgan collection in the capitol building at Denver, he states as 
 follows : 
 
 2109 “ The lower part of the valley of the Arkansas is, as is well 
 known, a rich and fertile country. That part of its valley, 
 
 however, which lies in Kansas, is not well-wooded, though fertile 
 farms have been established in the immediate vicinity of the river, 
 it does not appear to be in general a promising agricultural region. 
 In the neighborhood of the Pueblo tall woods line the river with 
 green meadows on either side. The crops raised there are abund- 
 ant. At Bent’s fort there is but little timber. Timber sometimes 
 appears in small sections ; but in general for several hundred miles 
 the river is most of the year a broad sand bed, over which a few 
 threads of water glide along, occasionally expanding into wide shal- 
 lows. In the autumn the water sometimes sinks into the sands and 
 disappears altogether. At the ‘ Big timbers,’ about thirty-five miles 
 below Bent’s fort, the river widens, and the banks on each side fall 
 towards it in gentle slopes. The ‘ timber ’ is a thinly scattered 
 growth of large cottonwoods, not more than three-fourths of a mile 
 wide and three or four miles long. ‘ The bed of the river,’ says Col. 
 Emory, ‘ is seldom more than 150 yards wide, and, but for the quick- 
 sands, is everywhere fordable.’ ” 
 
 On page 114 he says: 
 
 “ The narrow strip which I have described as the bottom lands 
 of the Arkansas, varying half a mile to two or three miles wide, con- 
 tains a luxuriant growth of grasses, which by the judicious selection 
 and distribution of the camps sustained all the animals of the Army 
 of the West whilst on the river.” 
 
 2110 I have examined the work of W. W. Davis, late United 
 States attorney, entitled “El Gringo; or New Mexico and 
 Her People,” published in New York by Harper & Brothers 
 
 2111 in 1857. He evidently crossed the plains in 1853, and in 
 speaking of the Arkansas river at old Fort Atkinson, which 
 
 must have been close to where Fort Dodge was afterwards located, 
 about 70 miles west of Pawnee Rock, on page 32, referring to Decem- 
 ber, 1853, he says : 
 
 “ We did not leave camp until ten o’clock the next day, and then 
 continued our journey up the east bank of the Arkansas. The river 
 here is not more than three hundred yards wide, with low banks, 
 and filled with numerous beds of sand. The water is very shallow, 
 
638 
 
 THE STATE OF KANSAS VS. 
 
 clear, and pleasant to the taste, but in regard to navigation, there is 
 no hope of its ever being able to bear upon its bosom a larger craft 
 than an Indian canoe.” 
 
 * * * * * * * 
 
 “We passed old Fort Atkinson, now in ruins, and halted a few 
 miles beyond to dine.” 
 
 2112 I have also examined a work by Lieutenant Colonel 
 Richard Irving Dodge entitled “ Plains of the Great West and 
 
 Their Inhabitants,” a description of the plains, game, Indians, etc., of 
 the great North American desert, published at New York in 1877 by 
 G. T. Putnam’s Sons. On page 22 he describes the peculiarities of 
 the Arkansas and of the rivers of this type in the West. He has 
 been speaking of the Arkansas, the Canadian, the Cimarron, etc. 
 On this page he says : 
 
 “One of the most striking peculiarities of these rivers is that they 
 rise downward. In April the Arkansas at Fort Dodge is a sandy 
 bed, a fourth of a mile in width, with possibly an average of three 
 or four inches of water. In June when the mountains send forth 
 their flood of melted snow, the river swells, the current increases in 
 power, and washes out long channels in the sandy bed. When the 
 banks show a rise of two feet, the water has cut channels in the sand 
 five or six feet deep, and covering probably a full third of the dis- 
 tance from bank to bank. At these times the current may be said 
 to be a huge wave of sand, surging, rolling, turning and shifting with 
 incessant activity. Where there is six feet of water in the morning, 
 there may by noon be a bar with but an inch. By night the bar 
 may be gone and a deep channel in its place. These channels are 
 from ten to thirty feet wide, with generally perpendicular sides. 
 Some force will set a current in a particular direction across a bar. 
 In a few minutes a channel from three to six feet is cut, through 
 which the water pours as in a mill race.” 
 
 2113 And on page 28 of the same volume: 
 
 “ As the gorges wdden the timber grows more and more 
 scarce, and by the time the stream arrives at the third plain, there 
 is scarcely a tree or even a shrub to be found on its banks. The 
 Platte, the Arkansas, and the Cimarron, filter their waters for hun- 
 dreds of miles through the sands of their shallow beds, without a 
 tree to give life and variety to the scene.” 
 
 And on page 34, same work : 
 
 “ The south bank of the Arkansas is bounded by these hills (that 
 is, sand hills) for more than three hundred miles. The white sand 
 bed of the river itself is in many places perfect^ dr} 7 for a month 
 or more of each year. The prevailing winds, during the summer 
 and fall — the dry season — are from the south-west; yet, however 
 much the form and position of the sand-hills on the south side of 
 the river may change, there is scarcely a particle of sand to be found 
 on the north bank, nor a single sand-dune formed outside of what 
 can readily be distinguished as the old limits or boundaries of the 
 
THE STATIC OF COLORADO ET AL. 
 
 639 
 
 sand-stream. Just opposite Fort Dodge this stream narrows in one 
 place to a few yards.” 
 
 Colonel Dodge is describing what he terms the “ sand 
 
 2114 stream,” which refers to the sand dunes. He says on page 
 35: 
 
 “ Twenty-five miles below Fort Dodge the Arkansas bends to the 
 northeast; the sand-stream attempts to follow, but, apparently un- 
 able to turn so sharply, compromises the matter by keeping near the 
 river with the northern edge, while the south edge stretches in 
 nearly a straight line to the east in continuation of its former course. 
 The consequence is, that the sand-stream becomes nearly forty miles 
 wide, and so extremely difficult to cross with loaded waggons, that 
 buffalo-hunters, and other people of that section, prefer to turn it 
 by the longer road, via Fort Dodge.” 
 
 I have examined some of the papers of Kansas and have before 
 me a copy of the “ Ford County Globe,” published at Dodge City, 
 Kansas, July 22, 1879. This publication is in the library of the 
 State Historical Society at Topeka, Kansas. It comments on the 
 Arkansas river in an article headed “ High and Low Tides,” and 
 states : 
 
 2115 “ The river presented a series of unusually interesting phe- 
 nomena during the present week. First it suddenly dried up 
 
 and remained so for some 24 hours, when lo ! it as suddenly assumed 
 its normal condition. Again it dried up, and at the moment we pen 
 this, it is to be found in that condition. Thousands of fish were 
 caught in nets improvised for the occasion, which had become laud 
 locked in little pools on the bars, and thousands died in the intense 
 heat engendered in their limited quarters.” 
 
 I have examined some of the writings of B. B. Smythe in a paper 
 called “ The Age of Kansas,” in the “ Transactions of the Kansas 
 Academy of Science,” volume IX, 1883-4. On page 130, it states : 
 
 “In winter, when north winds prevail, the Arkansas is dry, and 
 the wind blows considerable sand out of the bed of the river and 
 makes ranges of sand-hills all along the^south of the river. In sum- 
 mer, when the prevailing winds are south, the river is filled with 
 water and no sand is blown out. From Hutchinson to Arkansas 
 City, over which course the river runs nearly south and is seldom 
 dry, there are no sand-hills ” 
 
 I have examined the report of the United States Secretary of the 
 Interior. It is a report made in compliance with a resolu- 
 
 2116 tion of the United States Senate in 1889. The report is in 
 “Senate and Executive Documents,” and is Senate executive 
 
 document 120, volume III, 50th Congress, second session. The 
 resolution in answer to which this report was made directed the 
 Secretary of the Interior to inquire and report to the Senate at its 
 next session the extent to which the diversion of the waters of the 
 Platte and the Arkansas and their tributaries in Colorado for irri- 
 gation and other purposes affected the flow, and especially in the 
 
640 
 
 THE STATE OF KANSAS VS. 
 
 growing season, etc., and whether in his opinion the title conveyed 
 by the Government to lands fronting oil said streams covered the 
 privilege of irrigation. The report is made by the Secretary of the 
 Interior, and it was prepared by J. W. Powell, who was chief of the 
 Geological Survey. It enters into a description of the rivers, and on 
 page 5, in his report to the Senate, he states in part as follows: 
 
 2117 “ The waters of the Arkansas cannot be taken out within 
 the boundaries of the State of Kansas and stored in reser- 
 voirs, from the fact that they contain so much silt that the reser- 
 voirs would be speedily obliterated. The flow of waters in the irri- 
 gating season is already provided for. All additional irrigation 
 from these waters would be so small that all State interests may be 
 neglected.” 
 
 Then further along, in speaking of evaporation : 
 
 “ The prospects for irrigation in western Kansas depends on the 
 storage of water in Colorado.” 
 
 And further on : 
 
 “ But experience in California, in Utah, in Colorado, and on the 
 Gila in Arizona, abundantly exhibits the fact that the waters used 
 in irrigation are but partially evaporated, and that a very large 
 quantity finds its way again to the streams. It is thus that the facts 
 of experience have modified preconceived hypotheses.” 
 
 And on page 6 as follows : 
 
 “ It must be remembered that the upper Arkansas, the North 
 Platte and the South Platte are not navigable streams * * * 
 They are thin sheets of mud tumbling down a highly-inclined 
 plane, so that the interests of navigation are in no way affected by 
 the use of these streams for agriculture. * * * From the above 
 
 statement it will appear that the question of the use of the Platte 
 rivers and the Arkansas is one affecting agriculture only, and that 
 the amount of irrigable lands redeemed in Nebraska and Kansas by 
 the waters of the Platte and Arkansas depends upon the amount of 
 water stored in Colorado and Wyoming.” 
 
 A little earlier in his report, on page 2, he states: 
 
 2118 “ The Platte and the Arkansas have their sources in the 
 mountains of Colorado and Wyoming, but after passing the 
 
 Colorado and Wyoming lines they receive great additions to their 
 volumes from the storm and streams of the lower country ; so that 
 but a small portion of the water which these rivers discharge * * * 
 comes from the mountain regions.” 
 
 In 1819 was the expedition of Major S. H. Long, after whom Long’s 
 peak is named. He went up the Platte, struck the Arkansas river 
 near what is now Canon City, Colorado, and thence passed down 
 the river, reaching Great Bend, Kansas, on August 10, 1820. He 
 has several references to the river in his report, the title of which 
 is “ Account of An Expedition from Pittsburg to the Rocky Moun- 
 tains, Performed in 1819 and 1820, by Order of Honorable J. C. 
 Calhoun, Secretary of War.” This report is compiled by Edwin 
 
THE STATE OE COLORADO ET AL. 
 
 641 
 
 James, botanist and geologist of the expedition, published in 
 
 2119 Philadelphia by H. C. Carey and I. Lea in 1823. On page 
 50 of volume II, July 18, 1820, at a point apparently close to 
 
 the present Canon City, he stated : 
 
 “ The Arkansas, from the mountains to the place of our encamp- 
 ment, has an average breadth of about sixty yards ; it is from three- 
 to five feet deep, and the current rapid. At the mountains the 
 water was transparent and pure, but soon after entering the plains it 
 becomes turbid and brackish.” 
 
 On page 66-7, written on the 23d of the same month, at a point 
 apparently near the mouth of the Purgatoire he states: 
 
 “ The Arkansa, between this point and the mountains, has a rapid 
 current whose velocity, probably, varies from four to six miles per 
 hour. It may be forded at many places, in a moderate stage of 
 water. The average breadth of the river is from sixty to seventy- 
 five yards. At many places, however, it is much enlarged, includ- 
 ing numerous islands. It pursues a remarkable serpentine course 
 within its valley, forming a succession of points on both sides of the 
 river, which, together with the islands, are usually covered with 
 cottonwood. The bed of river is gravel, or composed of water- 
 worn stones, which diminish in size as you recede from the moun- 
 tains.” 
 
 2120 Then on page 258, which seems to have been on Septem- 
 ber 9th of the same year, he comments on the general char- 
 acter of the Arkansas as follows: 
 
 “ The Arkansa, below the Great Bend, becomes more serpentine 
 than it is above, and very much obstructed by sand-bars and 
 islands, either naked or clothed with a recent vegetation ; they are 
 but little elevated above the surface of the water, and are covered, 
 to some depth, during the prevalence of floods in the river. 
 
 And a little later on, on the same page : 
 
 “ The current of the Arkansa is much less rapid than that of the 
 Platte, but the character of those two rivers in a considerable degree 
 corresponds in their widely spreading waters of but little depth, run- 
 ning over a bed of yielding sand.” 
 
 This work may be found in the Congressional Library at Wash- 
 ington, together with rare maps. 
 
 I have also examined a record of the trip made by Jacob Fowler 
 in 1821 and 1822. He was apparently an early trapper and passed 
 up the river from Fort Smith, Arkansas, to what is now Pueblo, 
 Colorado. He started from Fort Smith in September, 1821, and 
 reached Great Bend on the 19th of October, almost exactly 15 years 
 later than Pike. His diary has been found and printed by 
 
 2121 Francis P. Harper of New York in 1898. The title is “The 
 Journal of Jacob Fowler, narrating an adventure from Arkan- 
 sas through the Indian Territory, Oklahoma, Kansas, Colorado, and 
 New Mexico, to the sources of the Bio Grande del Norte,” edited 
 with notes by Elliot Coues, who edited Pike. Fowler was apparently 
 not an educated man, but one of good observation. Commenting 
 
 41—7 
 
m 
 
 Title sTatk ok kAftkAs V§. 
 
 on the river between Hutchison and Great Bend in Kansas, tleai 1 
 the same place of Pike’s comment of 15 years before, on page 21 — 
 he has been speaking of the hills — he says : 
 
 “ the River — Which is from two to 400 yds Wide — With large 
 Sand bars and low Islands this is its general Caracter as fare as We 
 Have seen it.” 
 
 2122 And then later on he comments on the fact that there is no 
 timber on the banks of the river, none at all except on the 
 
 islands, which I think indicates that the fires, which were prevalent, 
 had kept down the timber except where protected by the water or 
 the sand bars. 
 
 2123 I have examined the work of Captain H. M. Chittendon of 
 the United States Army, entitled “ The History of the Ameri- 
 can Fur Trade of the Far West,” published by Francis P. Harper in 
 1902 in three volumes. He refers to the Arkansas river in the 
 course of his history in several places. On page 537 he is describing 
 the various points on the Santa Fe trail and in speaking of the 
 Arkansas river he says : 
 
 “ This stream which for all its length west of the 100th meridian 
 was the frontier between the United States and Spanish territories, 
 was one of great importance to the traders of this region. It was 
 not a navigable stream in this part of its course, unless the possi- 
 bilities of descending it in light craft in flood time entitles it to that 
 distinction. Its importance arose in part from the fact of its being 
 the national frontier and in part because the country about its head 
 waters was a rich trapping territory.” 
 
 2124 On page 775 of the same volume he speaks of the charac- 
 teristics of these streams of the plains and of the Arkansas 
 
 river under the heading “ Plains Rivers.” He describes what he 
 terms two characteristic streams of the arid region — the Arkansas 
 and its tributaries and the Rio Grande — as follows: 
 
 “ The most striking characteristics of the plains streams are their 
 great length and comparatively small drainage area. The Canadian 
 branch of the Arkansas, for example, through the five hundred miles 
 of its course, has a water shed which averages scarcely fifty miles 
 wide. The same is true of the North Canadian and the Cimarron. 
 Even in a humid climate these streams would be small in compari- 
 son to their length. In a region where rain rarely falls most of 
 them are totally dry for considerable distances and long periods. 
 The water which flows from the mountains is not sufficient to over- 
 come the seepage and evaporation on the plains in the dry season, 
 and even the main Arkansas is a very small stream in its course 
 through western Kansas and eastern Colorado. The Arkansas is 
 the best type of the plains streams, as well as the most important in 
 that section of the countrv. It was often spoken of in early times 
 as ‘ The River of the Plains.’ Only that portion which lies above 
 the mouth of the Canadian is of interest in connection with the fur 
 trade. Below this point the river enters the humid belt and takes 
 its character almost entirely from the local drainage. In fact if the 
 
THE STATK OE COLORADO ET AL. 643 
 
 Upper two-thirds of its course were wiped out of existence, the differ- 
 ence could scarcely be noted at the mouth of the stream.” 
 
 2125 In the letter from the Secretary of the Interior heretofore 
 referred to, transmitting the response to the Senate resolution 
 
 of August 29, 1888, “ The effect upon certain rivers in Colorado of 
 
 the diversion of water for irrigation,” on page 3 of this document the 
 Secretary of the Interior states, in speaking of the South Platte and 
 the Arkansas, as follows : 
 
 2126 “ * * * whether the agricultural industries along the 
 
 Platte and its tributaries in Colorado should be destroyed in 
 
 order that new industries in Nebraska may be created, is a question 
 that everyone can easily answer for himself. But there is a fur- 
 ther condition worthy of consideration. If the waters of the South 
 Platte now used in Colorado were used in Nebraska, the area brought 
 under cultivation in the last State would be very much smaller than 
 the area now under cultivation in Colorado by the use of the same 
 waters. This fact results from well-known physical conditions. In 
 that arid region the rain is condensed in the mountains ; compara- 
 tively little falls on the arid plains, not enough to produce perennial 
 streams. When the waters debouch from the mountains into the 
 plains their channels are radically changed ; they are narrow, deep 
 and clear. Where they run across the plains they are wide and 
 shallow, and their waters are loaded with mud. The muddy waters 
 are spread out below in wide channels of sand. A stream may be 
 several hundred yards wide and only a few inches deep. The waters 
 permeate these sands, and a large portion is evaporated ; so that a 
 stream steadily diminishes in volume from the mountains across 
 the arid plains until a more humid region is reached, where it again 
 increases in size. It is for this reason that the waters of the South 
 Platte. will irrigate a much larger area in Colorado near the mount- 
 ains than in Colorado near the Nebraska line; and the area which 
 they will irrigate in Nebraska is still smaller. It is probable that 
 three acres can be irrigated near to the mountains of Colorado where 
 only one acre can be irrigated in Nebraska.” 
 
 The same conditions referred to in this quotation as existing on 
 the Platte and the conclusions drawn from them would be justified 
 in reference to the Arkansas river. Here is another statement 
 from page 4 of the same volume : 
 
 2127 “ But when the mountain waters of the non-irrigating sea- 
 son are stored in this manner and poured upon the lands of 
 
 Colorado and used for agricultural purposes, a part of this stored 
 water will be evaporated to the heavens, but another part — and a 
 large part — will be returned to the Platte, where it can be recovered 
 and again carried to the irrigable lands farther down the stream in 
 eastern Colorado and western Nebraska.” 
 
 which would equally well apply to the Arkansas river, for the two 
 streams are of practically the same character, as Colonel Dodge and 
 others have said. 
 
 The citations which I have given of historical references to the 
 
644 
 
 tfttE STATE OF KANSAS Vfc. 
 
 river, and the passages quoted, were chosen because they bore most 
 directly on the peculiarities of this stream and especially on the 
 peculiarity of the dry stretch extending through eastern Colorado 
 and western Kansas, and included the principal early references 
 that I came across relating to the width and quantity of the water 
 as mentioned by early travellers prior to irrigation and show- 
 
 2129 ing that it was essentially the same as at the present day. 
 From the records of the river kept at Canon City for about 16 
 
 years I can state that the average flow of the river at that point is 
 about 750 cubic feet per second of time, and this includes 
 
 2130 high water, low water and everything. Now, from Canon 
 City practically to the State line the original condition of the 
 
 river has been modified by the water which is taken out on the adja- 
 cent plains, so that for that portion of the river from Canon City to 
 Lamar the river gains by springs or seepage which comes from irri- 
 gation. It is therefore not losing water to any great extent at pres- 
 ent through this section, although there is every reason to think 
 that were it not for irrigation the river would be losing throughout 
 that distance. From Coolidge, near the Kansas-Colorado State line, 
 eastward, the river loses nearly constantly. Some of our measure- 
 ments have shown that the river loses from Lamar to the State 
 line, and they have generally shown a loss under present 
 conditions from Pueblo for a distance east of about 30 miles. 
 But considering for a moment that the water which passes 
 Canon City should reach either Lamar or Coolidge, then the 
 loss to be considered would be and is at present from Coolidge east. 
 An estimate of that loss at this time would be provisional. We 
 have measured a number of different floods. I have measured the 
 flood of 1902. At Dodge City, Kansas, I found the flood was 
 
 2131 5,701 cubic feet per second of time. At Hutchinson, Kansas, 
 it had decreased to 2500 cubic feet per second of time; at 
 
 Wichita to 2,010, and at Arkansas Cit} 7 to 1,193 cubic feet per sec- 
 ond of time. In the four floods of May and June of this year which 
 were measured we found the loss from Coolidge to Garden City was 
 remarkably uniform. They were not interfered with by rains. In 
 one flood the amount of water which passed Coolidge was decreased 
 by the time it reached Garden City so that 59 per cent, was all that 
 was left; 41 percent, had been lost. In another flood 49 per cent, 
 was lost. In the other two there were respectively 45 and 47 per 
 cent. lost. The distance between Coolidge and Garden City where 
 this loss occurred was about 60 miles. In the stretch between Gar- 
 den City and Dodge City two of the floods gained and two 
 
 2132 lost. This was because of interference from storms, the effect 
 of which is shown on Defendant Colorado’s Exhibits 4, 5 and 
 
 6. From this data, which is not all complete, I should therefore 
 make the provisional estimate that not over thirty per ceiit. of the 
 water which should pass Canon City or Lamar would reach to the 
 vicinity of Wichita, Kansas. This takes the river as it is, but does 
 not exclude or allow for tributaries that come in. In other words, 
 
THE STATE OF COLORADO ET AL. 
 
 645 
 
 if you had a certain amount of water at Lamar or Coolidge, not over 
 thirty per cent, of that would reach Wichita, even with the addition 
 of springs which might be along the course — the invisible sources — 
 but it does not include streams like the Walnut and Cow 
 
 2133 creek. They are excluded. If they were included of course 
 the stream might be more than thirty percent, of that above. 
 
 I do not mean to say by this that if you were to cut off all tributaries 
 of the river below Canon City and exhaust the water from the ground 
 and then turn loose the average flow of 760 cubic feet thirty per 
 cent., or necessarily any of it, would reach Wichita. (Objection.) 
 In saying that thirty per cent, of the amount passing Canon 
 City would reach Wichita, I allow for the advantages of con- 
 veyance which it would have by reason of other sources 
 
 2134 which would keep the stream in condition to carry it, and I 
 think this estimate of the amount which would reach 
 
 Wichita is a high one. I make it high purposely. Later, I want 
 to add to this the results of a comparison of measurements which 
 are being reduced and which would take a great deal of labor. In 
 making these estimates I have taken Canon City as the point where 
 we had definite measurements, and have allowed that whatever 
 water passed Canon City would arrive at the Colorado-Kansas line 
 undiminished, and the loss which I speak of would occur after the 
 river passes that line. (Objection.) In fixing this percentage of 
 loss I have been taking the stream as it is and not as it would be if 
 there were no tributaries or no water coming in from the soil. If 
 this latter condition existed the water that passes Canon City would 
 probably not get into Kansas at all. (Objection.) It is well known 
 that the loss in canals is large, even with a confined bed, and that a 
 head of water of considerable size is needed to earn' water through 
 a canal. This would be much more true in case of a sandy 
 river. The estimate of loss made by Major Powell in the quota- 
 tions heretofore given is even larger than that made by myself. 
 He has supposed or estimated that only one-third of the water would 
 reach from the mountains out to the Nebraska line. My statement 
 of the amount of water passing down the stream is a maximum 
 amount; and this fact that water is lost justifies the statement of 
 Major Powell that more land can be irrigated near the mountains 
 or source of a stream than farther out on the plains. Below Canon 
 City a considerable part of the country is under irrigation to 
 
 2135 the Colorado-Kansas line. Assuming that the average flow 
 of the river at Canon City is 750 cubic feet per second of time 
 
 and that only thirty per cent, of that amount of water would reach 
 Wichita, and assuming that the river at Wichita is 500 feet wide, 
 such amount of water would raise the river at Wichita not more 
 than 2 inches, and if the river were a thousand feet wide at Wichita, 
 as many witnesses said it formerly was, then this amount of water 
 would raise the stream at that point only about half as much, or 
 one inch. 
 
646 
 
 THE STATE OF KANSAS VS. 
 
 2136 Speaking of the character of the country drained by the 
 Arkansas river, I would say that the river leaves the mount- 
 ains at a little less than 6,000 feet elevation. Between the elevation 
 of about 7,000 and 11,500 feet, a large part of the drainage area was 
 originally forested. From 11,500 feet elevation to 14,000 feet, the 
 summit of the highest peaks, there was no forest, it being above 
 timber line. Within the limits between 7,000 and 11,500 feet, the 
 forest on the Arkansas river was partly evergreen, partly quaking 
 asp, and some of the mountain parks were free from timber. In the 
 water shed of this river there seems to have been a larger percent- 
 age of bare country than on the headwaters of the Platte. Hayden 
 attempted, in a map made from his survey of Colorado in the ’70’s, 
 to give the forested area, and he shows quite a large percentage of 
 mountain park country free from timber in those days. The amount 
 of timber has since decreased materially. Throughout the head- 
 waters of all of these streams the affect of the ax and of the 
 
 2137 fire is seen upon every hand. The mines have had the privi- 
 lege of cutting the timber for mining purposes and they have 
 
 swallowed up the forests to a great extent, but the fires have caused 
 even greater damage. In some places like Tennessee pass the fires 
 which raged there 20 or more years ago have left the country bare 
 and it has not recovered from it. I have made attempts to get the 
 amount of timber that is now present and have inquired of appa- 
 rently all available sources — through the forestry department, in- 
 vestigations under my own direction, and otherwise. The govern- 
 ments stated that they had no data by which they could answer the 
 question. Mr. Enos Mills has made trips through the mountain re- 
 gion for the past two winters on investigations in connection with 
 the experiment station and also with the engineer’s office, and I have 
 especially asked him to observe the forests and get an estimate as to 
 the percentage there might be remaining. I made similar inquiries 
 of Michelsen, forestry representative in this State. From the best 
 information I could obtain it would seem there is not 20 per cent, of 
 the original forests now remaining, and that which remains is 
 
 2138 largely the smaller timber. I have made some investiga- 
 tions for a number of years of the relation between the for- 
 ests and our run-off of water, and these have taken the line partly 
 of examining the preservative effect of the forests uponthesnow. I 
 have kept for a dozen years or more a self recording instrument at 
 the mouth of the Poudre river at its exit from the mountains that has 
 registered night and day the fluctuations of the water in that stream. 
 A study of those records has shown the close relation between the 
 forests and the melting snow in the behavior of the stream. I made 
 some investigations some years since, carrying them through several 
 
 }^ears. I have taken photographs or caused them to be taken 
 
 2139 of the snow in the mountain areas or the timbered areas. 
 We made special trips back into the remote mountains 
 
 for the purpose of getting that data. The result of these investiga- 
 tions was published in bulletin No. 55 of the experiment station of. 
 
THE STATE OF COLORADO KT AL. 
 
 647 
 
 Ft. Collins. Photographs were issued as cuts. Photographs from 
 the same spot looking into timber and looking into a region that 
 had been burned were printed. They were intended to be printed 
 opposite to each other, side by side, but through an error of the 
 printer the form was made up so that they do not come opposite. 
 Thus plate I and plate II of bulletin 55 are two pictures taken from 
 the same spot on the same day and hour, one looking into timber, 
 showing the snow that is preserved by the timber, and the other 
 looking into the barren region as free from snow as the country 
 below. Those were taken on June 21, 1899. There are other sets 
 through the same bulletin taken in the same manner. The other 
 diagrams in the bulletin shown show the diurnal change in the 
 stream, its diurnal fluctuation — the diurnal tide — of the water as it 
 rises, due to the increased melting during the daylight hours 
 
 2140 and the checking of the melting during the night. It was 
 most notic-able as regards the protective influence of the for- 
 ests, and the effect of a cloudy day, which was analogous to the effect 
 of forests. A rainy day in the mountains had the effect of decreas- 
 ing the stream instead of increasing it as was anticipated. That is, 
 an ordinary rainy day. Not an ordinary storm, but one that was 
 connected with cloudiness throughout the day and where a mod- 
 erate rain fell. The reason as developed is that the protection af- 
 forded by the clouds from the heat of the sun and the consequent 
 decrease in melting decreased the water supply from that source so 
 that the decrease was greater than the increase of water supply from 
 the rain. The forest has the same effect as the cloudy day. It is 
 noticed in going through the higher elevations that in the late 
 spring or early summer when the snow is found in places it is found 
 in the protection of the trees and not in the open. In July of this 
 year I noticed a case where the shadow of a log had fallen on a snow 
 
 bank and the snow there was perhaps three feet deep, just a 
 
 2141 ridge of snow, protected by the shadow. You will find that 
 the snow banks at that season at elevations of 10,000 feet 
 
 are entirely in the timber. Where the timber has burned off 
 or has been destroyed in other ways there is no snow ; it is 
 absolutely dry and generally hard, and hence the protection 
 of the forest has a very great effect, I think, upon our 
 water supply and upon its character; that is, as the for- 
 est diminishes its protective influence is gone and the snow 
 is melted more rapidly. It fails to enter the ground and the water 
 comes down in violent rushes and the springs are dry and the tend- 
 ency is for the stream to come in floods and torrents instead of the 
 perennial and constant flow. That I think is the conclusion that 
 almost every one who has watched the forests and their relations to our 
 streams has come to. The thickets which formerly were along the 
 channels of the stream down to a low elevation maintained the snow 
 and ice until late in the spring and the streams which the earlier 
 settlers found were running late in the spring. They now have 
 very little in them, even in the midst of winter, so that streams like 
 
648 
 
 THE STATE OF KANSAS VS. 
 
 the Arkansas liave as a rule very little snow along their 
 
 2142 channels until we get clear to their head waters. Even on 
 the main stream itself along the region passed by the railroad 
 
 it is very frequently the case that there is no snow at the elevation 
 of the railroad, about ten thousand feet, though it can be seen oil 
 higher elevations almost any time. The forest protects the snow 
 from the wind. In one respect this is as important as from the sun. 
 The protection from the sun prevents the snow from melting. The 
 protection from the wind protects it from evaporation. I have 
 carried on measurements on evaporation for fifteen or sixteen years, 
 including the winter, and we find that the evaporation from the 
 surface of solid ice runs from one inch to one and a half inches per 
 month. The evaporation from snow T is very much greater because 
 the wind passes into the interstices of the particles of snow 
 
 2143 and attacks them on all sides. How much greater its evapo- 
 ration is I am not prepared to give in definite measurements. 
 
 Now, where winds have a chance to strike the snow it disappears 
 very rapidly. The old settlers say the wind simply wears out the 
 snow. That is another way of expressing the fact that the wind 
 evaporates it. Hence the protective influence of the forest in pre- 
 venting the excessive wind is a very important factor in preserving 
 our water supply. The protection from the sun would only change 
 the character of the flow, that is, as to whether there were floods or 
 not. The excess of wind would mean an actual loss of water supply. 
 The snow would evaporate and then would not appear in the 
 streams at all. We have had a number of marked cases where snow 
 has been a number of inches deep at one time and has disappeared 
 within a short period without even wetting the ground, purely 
 by evaporation. Naturally, with the absence of timber, this 
 effect has very much increased. We have a corresponding effect 
 from an analagous cause on the lower foot hills and on the plains 
 that has increased during the past few years since settlement has 
 become greater and since the grazing of the plains and the 
 
 2144 foot hills by stock. It is now very rarely that snow lies upon 
 the ground for any length of time in this section. The grass 
 
 that formerly either stood with its stocks up in the air and thus 
 formed small wind breaks — small individually — would as a whole 
 cause a great break of the wind and really add quite an influence 
 in protecting the snow from the blowing of the wind ; also the matty 
 covering of grass which fell down upon the plains and foot hills and 
 elsewhere, even where unprotected by forests, was an insulation as 
 well from the heat of the ground as the heat of the sun and force 
 of the wind. The heat of the ground then did not serve to melt 
 the snow as it does when falling directly upon the ground, which is 
 the case at present, because most of our plains and the lower moun- 
 tains have very largely been denuded of that covering of grass which 
 was formerly a protection in this way and also a protection from the 
 erosive effects of storms. 
 
 Both the Fountain and the Purgatoire were originally very nar- 
 
THE STATE OF COLORADO ET AL. 
 
 649 
 
 row streams ; now they are hundreds of feet wide. The Chico 
 
 2145 has cut a deep channel into the plains. A great many little 
 channels east of Pueblo that are now ten, fifteen or twenty 
 
 feet deep, with vertical sides, cutting up the plains into a great many 
 sections difficult to cross, were not of that character *in the early 
 times. They were not channels at all, simply depressions. These 
 are some of the changes that have taken place due to the denuda- 
 tion of the forests and the grazing of the grasses, both of which were 
 protective in the manner described. These things have all had an 
 effect in modifying the flow of the Arkansas river. In the forest areas 
 particularly the cutting of the forest has not only changed the char- 
 acter but has decreased the flow because of the wind effect — that is, 
 by permitting the snow to evaporate. On the plains I am not so 
 sure as to the sum of all these influences — that is, as to whether 
 it has so decreased the total quantity — but it certainly has 
 changed the character of the water supply of the plains. 
 
 2146 In the mountain areas these changes have decreased the 
 average flow of the stream and also the minimum flow ; 
 
 that is, they have decreased the maximum and correspondingly 
 decreased the minimum. On the plains the tendency is to 
 increase the maximum and to decrease the minimum — to make 
 the streams come down in floods when they had come down with a 
 steadier flow, and not in constant running streams. There seems 
 to be ground to think that the floods are more severe than formerly. 
 The late Trinidad flood is a marked instance. The Eden flood, 
 which caused the wreck on the Denver and Rio Grande, was also 
 in one of the obscure channels that one would scarcely think of. 
 Originally the bridge was a few feet wide. These channels 
 
 2148 keep constantly increasing in size. There were floods in 
 former times, and sometimes great floods, yet I think we have 
 
 reason to notice their increasing violence as a consequence of the 
 de-grassing of the plains. 
 
 Aside from what has been said the soil is very much more ab- 
 sorbent in the forest than it is outside. There you will find a cover- 
 ing of spongy earth or decayed needles — humus — that may be sev- 
 eral feet deep. It is sponge-like. In some places it becomes muck 
 and pe-te after the forest has been removed. The water which falls 
 on such soil is not only prevented from running off in arroyos and 
 rivulets by the physical obstacles, such as needles, but the 
 
 2149 ground is so absorbent that it sinks in. Where the forest has 
 been burned off the fire penetrates this surface soil, which is 
 
 really vegetable matter. It burns it into ashes and practically de- 
 stroys it down to the solid soil beneath. This leaves it hard and 
 non-absorbent and the water runs off. The springs dry up because 
 their sources are cut off; and hence, as is a common experience, a 
 common fact of observation throughout the mountains, the regions 
 free from timber or where the timber is burned off are dry. It is a 
 common custom in road building to cut out the timber along the 
 
650 
 
 THE STATE OF KANSAS VS. 
 
 roads so as to let the air and sun have access in order that 
 
 2150 the ground will dry up and harden. I knew from my own 
 observation that the timber in the mountains was being 
 rapidly destroyed, but really hoped that in the portion I was 
 
 2151 not familiar with this was not true, but on investigation we 
 found the same conditions. 
 
 Referring to Bulletin 55, plates I and II are companion plates, 
 taken from the same point on the same day, within a few minutes 
 of each other. Plates IV, V and VI are companion plates and over- 
 lap each other, forming one continuous picture or panorama. Plate 
 X also goes with plates I and II. It is right in the timber, about 
 two hundred yards from where plates I and II were taken. 
 
 (Defendant Colorado’s Exhibits 9, 10, 11, 12, 13,14, 15, 16 and 17 
 offered in evidence.) 
 
 2153 Two of these photographs were taken from the same place 
 on the same day, one looking into dead timber and one into 
 
 green, and a third photograph, not at the same place but four miles 
 away, with the same exposure, practically, and the same general 
 conditions, except it is in the timber and shows deep snow while the 
 others are bare. 
 
 (Defendant Colorado’s Exhibits 18 and 19 offered in evidence.) 
 
 These two photographs were taken in the mountains at an eleva- 
 tion of about 9,500 feet, on Jenny creek, which is on the Platte, one 
 looking into green timber and one into dead timber. They 
 
 2154 were taken at the same time and place, in about the month 
 of May. 
 
 (Defendant Colorado’s Exhibit 20 offered in evidence.) 
 
 This is a photograph showing the region of the Tennessee pass at 
 the headwaters of the Arkansas river, which shows the bare condi- 
 tion of the country, with the stumps of the original forest. 
 
 2155 This condition as shown in Exhibit 20 extends over quite a 
 large area. 
 
 (Defendant Colorado’s Exhibit 21 offered in evidence.) 
 
 That is nearly the same region as shown by Exhibit 20, but it 
 takes in a larger extent so that the individual stumps do not 
 show r in this picture as they do in Exhibit 20. The condition as 
 shown in Exhibits 20 and 21 exists upon the headwaters of many 
 tributaries of the Arkansas river, in effect at least, not always in 
 character. These two exhibits show a good deal of timber that has 
 been removed bv cutting. In other places a large amount has been 
 destroyed by fire. The result, however, on the protection of 
 
 2156 the snow is largely the same. With the forests on the head 
 waters of the Arkansas river destroyed as they are, even if the 
 
 other conditions remain the same, as to precipitation, etc., the flow 
 of the river would not be the same as it formerly was, either in 
 
THE STATE OF COLORADO ET AL. 
 
 651 
 
 character or in time. As conditions now are, the maximum 
 
 2157 tends to increase, if anything, and the minimum to decrease; 
 also the average flow has decreased. As to time, so far 
 
 as the river is fed by melting snows, the high water tends to 
 come earlier in the spring instead of late as it formerly did. The 
 amount of time which the present melting comes earlier than formerly 
 I am scarcely able to say in a period of days or weeks. We know that 
 the snows which used to lie at low elevations are not there at all, 
 and the tendency toward an earlier flood period is evident and 
 marked. I think it would be several weeks earlier, taking one 
 year with another, but the flood period which we notice is a 
 combination of the melting snow and the rains. If we could ex- 
 clude the effect of the spring rains on the melting snow the portion 
 due to the earlier snow would be still earlier than our record seems 
 to indicate, judging by the high water in the river. The flood that 
 comes from the melting snows under present conditions does not 
 last as long as formerly when the forests were in their original con- 
 dition. No large part of the flow of the Arkansas river in eastern 
 Colorado is supplied by the melting snows. 
 
 2158 Yesterday I mentioned, in speaking of these transitional 
 streams, that a small part of their water shed was in the 
 
 mountains. Thus, with the St. Charles, whose total water shed is 
 487 square miles, we have 72 square miles above 8,000 feet, which 
 is practically what may be termed the mountains. With the 
 Apishipa, out of 1,116 square miles there are 68 square miles above 
 8,000 feet. With the Purgatoire, out of 3,292 square miles, 287 are 
 above 8,000 feet. With the Huerfano, out of 1,867 square miles, 541 
 are above 8,000 feet. The rest may be properly termed as plains 
 area and is fed almost entirely by the rains, and of course a portion 
 of that in the mountains is fed by rains also. On the Arkansas 
 river proper above Salida, including all the water shed, there is 
 1,222 square miles. That includes some of the water shed that is 
 but little over 7,000 feet, on which snow does not lie. Below 
 
 2159 8,000 feet in Colorado the visible snow fall at any one time 
 is slight. The aggregate in the course of a year may be 
 
 considerable, but it comes usually in relatively small quantities 
 and melts very soon. It is not protected from the heat from the 
 ground, and hence it does not lie upon the ground for any length 
 of time. At Fort Collins, in northern Colorado, it runs about 
 fifty odd inches of snow a year, but one would scarcely believe 
 that, because it gives the impression there is scarcely any snow. 
 There is very little run-off from this snow fall below 8,000 feet ; it 
 melts soon, sinks into the ground and is evaporated. That 
 
 2160 amount of snow fall represents about one-tentli as much 
 precipitation in water ; in fact coming in small quantities 
 
 it is even less than that. A snow of two or three inches furnishes 
 practically no run-off; it evaporates, or sinks into the immediate 
 surface of the ground and then evaporates; and it is those small 
 storms that form nearly all of the snow fall in this region. There 
 
052 
 
 THE STATE OF KANSAS VS. 
 
 is practically no sleighing in the part of Colorado east of the Rocky 
 mountains. 1 doubt if any one raised around Fort Collins would 
 scarcely know a sleigh. We have had at an elevation of five thou- 
 sand feet one or two winters in the past sixteen years in which 
 we have had what might be termed sleighing. 
 
 2161 Again referring to the drainage area of the Arkansas river 
 in Colorado, I would state that a considerable part of that 
 
 area is drained into the river below most of the Colorado ditches. 
 For instance, the Purgatoire enters the river below nearly all of the 
 ditches, and it has a drainage of 3,300 square miles, more than the 
 drainage area above Canon City on the main river. It enters the 
 river below Las Animas and the head of the Fort Lyon canal ; and 
 below that there is Rule creek, with a drainage of 517 square miles; 
 Caddoa creek with 102 ; Limestone creek with 46 ; Mud creek with 
 64; Willow creek about the same and Clay creek with 230. 
 
 These last named streams all enter below the Purgatoire and 
 between there and the State line, as does the Big Sandy creek, with 
 a drainage of 2,134 square miles. There is also Wolf creek, 
 
 2162 with 132 square miles; Buffalo creek 170; Two Buttes, 817 ; 
 Wild Horse creek with 309, and Cheyenne creek with 350 
 
 square miles. 
 
 In response to your question asking me to state some of my 
 duties as State engineer, I will say that the office of State engineer 
 was originally created in this State as an administrative office, to 
 divide or supervise the distribution of water among different claim- 
 ants in the State. That was nearly twenty-five years ago. The 
 duties of the office have been extended and all the various duties 
 which the legislature has found it necessary to have performed by 
 somebody in relation to irrigation, irrigation distribution, investiga- 
 tion and the enforcement of various laws have been clustered about 
 that office. We have some supervision of the construction of roads, 
 the supervision of dams, reservoirs, etc., and the supervision of 
 water superintendents, water commissioners and head-gates, the 
 supervision of rating flumes and the measurement of water. 
 
 2163 So the duties of that kind are very large. The office has 
 general control of the administrative features connected with 
 
 the distribution of water among the citizens of the State, and it 
 is executive in enforcing certain laws. It is a recording office, 
 as being the place where the claims to water are filed. It is 
 a construction office as far as construction of these internal im- 
 provements is concerned. It is a technical office so far as 
 the supervision and construction of dams are concerned, and 
 other things of that character. The construction of dams re- 
 ferred to relates to those constructed by individuals. It does not nec- 
 essarily refer to construction by the State nor anything of that kind. 
 We are to see that they are safe and properly built. In the State 
 engineer’s office, which is now in my charge, are to be found more 
 records and more information concerning ditches, the use of water 
 
HiE STATIC OF COLORADO ET AL 
 
 Cg§ 
 
 and its distribution than in any other one place, perhaps, in 
 
 2164 the State. The water engineers and the irrigation division 
 engineers are all now under the direction of the State engineer 
 
 and report to him and are subject to his superior orders in case they 
 are given. 
 
 Speaking of the progress which has been made in the reclamation 
 by irrigation of lands lying along the Arkansas river and its tribu- 
 taries, I will state that there were ditches built on the Arkan- 
 
 2165 sas river by the first settlers. That would be almost a matter 
 of necessity where those settlers were more than trappers ; 
 
 and consequently there are ditches dating from some time in the 
 ’50’s, in the vicinity of Trinidad, and some earlier ditches on the 
 Arkansas river proper. Those ditches have increased in number 
 with the demand for water for irrigation. At present there are 
 ditches on the main Arkansas, on practically all of the mountain 
 tributaries, whether they are perennial or not, as upon those streams 
 that are described as transitional streams, and along the main Ar- 
 kansas practically to the Kansas-Colorado line. The earlier ditches 
 were very largely small ditches, from a double reason. It might be 
 perhaps largely from one reason — the economic one. The earlier 
 settlers had to put in ditches without accumulated capital. They 
 therefore had to putin ditches of such size as was within their means, 
 and that means meant generally their own physical powers. Conse- 
 quently they were ditches such as one or a few men could combine 
 together and build. They therefore were on portions of the river 
 where the ditches could be short, that is, in places where the fall of 
 the stream was rapid. They were also largely on small streams, 
 because the head works could be simple and therefore within their 
 power. Consequently the first stage of construction not only on the 
 Arkansas river but also on the other streams in the State was rep- 
 resented by the ditches located on the small tributaries. 
 
 2166 Then came the ditches of larger size that were built later, as 
 we had people here either themselves with more capital 
 
 or who had command of more capital, and in some cases 
 they were built by people who anticipated the needs of 
 the country, and who built ditches in corporation form. They were, 
 therefore, constructed on a larger scale as they developed and were 
 built to cover larger areas of country, and as the expense to these 
 builders was less important they could then take them from larger 
 streams. (Objection and motion.) Hence the larger ditches on the 
 Arkansas river were taken out subsequently to the ditches 
 
 2167 on the tributaries. This fact appears from the official records 
 in the office, where we have the dates of the construction of 
 
 ditches and their size and of the number of acres which the respect- 
 ive ditches irrigate, which show this division of types of ditches 
 very distinctly. These side streams like the Purgatoire, Grape 
 creek, the Fountain and others, show a great many of the earlier 
 ditches, short in length, irrigating small quantities of land and with 
 relatively few users from the individual ditch. On Grape creek my 
 
864 
 
 THE! state: Oft KANSAS VS. 
 
 recollection is that there are something like seven hundred ditches. 
 There are a great many on the Purgatoire. A great many of these 
 ditches on the smaller streams, like Grape creek, are only used by 
 one single ranchman, A great many of these small ditches are also 
 of the same type as the large ditches on the streams, or at least the 
 difference is one of magnitude and not of kind. Nearly all the 
 ditches, other than those supplying simply but one or two users, are 
 organized in the form of a corporation. They are stock companies, 
 but are what might be termed mutual companies. They are not 
 organized for profit. They are organized in that form as a means 
 of constructing the ditches and as a means of management. 
 
 2168 The people' who take water from them are interested in the 
 ditch to the extent of their stock, and their share of the water 
 
 is represented by the proportion their stock bears to the whole of 
 the stock in the ditch. There is in each ditch generally some rela- 
 tion fixed by custom giving the number of shares to eighty acres or 
 to one hundred and sixty acres. (Objection.) Now, some of those 
 ditches were built by companies and then the companies on selling 
 or disposing of part of the water sold or transferred the stock to the 
 water users, and in many cases those companies provided that when 
 a certain number or portion of shares are sold the management of 
 the ditch is transferred to the users of the ditch, so that many of 
 the companies have passed into mutual companies. In the 
 
 2169 State laws there is a difference made between the two com- 
 panies; that is, a company of this type that may be termed 
 
 a mutual company, not maintained for profit, is free from taxation, 
 as it is considered that the value of the ditch and the water rights 
 are included in the value of the real estate or land watered by the 
 ditch. Consequently nearly all the ditches which remain in the 
 form of a company separate from the owners of the land have gone 
 into the second type of ditches — mutual ditches — or are in a state 
 of transition. There are very few left in the State that are of the 
 primitive type. 
 
 The total area in the Arkansas valley and in the valleys of its 
 tributaries that are under irrigation I cannot give from our records 
 here, as those are not summed up. I mean I haven’t them in this 
 room. The Census Bureau of the United States, in 1902, made some 
 inquiry and reported on what they found in Colorado in the Arkan- 
 sas valley. I have that here. That differs in total somewhat from 
 our own records. The methods of calculation are different, and I 
 think their figures are under the actual quantity. They are below 
 ours. They reported that in 1902 in the Arkansas basin in 
 
 2170 Colorado there were 300,115 acres irrigated. These were in 
 4,557 farms. From the main river there were 212,341 acres 
 
 irrigated, in 2,917 farms. They reported 795 irrigation systems in 
 the basin. That, I think, is below the number of decreed ditches 
 by a good deal, and I think therefore it is below the truth. They 
 give a total cost of nearly four million dollars for the main ditches. 
 
 Speaking of the value of these irrigated lands, they of course vary 
 
StATfi OF 0OLOFADO AL 
 
 SS5 
 
 neeording to the location with respect to market as well as the quan- 
 tity of water available and its surety of sunply. There is probably 
 almost none of the land that can be had foi less than thirty dollars 
 an acre. Some of the more highly cultivated land, as orchards and 
 market gardens, in the vicinity of Canon City, run up to eight hun- 
 dred and a thousand dollars an acre. Some lands near Eocky 
 Ford under a high state of cultivation run up to the vicinity of two 
 hundred dollars an acre; and the other lands in the valley fall 
 largely between those extremes — say between thirty dollars 
 
 2171 and two hundred dollars an acre. To estimate an average 
 value of this land I would have to do it with some degree of 
 
 uncertainty — some latitude in the estimate — but I would say from 
 sixty to seventy-five dollars an acre. I think there is a larger pro- 
 portion of the land that would run down toward the lower limit than 
 would run up toward the higher limit, so that an average would be 
 less than the mean between those two extremes. These same lands 
 would be worth practically the minimum Government price of 
 one dollar and twenty-five cents an acre without irrigation. 
 Sometimes there are local reasons which make a bit of dry land 
 have an added value ; but the Union Pacific railroad has been selling 
 its land grant in eastern Colorado within the past two years, 
 
 2172 without water, at about one dollar orone dollar and twenty-five 
 cents an acre. This land in the valley of the Arkansas river 
 
 and its tributaries is not available for agricultural purposes without 
 irrigation. It is scarcely adapted for living or supporting life with- 
 out irrigation and would scarcely grow a tree or green grass without 
 an artificial application of water, and the lawns and shade trees in 
 the town and cities along the river are grown by irrigation, and 
 water for irrigation is an important part of the water supply of every 
 town and is considered usually as a part of their domestic water. 
 
 Speaking of the productiveness of these irrigated land in the Ar- 
 kansas river basin, or the amount in money which said lands have 
 produced, I have a summary of the census returns of 1899 by 
 
 2173 counties. This is the census of 1900. We know, of course, 
 of individual instances or of individual farms, where well 
 
 farmed, with intelligent irrigation, where the production will run 
 up very large or very much per acre, as in fruits, sugar beets, canta- 
 loupes and market gardens. There is a constant tendency to break 
 up into smaller holdings and to go into more intensive agriculture. 
 This census report gives the number of farms and the valuation, 
 etc., in the various counties in the Arkansas valley. Now, if we 
 take a county like Otero, whose productions are practically all from 
 irrigation, although there are stock farms outside, and ranches, the 
 number of farms given by the census, I think, includes both, and 
 states that there were 814 farms in Otero county, with 244,594 acres 
 improved. As I say, that includes the ranches which are unirri- 
 gated (objection), thus including a great deal of ranch lands 
 
 2174 of very small value. The valuation given for the farms is 
 much less than that of the irrigated sections. The valuation 
 
656 
 
 ME S4ATE OE KANSAS VS. 
 
 of the farms is given as $3,995,630; the live stock, $2,835,017 ; the 
 value of farm products as $1,089,344. That is from Otero county, a 
 typical irrigation county. Excluding live stock there could be no 
 agricultural products of any consequence raised in that county with- 
 out irrigation ; and the live stock industry is more or less dependent 
 upon the crops raised by irrigation. The stock runs on the range 
 during the summer and is brought under fence in the winter 
 
 2175 and fed alfalfa, which is grown locally there, and corn pur- 
 chased in Kansas. 
 
 Referring to Defendant Colorado’s Exhibit 22, headed “Statistics 
 the Arkansas River Water Shed in Colorado,” I will state that this 
 paper is compiled from the censuses of 1870, 1880, 1890 and 1900. 
 The particular figures which I read were from the census of 1900, 
 but the document as a whole contains certain figures from the 
 counties in the Arkansas water shed in Colorado at these 
 
 2176 four censuses. It shows the counties by name which are 
 within the Arkansas river water shed, or partly so. It gives 
 
 the area of each in square miles; it gives the population of each 
 county at each of these decades; it shows the manufactures in each 
 county at each census, giving the number of the establishments, the 
 amount of capital employed, and the wages paid; it also gives the 
 agricultural statistics for each of these four censuses, giving for each 
 county the number of farms, the area improved, the value of the 
 farms, of implements and machinery used in operating the farms, 
 the value of the live stock, the value of the farm products, and the 
 total value, and then the totals of these corresponding columns are 
 footed up, for this water shed. The area as shown here in square 
 miles is the area of these counties, and as some of these counties ex- 
 tend out a little beyond the Arkansas river water shed the larger 
 area shown is not inconsistent with the area I have previously given 
 for the Arkansas water shed in Colorado. 
 
 2177 (Defendant Colorado’s Exhibit 22 offered in evidence. Ob- 
 jection.) 
 
 At the bottom of the diagram is a reference to the report 
 
 2178 and the page of the census from which these figures were 
 taken. Referring to Defendant Colorado’s Exhibit 22 and 
 
 that part which has to do with the population of the various coun- 
 ties, in the census years from 1870 to 1900 there are certain counties 
 which show a falling off in population between 1890 and 
 
 2179 1900. These are Baca, Prowers, Kiowa and Cheyenne coun- 
 ties. All of these are counties in which there is practically 
 
 no irrigation. There are a few flood ditches, but the total irrigated 
 area is almost none. They are so situated as to make it practically 
 impossible for them to irrigate there under present conditions. Take 
 the other counties and they all practically show a gain in popula- 
 tion between the years 1890 and 1900 — all but one I think — and 
 in most of them the gain is marked. Nearly all of the coun- 
 ties showing a gain in population are irrigated counties. Of 
 
THE STATE OE COLORADO ET AL. 
 
 657 
 
 course there is an exception in El Paso county where 
 
 2180 the city of Colorado Springs is located and in the 
 county where Cripple Creek is located. The value of the 
 
 farm products as shown by Exhibit 22 in the Arkansas valley 
 for the year 1900, next to the last column on the sheet, is 
 $6,442,464. On Defendant Colorado’s Exhibit 22, in the column 
 headed ‘‘Total value,” the last column on the exhibit, is the sum 
 of the previous four columns marked “ Value.” It includes the 
 valuation of farms, of the implements and machinery, of the live 
 stock and farm products, and shows a total value of $46,994,809. 
 Within these counties which lie within the drainage basin of the 
 Arkansas river in Colorado there are numerous towns and cities. 
 Pueblo is the largest as well as the oldest as a point of settlement on 
 the Arkansas river. Colorado Springs, on the Fountain, one of the 
 tributaries; Trinidad, located on the Purgatoire; Leadville, 
 
 2181 located at or near the head of the Arkansas river; Cripple 
 Creek, on one of the branches, as well as other adjacent min- 
 ing towns; and Canon City, an important agricultural town just at 
 the exit of the river from the mountains, are among some that 
 might be named. Pocky Ford is rapidly developing as an agri- 
 cultural community, also Lamar and various smaller towns of con- 
 siderable size in the lower valley; Salida, on the river proper ; and 
 Sugar City in the sugar beet district. Take the towns such as 
 Canon City and Rocky Ford and Lamar as typical agricultural 
 towns within the drainage basin of the Arkansas river, in Colorado, 
 and irrigation is the absolute foundation of the prosperity of the 
 whole community. Such towns as Leadville, Cripple Creek and 
 Victor, typical mining towns, derive all their supplies of fruits from 
 regions outside of their own vicinity, hence a large proportion of 
 
 their supplies comes from tbe irrigated region along the Ar- 
 
 2182 kansas valley. Of course some comes from other parts of 
 the State, but practically all that they use is raised by irriga- 
 tion. Excluding range stock, practically all of the agricultural re- 
 sources of the State of Colorado are dependent upon irrigation. So 
 far as the cultivation of the land and the raising of what is known 
 as farm crops is concerned, to the State of Colorado irrigation is es- 
 sential, and this applies to orchards and trees as well as to grains 
 and grasses. There is a limited number of trees in the extreme 
 eastern part of the State started by cultivation without irrigation, 
 but they do not bear fruit, and there is a very limited amount of 
 
 grain raised by precarious farming without irrigation. The 
 
 2183 town of Cripple Creek is something less than forty miles 
 from Canon City, where agricultural products are produced ; 
 
 and Leadville, exclusively a mining town, is about 125 miles from 
 Canon City ; but some agricultural products are raised near Salida 
 and Buena Vista. On the western slope there are also irrigated 
 lands about Grand Junction which can supply Leadville. If irri- 
 gation were not or could not be practiced in Colorado the agricult- 
 
 42—7 
 
658 
 
 flltfi STATIC OF KANSAS VS. 
 
 ural products used in the towns of the State would have to 
 
 2184 come from eastern Nebraska and Kansas, at least that would 
 be the nearest source of supply. This would require a haul 
 
 of something like five or six hundred miles. 
 
 Colorado has no important rivers within its borders which do not 
 run out of and extend beyond the borders of the State, and there 
 are no rivers of any particular value for irrigation purposes in Col- 
 orado which rise or originate in any other State and run into Colo- 
 rado that do not again run out. If the principle were to be estab- 
 lished that Colorado was not to be permitted to take water from 
 streams originating within the State and running out of the 
 
 2185 State beyond its borders, the effect, would be to absolutely 
 wipe out all of the farming industry of the State, leaving 
 
 stock raising as practically the only source of revenue from the 
 lands of the State, aside from mining — I mean from the agricultural 
 lands. 
 
 Nearly one-half of the total area of the United States lies within 
 what may be called the arid region, a region which requires the 
 irrigation of lands for the successful production of crops. If we take 
 the limit of successful agriculture as twenty inches of rainfall, that 
 would mean two-fifths, in round numbers, of the United States. Of 
 course the term “ successful agriculture ” is a relative term, and 
 with the rainfall above twenty inches — from twenty to twenty -five 
 or even more — agriculture becomes precarious. Droughts are long 
 continued, crops may fail for a succession of years ; that is the mar- 
 gin of safety with the rainfall near the limit for successful agricult- 
 ure is so small that it becomes very precarious and agriculture can- 
 not be called prosperous, even if it is not an absolute failure ; and 
 so the limit below twenty inches of rainfall, which is often taken, 
 might be taken as the limit where agriculture is possible at 
 
 2186 all by ordinary methods of cultivation ; and beyond that 
 limit for some distance it would be so exceeding^ precarious 
 
 that it is very risky. This estimate is practically the same as that 
 made by Major Powell in 1878. 
 
 Where water may be had for ample irrigation, irrigated lands 
 will support a larger population per acre than non-irrigated 
 
 2187 lands. As a matter of common observation and knowledge 
 of the tendencies of cultivation in the irrigated lands, we see 
 
 as a matter of development that the methods adopted for irrigation 
 are intensive methods ; that the tendency is constantly to give more 
 cultivation, to break up into small tracts and toobtain immediateand 
 great returns from fertilizers, which irrigation makes it possible to 
 do. We see that tendency has been developed in the Salt Lake 
 valley, it is developed in this State in the Cache La Poudre valley 
 and in portions of the Arkansas valley. Where the unit is small 
 the population is large, and this represents the tendency that is 
 almost irresistible in the irrigated countries and not accidental or 
 due to the peculiar position or location. It is also possible under 
 such conditions to multiply the number of crops, and one reason 
 
THE STATE OF COLORADO ET AL 
 
 659 
 
 why the population may be greater and is greater under the success- 
 ful irrigation method is that the certainty of crops becomes greater. 
 The risk is less and consequently the population can press closer 
 upon the immediate means of subsistence than where the element of 
 chance enters to a great extent. The same element enters in other 
 countries, as in Egypt, which lias been known from time imme- 
 morial as one of the most populous countries, in the portion 
 
 2188 which is irrigated. The portion which is irrigated in Egypt, 
 and which constitutes Egypt for every intent and purpose 
 
 except square miles, is not twice the irrigated section of Colorado. 
 The populous valleys of the Tigris and Euphrates have been known 
 from time immemorial. In the valley of the Po in Italy the popu- 
 lation runs up to something like 700 per square mile as a whole. 
 The tendencies for the past few years in various portions of the Cache 
 La Poudre valley in northern Colorado have been such as to break 
 the land up into five or ten acre tracts. Near Grand Junction, Colo- 
 rado, are similar illustrations. At Canon City in the Arkansas 
 valley people are living and thriving on tracts of but a few acres — 
 two or three acres — putting in immense amounts of labor and 
 terracing the hill sides. So these conditions have already been 
 reached in some portions of this new State, and they show tendencies, 
 I think, that are continuous, and need only the lapse of time and 
 greater value of water and land to make them more evident 
 
 2189 all the way through. The cases given are typical. It makes, 
 then, agriculture almost as certain as manufacture, because it 
 
 reduces the element of risk to a great extent. It removes, then, 
 partly, the element of speculation, if that may be applied in Colo- 
 rado, when the water supply is assured. I can give some special 
 instances of production from irrigated lands in Colorado. There 
 is at least one case in the State where the crop of sugar 
 beets has been thirty-three tons to the acre, having a market 
 value of five dollars per ton. That was in northern Colorado, and 
 I mention it because I know of that case. There may be others 
 larger. I have known of large fields that averaged from twenty-two 
 to twenty-eight tons to the acre. I have had some occasion 
 
 2190 to keep track of the sugar beet industry. Our experiment 
 station has been making investigations along that line for 
 
 fifteen years prior to the sugar industry in this State. My impres- 
 sion is that the average production in Nebraska was less than seven 
 tons to the acre, and that was a good return, but I am not sure of 
 my recollection there. The sugar beet test on Colorado beets made 
 first, I think, by the experiment station in 1888 or 1889 when they 
 first started, showed results obtained in the yield of sugar so large 
 as to be taken with incredulity by our eastern friends and those in- 
 terested in sugar. The first sugar beet factory was put in at 
 
 2191 Grand Junction, I think, in 1899, and at Rocky Ford in the 
 following year. The success at Rocky Ford was marked from 
 
 the beginning. The yield was large in beets, and the yield in sugar 
 per ton of beets was large. It has generally been considered that 
 
TttF STATIC OF KANSAS V& 
 
 twelve per cent, of sugar product was a successful yield of sugar. 
 At this factory they made a flat price for beets containing twelve to 
 fifteen per cent, of sugar, and nearly all of their beets exceeded this 
 fifteen per cent., so that the average was nearly seventeen per cent. 
 Since that time there have been developed other factories in the 
 State, so that now from one place in this State one can see the smoke 
 from six beet sugar factories — at Loveland, at Fort Collins, at Long- 
 mont, at Windsor, at Greeley and at Eaton. Each of these factories 
 represents the investment of a large amount of capital. They rep- 
 resent a large amount of labor and investment for the farmers. 
 With few exceptions the industry has been completely successful 
 with the farmers, and those exceptions are of that type of fail- 
 
 2192 ures which is found in any industry. There is also a factory 
 at Sugar City in the Arkansas valley, one of the earlier facto- 
 ries, and it is reported that one or two others have recently been 
 arranged for. These factories obtained beets that have exceeded 
 fifteen per cent, in yield of sugar in all places, and in one or two 
 years some of the factories have had an average in the neighbor- 
 hood of eighteen per cent, or over. I think one factory exceeded that 
 amount one year. In our analysis of beets at Fort Collins we have had 
 beets that exceeded twenty-two per cent, of sugar. I have heard and 
 have good reason to know that one of the factories paid for sugar 
 something like twenty-six per cent. That was perhaps an excep- 
 tional case and not a normal one, as in that particular case I think the 
 farmer also lost money ; but the yield of sugar is very large. The 
 
 percentage of richness is large. And that also is due to the 
 
 2193 same reason that the cantaloupes are sweet where raised under 
 favorable conditions. I think that there is about fifty thou- 
 sand acres in sugar beets in this State. In order to make beet grow- 
 ing successful a farmer counts that he must get twelve tons of beets 
 per acre. The price per ton is fixed by the factories and that is 
 given as a guaranteed rate. A number of factories give a flat rate 
 of $5 per ton independent of the sugar content, providing that con- 
 tent is twelve percent, of sugar or above. The annual prod- 
 
 2194 uct of beets is probably about 600,000 tons. The average 
 price is close to $5 per ton. I think that sugar has brought 
 
 in the neighborhood of five cents per pound or $5 per hundred. I 
 am not so familiar with the prices. It has fluctuated be- 
 
 2195 tween $4.20 and $5.50; but at $5 per hundred that would 
 mean a price of $100 per ton for sugar. At that rate 60,000 
 
 2196 tons would be $6,000,000. The pulp from making this 
 sugar, which retains some of the sugar properties, is being 
 
 used for feeding cattle and sheep. It has been shown by actual ex- 
 perience by farmers and at the experiment stations that it forms a 
 very valuable food suppty in connection with alfalfa, alfalfa being a 
 product of our irrigated lands, grown in great abundance. 
 
 Speaking of feed for animals, if irrigation were done away with 
 in this State, the only stock raising that could he carried on would 
 be the range industry, that of cattle grown on the range and not fed 
 
THE STATE OF COLORADO ET AL. 
 
 661 
 
 for market, with very rare exceptions. They would have to be fat- 
 tened and put into shape for market, and as is evident in this State, 
 in a good many places the combination of the two makes a model 
 agricultural condition. Each renders the other more valuable, and 
 without irrigation the cattle would not be at all in shape for 
 market. 
 
 2197 The crops already developed by irrigation in this State 
 are to some extent accidents. I mean by that that the con- 
 ditions of irrigated agriculture, and especially such as are here in 
 the State, are such that it is largely a question of will — a question 
 of desire — as to what crop one will raise. You have under the best 
 irrigated conditions the soil kept moist and the right degree for the 
 
 best production ; on the other hand in the arid country 
 
 2198 you have the freedom from rain, which means espe- 
 cially freedom from clouds. You have the presence 
 
 of sunlight — the motive force of the sun acting on the plant, 
 which is the source of the growth of the plant so far as 
 the power there produced — heat and light — hence it makes the 
 model condition for agriculture. The particular crop grown is lim- 
 ited mostly by the skill of the individual, his knowledge, his meth- 
 ods, and certain limitations of climate. We cannot grow oranges 
 in this State, for instance, but within a wide range the selection is 
 left to the discretion of the cultivator. For instance, in this State 
 a series of specialties are growing up. Communities are known for 
 certain things. Rocky Ford is known not only for sugar beets but 
 for cantaloupes. The regions around Pueblo and Denver are known 
 for their market gardens, because of the advantages of the market. 
 They take this year one thing and another year perhaps another. 
 Canon City is known for its apples and small fruits ; Grand Junc- 
 tion and Palisades for peaches; the North Fork country, over in 
 Delta and that region, also for peaches and pears and other 
 
 2199 fruits; at Longmont are currants and peas; at Loveland 
 raspberries ; at La Porte, near Fort Collins, we have onions ; 
 
 at Greeley, potatoes. The special crop raised is often due to the fact 
 that there has been some one man there who has been a man of 
 energy and knowledge, who has given an example to the commu- 
 nity. At Loveland a nurseryman had developed a raspberry plant 
 that produced berries which not only had the excellent qualities of 
 other raspberries, but also had the ability to stand up under ship- 
 ment; and from that beginning they have grown to cultivate hun- 
 dreds of acres in that product and they ship them out bv carloads. 
 At La Porte onions have developed and a certain region there makes 
 a specialty of onions and has great success with them. Some of these 
 specialties produce great crops in values, sometimes several 
 
 2200 hundred dollars an acre. At Greeley came the potato indus- 
 try, which was encouraged by a combination of soil condi- 
 tions, the soil being sandy and free from potato diseases that are 
 found elsewhere. At Longmont came the development of peas from 
 the fact that a canning factory was established there ; and the 
 
662 
 
 THE STATE OF KANSAS VS. 
 
 largest currant farm in the world is at Longmont. And so other 
 instances can be given throughout the State, The fact that the rasp- 
 berry industry has developed at Loveland is not peculiar to that 
 place. It could have been developed at almost any other place in 
 the State had it the combination of the skillful gardener and the 
 plant developed there. And so with cantaloupes in the Arkansas 
 valley. Those were developed there from the same plant that is 
 grown East, but it showed under sunny conditions what mauy 
 other plants do — a development of those qualities of sweetness, 
 just as the beet does in sunshine, a condition which the cul- 
 
 2201 tivator can very largely control. The same is true of apples. 
 The cantaloupe industry started at Rocky Ford but now 
 
 it extends for miles up and down the river from Pueblo to Holly. 
 The number of carloads of cantaloupes shipped out by fast freight 
 or express last year I think was very nearly eight hundred. The 
 cantaloupe raised in that particular vicinity has acquired a reputa- 
 tion which makes the product sought after all over the country and 
 has a value of not far from $1.00 per crate at that place, and they 
 produce many crates to the acre. I think the better yield has run 
 in the neighborhood of a hundred crates to the acre. These canta- 
 loupes are shipped to cities in the East. They have not, how- 
 
 2202 ever, been as widely distributed as they may. They have 
 been shipped some seasons as far as Boston, New York, Pitts- 
 burg and Buffalo in carloads, and in fact I think the larger part 
 marketed has been in the extreme eastern cities. Some of the 
 orchards of Rocky Ford have had very high productions both in 
 money and in the yield of apples. The quality is especially good, 
 grown under the conditions of sunshine we have here, and would 
 hardly be recognized as the apples of the same name grown in the 
 East. The apples grown in Colorado have a much higher color, a 
 waxy surface and firmer flesh and a better flavor. Now, these are 
 peculiar to the conditions not particularly in Colorado but where 
 the moist soil is combined with a sunny climate, and so far as apples 
 
 are concerned, we always have the cool nights and the rela- 
 
 2203 tively cold climate, which also goes with the best apple pro- 
 duction. Now, in apples we have had yields at Canon City 
 
 running up to $100 an acre ; and so with other products. 
 
 In speaking of the specialties that have been developed in these 
 different places, they have been in addition to and superadded to 
 the ordinary agriculture such as wheat and alfalfa. People come 
 in and take small tracts and develop these specialties, and the tend- 
 ency is toward dividing up the larger tracts into these specialties, 
 all the way through, and there are many other specialties 
 
 2204 that are likely to be developed. Individual apple trees yield 
 more and yield earlier in this country under the conditions 
 
 prevailing than in the East. A tree here will produce some apples 
 at an age that in the East you would not consider possible ; but in 
 addition to the actual number of bushels yielded there is a much 
 larger percentage of it of marketable quality. The apples are free ; 
 
THE STATE OF COLORADO ET AL. 
 
 663 
 
 from blemish. They stand exceedingly high in the market among 
 choice appearing apples. Buyers come here from Chicago to pur- 
 chase apples for the choice eastern markets. 
 
 Those are merely instances of the general character of our con- 
 ditions. 
 
 Celery is also raised here in large quantities. I have known 
 
 2205 celery to be shipped in carload lots from here to Spokane, as 
 fine in quality as could be found anywhere. And so while 
 
 I have mentioned four or five special crops, the general conditions 
 are such that a great many other crops would have correspondingly 
 good qualities. 
 
 In regard to the number of apple trees that can be raised per acre, 
 I know as a matter of fact that they grow apple trees here a great 
 deal closer than is done in the eastern orchards; that is the com- 
 mon practice, and I have never seen any ill results from it, because 
 the trees have been absolutely loaded down with fruit. It is neces- 
 sary for them to prop up the branches. One of the largest growers 
 in the State has invested a good many dollars, I think several hun- 
 dred, just for props to hold up the limbs. The trees are generally 
 planted from twenty to thirty feet apart. 
 
 2206 Recurring to the Arkansas river and its characteristics, on 
 page 4 of Senate Executive Document 120, Major Powell, who 
 
 prepared the answer to the Secretary of the Interior, which is trans- 
 mitted by the Secretary, states as follows: 
 
 “ The waters of the Arkansas that flow during the irrigating season 
 are partly used in Kansas, but chiefly in Colorado ; so that already 
 in critical seasons the river runs dry near the Colorado-Kansas line. 
 The future development of irrigation in the valley of the Arkansas 
 therefore depends chiefly upon the storage of water. This storage can 
 be accomplished with advantage, in fact with great economy, in 
 
 2207 the mountain regions of Colorado. Along the headwaters of 
 this stream in the mountains there are many mountain 
 
 meadows and morainal valleys where lakes can be created to store 
 large bodies of water at small expense. When the waters of these 
 mountain streams are stored in the upper regions, where they are 
 comparatively clear, the reservoirs have a permanent value, from the 
 fact that they will not be speedily filled with sediment; but if reser- 
 voirs be constructed below on the plains, and the rivers taken out 
 where they are muddy and excessively muddy, as is the case with 
 the Arkansas, the storage basins will be speedily filled with sediment 
 and destroyed. If stored on the plains, as in the case of the South 
 Platte, the waters must be diverted from the natural channels, where 
 they debouch from the mountains and carried in canals to the stor- 
 age basins. This adds greatly to the expense of storage. 
 
 “But there is another consideration affecting this question, of 
 great importance. In the lowland reservoirs the evaporation from 
 the surface would be 50 to 75 inches, and the lowland reservoirs 
 would therefore lose a large body of water in this manner, while in 
 the highland reservoirs the evaporation would probably be not 
 
664 
 
 THE STATE OF KANSAS VS. 
 
 greater than 25 inches, and might often be less. Whenever high 
 land reservoirs are possible the waters must be stored in the upper 
 regions, and these conditions control the case of the Arkansas river. 
 The waters of the Arkansas cannot be taken out within the bound- 
 aries of the State of Kansas and stored in reservoirs, from the fact 
 that they contain so much silt that the reservoirs would be speedily 
 obliterated. The flow of waters in the irrigating season is already 
 provided for. All additional irrigation from these waters would be 
 so small that all State interests may be neglected. 
 
 “The irrigating season on this river is, on an average, something 
 more than two months, while the waters run to waste for more than 
 nine months. It is this waste water that is to be stored in the 
 mountains. Whatever is thus stored will decrease the volume 
 
 2208 passing the Kansas-Oolorado line during the none-irrigating 
 season, but will greatly increase the volume passing that line 
 
 during the irrigating season ; and, as in the case of the South Platte, 
 the prospect for irrigation in western Kansas depends upon the stor- 
 ing of water in Colorado. The greater the storage the greater will 
 be the area irrigated in Kansas. 
 
 “ It must be understood that in the above statement the primary 
 facts and principals have been set forth and general results given. 
 Exact quantitative results can not be given at this stage of the in- 
 vestigation ; but if the work of the irrigation survey is continued 
 until the survey is completed, practical quantitative results will be 
 afforded. 
 
 “ When the investigation was begun under the instructions of the 
 Secretary, I had not carefully considered the subject, and had made 
 no collection of the available facts relating thereto; and I supposed 
 that the waters of the South Platte and of the Arkansas falling in 
 Colorado would be wholly or chiefly utilized in Colorado and I rea- 
 soned in this manner from the consideration that the people of 
 Colorado are already engaged in these industries, and are more 
 likely to speedily develop irrigation industries than are the people 
 in Kansas and Nebraska. But there was another consideration 
 which engrossed my attention for the time. On the arid plains 
 no perennial streams are born. The water which falls from the 
 heavens is in the main evaporated back to the heavens, though 
 when great storms, fall storm- waters, collecting for a few hours or a 
 few days at most, flow into the perennial streams that head in the 
 mountains and cross the plains; and I suppose that like results 
 would follow from the spread of irrigating waters on the lands. 
 But experience in California, in Utah, in Colorado and on the Gila 
 in Arizona abundantly exhibits the fact that the waters used in 
 irrigation are but partially evaporated, and that a very large quan- 
 tity finds its way again to the streams. It is thus that the facts of 
 experience have modified preconceived hypotheses. 
 
 2209 “ Ultimatel} r a very large area in Kansas and Nebraska 
 will be irrigated by impounding the local storm-waters of 
 
 that region, and the typographic conditions are very favorable for 
 
TH 12 STATE OF COLORADO ET AL. 
 
 665 
 
 such enterprises. But besides the irrigation which it is possible to 
 accomplish through the impounding of storm-waters, considerable 
 areas will be irrigated through the utilization of the waters of the 
 North Platte, the South Platte, and the Arkansas — all contingent, 
 however, upon the condition that the waters of these streams be 
 stored above. 
 
 “ It must be remembered that the upper Arkansas, the North 
 Platte and the South Platte are not navigable streams. They are 
 all exceedingly broad, muddy rivers, having great declivity, and so 
 shallow as to be practically impassable for even canoes during the 
 greater part of the year. They are thin sheets of mud tumbling 
 down a highly-inclined plane; so that the interests of navigation 
 are in no way affected by the use of these streams for agriculture. 
 
 “The use of these streams for agricultural purposes will have no 
 practical effect upon their uses as powers in Kansas and Nebraska. 
 Because of the great amount of sediment which they carry, they 
 have little value as powers; for if hydraulic works were constructed 
 along their upper courses it would be at an enormous expense, on 
 account of their great width and because they run through vast ac- 
 cumulations of sand ; and if the streams were dammed and ponds 
 created they would speedily be filled by the enormous inflow of 
 sand. There is yet a further consideration. The rain which falls 
 in Kansas and Nebraska furnishes a sufficient volume of water for 
 the Platte and Arkansas alike for all possible prospective use as 
 mechanical powers. 
 
 “ From the abQve statement it will appear that the question of 
 the use of the Platte rivers and of the Arkansas is one affecting 
 agriculture only, and that the amount of irrigable lands redeemed 
 in Nebraska and Kansas bv the waters of the Platte and Arkansas 
 depends upon the amount of water stored in Colorado and Wyom- 
 ing. 
 
 “ I am, with great respect, your obedient servant, 
 
 “J. W. POWELL, Director. 
 
 “ The Secretary of the Interior, 
 
 “ Washington, D. C.” 
 
 2210 Also referring to pages 6 and 7 of the same record, which 
 is the letter of the Commissioner of the General Land Office to 
 the Secretary of the Interior, transmitted by the Secretary, in answer 
 to a portion of the same resolution of the Senate, in answering a 
 question as to whether the title conveyed by the Government cov- 
 ered the privilege of diverting water, etc., I find the following: 
 
 “ Department of the Interior, 
 
 “ General Land Office, 
 
 “ Washington, D. 0., December 8th, 1888. 
 
 “Sir: I have the honor to return herewith the resolution of the 
 Senate of the United States of August 29, 1888, which you referred 
 to me on the 1st September, 1888, with a request for the expression 
 
666 
 
 THE STATE OF KANSAS VS. 
 
 of my views ‘ upon the inquiry as to whether the title conveyed by 
 the Government to land bordering on the streams specified conveys 
 the privilege of diverting water therefrom beyond what is necessary 
 for use thereon for irrigation and mining purposes, and what action 
 is necessary to protect the rights of riparian owners along the waters 
 of said streamsin Kansas and Nebraska.’ 
 
 2211 “ This resolution refers to the diversion of the waters of the 
 Platte and Arkansas rivers and their tributaries for irriga- 
 tion and other purposes, in Colorado, and inquiries, first, to what 
 extent such diversion affects the flow of the waters of those streams 
 in the lower valleys, and especially during the growing season ; 
 second, whether the title conveyed by the Government to lands 
 fronting on said streams covers the privilege of diverting water 
 therefrom beyond that necessary for use thereon for irrigating and 
 mining purposes; third, what action is needed to protect the rights 
 of riparian owners along the waters of said streams in Kansas and 
 Nebraska; and fourth, what measures can be devised to increase 
 the flow of water in these streams during such season. 
 
 “ Of these matters only those embraced under the second and 
 third heads come within your request for an expression of my views. 
 
 “ In reference to the former, I have to state that the title conveyed 
 by the Government carries with it the right to the enjoyment of the 
 water privileges attaching under the common and statute law to the 
 proprietorship of the land. This right is affected by certain pro- 
 visions of the acts of Congress of July 26, 1866, (14 Stat. 253), Julv 
 9, 1870, (16 Stat. 217), and May 10, 1872, (17 Stat. 91), now em- 
 bodied in sections 2339 and 2340, United States Revised Statutes. 
 These sections read as follows: 
 
 Sec. 2339. Whenever by priority of possession, rights to the use 
 of water for mining, agricultural, manufacturing, or other purposes 
 have vested and accrued, and the same are recognized and acknowl- 
 edged by the local customs, laws, and the decisions of courts, and 
 the possessors and owners of such vested rights shall be 
 
 2212 maintained and protected in the same; and the right of way 
 for the construction of ditches and canals for the purposes 
 
 herein specified is acknowledged and confirmed ; but whenever any 
 person, in the construction of any ditch or canal, injures or damages 
 the possession of any settler on the public domain, the party com- 
 mitting such injury or damage shall be liable to the party injured 
 for such injury or damage. 
 
 Sec. 2340. All patents granted or preemptions or homesteads 
 allowed, shall be subject to any vested and accrued water rights, or 
 rights to ditches and reservoirs used in connection with such water 
 rights as may have been acquired under or recognized by the pre- 
 ceding section.’ 
 
 “The foregoing statutes recognize the rights subsisting under the 
 ‘local customs, laws, and the decisions of courts’ to the use of water 
 for mining, agricultural, manufacturing, or other purposes, and en- 
 act that the possessors and owners thereof shall be maintained and 
 
THE STATE OF COLORADO FT AL. 
 
 667 
 
 protected in the same, and the right of way for the construction of 
 ‘ditches and canals’ for the purposes specified is acknowledged and 
 confirmed. All patents granted or preemptions or homesteads 
 allowed are made subject to the rights so recognized, acknowledged 
 and confirmed. 
 
 “The statutes of Colorado, which provide elaborately for the reg- 
 ulation and protection of such water rights, may be found in the 
 General Statutes, State of Colorado, of 1883, page 560 et seq ., and for 
 information on the general subject, Gould on Waters, sections 226 to 
 240, inclusive, may be consulted. 
 
 2213 “ The 4 local customs, laws, and decisions of courts,’ so far 
 as I am able to ascertain, appear to admit of the diversion of 
 
 water from streams to an extent beyond what is implied in the ex- 
 pression, ‘ necessary for use on the lands fronting on the streams for 
 irrigation and mining purposes.’ They seem to contemplate the 
 conveying of the water for use beyond the land fronting immedi- 
 ately on the streams, and even for use in reservoirs, for mining, 
 agricultural, manufacturing and other purposes. 
 
 “ In reference to the inquiry touching the rights of the riparian 
 owners, I can only suggest, with the limited data in my possession, 
 that the question, having reference to the vested rights of owners 
 under existing laws, does not appear to be one for legislative or de- 
 partmental action, and that in case of controversy the courts are 
 open for the adjudic-tion of the rights of such parties, whatever they 
 may be, under the law and the facts of the particular case. 
 
 “ Very respectfully, S. M. STOCKSLAGER, 
 
 “ Commissioner. 
 
 “ Hon. William F. Vilas, Secretary of the Interior.” 
 
 2214 I now have before me the 21st Annual Report of the United 
 States Geological Survey, 1899-1900 ; part IV ; hydrography ; 
 
 and opposite page 609 there is a map marked “ Plate No. 113,” 
 which shows the high plains and accompanies a monograph by 
 Willard D. Johnson on the subject of “ The high plains and their 
 utilization.” The map shows the Great Plains in Texas, Kansas, 
 Colorado and adjacent States, and the streams, including the Ar- 
 kansas river. The Arkansas river is shown on this map from its 
 source down to near the State line of Colorado as a full line, but be- 
 tween a point near where Lamar, Colorado, is located and a point a 
 little above Dodge City in Kansas it is shown by a dotted line in 
 the same manner as other intermittent streams that are dry at por- 
 tions of the year. This dottted line on the map would indicate that 
 the maker considered the stream one which was dry for portions of 
 the year. 
 
 2215 (Defendant Colorado’s Exhibit 23 offered in evidence.) 
 
 Referring to the value of the potato crop of Weld county, 
 Colorado, which is known as the Greeley country, I will state that 
 it ranges in the vicinity of $3,000,000 per annum. 
 
668 
 
 THE STATE OF KANSAS VS. 
 
 In reading historical references bearing upon the Arkansas river 
 in western Kansas, I referred more particularly to those showing 
 the river in that locality was often found dry or with but little water 
 running in it. There have been some instances, but not so many as 
 might be expected, when the waters have been found high by 
 
 2216 the writers, and times when it would be difficult to ford. 
 Pike mentions the fact that the river rose within a day or two 
 
 after he reached it in October, 1806, and that this rise was immedi- 
 ately following a heavy rain, and that they tried to send Lieutenant 
 Wilkinson down the river, but he stranded, I think, the next day. 
 The river sank. And there are various cases, like that at Dodge 
 City, which was quoted, where they speak of the river at times hav- 
 ing considerable water in it. It is still true of the river in that 
 locality that there are times when there is considerable water in it, 
 like the flood of July, 1904, when it washed out the country near 
 Wichita and in that vicinity, where rains in the vicinity have an 
 immediate effect upon the adjacent river. 
 
 I spoke of the precipitation in Colorado amounting to 
 
 2217 about 14 inches a year. This is unequally distributed 
 throughout the year, first in months. The months of April 
 
 and May as a rule have the largest precipitation in inches. The 
 summer months, July and August, are months of showers. These 
 showers may be small or large, that is, they are thunder showers, 
 and frequently come with very great violence. They approach the 
 character of what we speak of here as cloudbursts, which means a 
 very heavy precipitation in a very short time. Occasionally there 
 may be a continued rain lasting for one or two or three days, but 
 that is rare. This same condition of extreme, violent precipitation 
 is characteristic of the plains and extends all through the arid coun- 
 tr} r . There are very violent thunder storms with heavy hail very 
 frequently, and a very great rapidity of fall, much faster than the 
 ground can absorb. There was such a heavy storm as that in Au- 
 gust, 1904, at Dodge City, Kansas. Nearly two inches of 
 
 2218 water fell there within a very short time. 
 
 All of the lands irrigated from the Arkansas river and its 
 tributaries are situated within the drainage area of the river and 
 its tributaries, so that the seepage or return waters from irrigated 
 lands go back to the tributaries or the main stream. Where lands 
 are irrigated on the tributaries they are most always close to the 
 stream, near its banks. When you reach the main stream the 
 larger ditches are extended farther back from the stream and cover 
 a wider area of territory, but still within the drainage of the 
 river. 
 
 2219 Referring to the subject of seepage and return waters, I 
 will state that I have investigated this subject. I made the 
 
 first series of seepage measurements in 1889 or 1890 on the Poudre 
 river in northern Colorado, making the measurements from the foot 
 hills to its mouth at the Platte, a distance of perhaps 60 miles. 
 Those measurements have been continued every year since that 
 
STATE OF COLORADO ET At. 
 
 
 time. They have been extended in a similar way over adjacent 
 streams until we have taken in all of the Platte and its tributaries — 
 the South Platte, including the Big and Little Thompson, the St. 
 Vrain, the Boulder and South Boulder creeks, the Left Hand creek, 
 Clear creek, Bear creek, and the main South Platte, from the 
 
 2220 mountains to the State line. These investigations have also 
 extended to the Arkansas, the Rio Grande, and other streams, 
 
 and they have shown that the stream increases; that throughout 
 an irrigated region a stream may be drained dry and within a short 
 distance it will again be a flowing stream of perhaps considerable 
 magnitude. That is most noticeable through the irrigation dis- 
 tricts and under the irrigation ditches. As a consequence, that 
 water may be drawn from what has been a dry stream; that this 
 amount is considerable, both in itself and as a means of increasing 
 the agricultural production of the State ; that this water often 
 shows in the form of swamp or seeped lands, and that it gradually 
 reaches the river either through the extension of the seeped lands 
 or through lateral drainage channels. Now, upon the Poudre the 
 amount has increased during the time of these measurements from 
 about 100 cubic feet per second of time until now it is something 
 like 150 cubic feet per second. This increase has taken place 
 within the last fourteen years. On the South Platte the amount of 
 return waters is now approximately 1000 cubic feet per second. 
 That is on the Platte and not on the tributaries. In determining 
 the seepage or return waters, other tributaries were excluded ; but 
 this includes the increase in the water in the stream from these 
 practically invisible sources or sources which we have reason to 
 know are seepage waters — drainage waters. Prior to irriga- 
 
 2221 tion there were practically none. There were a few cases of 
 oozing springs, but not many. On the Arkansas river the 
 
 return waters amount to in the neighborhood of two hundred to 
 three hundred cubic feet per second of time from Canon City to the 
 State line. We have also made some measurements in the lands 
 above, the hay lands about Buena Vista, and there the percentage 
 of return water is much greater. The water is applied on hay land, 
 which is a very porous soil, and not far from the stream, so that the 
 whole country is something of a marshy country. All this water 
 which returns to the stream forms, then, an additional supply in 
 the stream, and is again taken out in canals which may be 
 situated lower down, and thus it makes an appreciable and 
 important addition to the supply of water in the stream. 
 
 2222 Of course it does not add actually to the original 
 amount of water which would be in the stream if none 
 
 were taken out, for there is a certain amount of loss by evaporation 
 and in plant life, when applied to the land ; but it does increase the 
 aggregate — the sum — of the amounts taken at the several places, 
 but does not increase the amount at any one place more than it had 
 been before. Between Canon City and the Colorado-Kansas State 
 line, there was practically no natural seepage into the stream ; that 
 
G70 THE STATE OP KANSAS VS. 
 
 is, the adjacent country did not furnish much of any water. Nearly 
 all of such seepage as now shows can be traced to conditions 
 
 2223 since the irrigation ditches were established. Since irrigation 
 has been practiced between Canon City and the Kansas-Colo- 
 
 rado State line we find that the aggregate or sum total taken out by 
 the various ditches along the river will be greater than the amount 
 found in the river at any given place. They use in the aggregate, 
 therefore, more than appears to be in the stream or than passes 
 Canon City, and that is true because a great deal of the same water 
 is used over and over again. So the amount of the water appro- 
 priated, decreed and used between Canon City and the State line on 
 the Arkansas river is greater than the ordinary flow of the river at 
 any given point in the State. It is also true that the amount of 
 water appropriated, decreed and used is often misleading to one not 
 familiar with conditions, because of the fact that all of the ditches 
 are not alwaj^s using water at the same time. In the first place it 
 may be said that the decree of a ditch stating the amount 
 
 2224 of its appropriation is practically a statement of the maxi- 
 mum amount which it can have under that decree or appro- 
 priation ; therefore, it may be that the stream is over appropriated 
 for any ordinary time. The ditches which have the first right 
 and the first appropriations and prior decrees would be entitled 
 to the water first if they needed it, so long as the stream would 
 supply it. In case there was an excess of water — a flood or increase 
 over the natural supply — then the next ditches may take water, 
 and so it continues. Sometimes, then, the ditches may not call 
 for the water — may not need it. While these decrees or appro- 
 priations recognize the light of the ditch to a certain amount of 
 water if it is in the stream, they do not force the ditches to take 
 water if they do not want or need it. On the contrary, under 
 the provisions of law and custom, if a ditch does not need the 
 water it has no right to it, and it is the duty of the water com- 
 missioners not to turn it in unless it is needed. The amount of 
 a decree, then, represents the rate of flow which the ditches 
 may be entitled to ; and hence if they can dispense with the 
 water for a greater or less time it may go into another ditch and 
 
 might be said to be used by different ditches at different 
 
 2225 times. A given amount in a stream may be much more 
 effective than the number of cubic feet in the stream itself. 
 
 The term “ decree ” which I have mentioned here has not been 
 referred to before and it may be defined as the finding of the court 
 and represents the conclusion at which the court has arrived after 
 hearing the evidence as to the amount of water to which a ditch is 
 entitled, and the date. It may be considered as a formal finding of 
 the court as to the vested rights of a ditch. It gives the quantity, 
 and as the date is of importance it also gives the date to which that 
 right attaches. In most cases it is practically true that the decree 
 states the maximum quantity to which the ditch is entitled. Under 
 our constitution, which represented a condition existing before that 
 
TftE STATUE OB' COLORADO Rt AL. 671 
 
 time, the right to water was obtained by usage, and hence the 
 amount of their appropriation depends upon the amount of whicli 
 they had made use; and of course as the same water could 
 
 2226 not be used by two different parties, the date then becomes 
 of considerable importance. It is also an essential element 
 
 in the findings. The legislature has provided means and methods 
 for action by the courts so that a formal investigation is made and 
 it is formally found how much water a ditch is entitled to and the 
 date. It therefore really represents, as I said before, an investiga- 
 tion and declaration of the amount of their vested rights. The 
 State is divided by legislative enactment into water districts, which 
 are numbered from 1 to 67, I believe. The Arkansas River water 
 division includes water districts numbers 11, 12, 14, 17 and 67, on 
 the Arkansas proper, and number 10 on Fountain creek, 13 on 
 Grape creek, 15 on the St. Charles, 16 on the Huerfano, 18 on the 
 Apishipa, 19 on the Purgatoire, and 66 is also in the Arkansas 
 water shed but the stream draining it does not flow into the Ar- 
 kansas until in the Indian Territory. That is on a branch 
 
 2227 of the Cimarron. All together there are twelve water dis- 
 tricts in the Arkansas water shed, excluding a portion of dis- 
 trict number 23 which runs over a little onto the Arkansas water 
 shed in South park. The decrees establishing the rights of water 
 users in a given district are entered by the district court 
 of that district or some county within that district and set- 
 tle the rights as between all water users within that water dis- 
 trict. Prior to the entering of a decree statements of claims 
 for water rights are filed in the district court and the pro- 
 ceeding to adjudicate the rights is initiated by a petition 
 filed by some water user. This is all a matter fixed by statute. 
 After these preliminaries have taken place, then either the court 
 
 directly or a referee appointed by the court hears evidence 
 
 2228 upon the rights of the various users in the district, and based 
 upon that evidence the decree is entered. In all, I think, of 
 
 the districts in the Arkansas water shed such proceedings have been 
 had and such decrees entered, unless it may be in numbers 11 and 
 66 and possibly one other. The proving of these rights necessitates 
 the expenditure of considerable time and money by the various 
 owners of water rights within the district, at times a great deal. 
 There is a statute which requires that appeals must be taken within 
 a given time after the entering of a decree, and it is also provided 
 that the decree cannot be opened up after a certain time, and after 
 that time it becomes final in the fullest sense and cannot be inter- 
 fered with by those who were parties to the original proceeding. 
 
 The rights secured by these decrees are conveyed by the owners as 
 their lands are sold, and also separate from the lands, sometimes by 
 direct conveyance and sometimes by transfer of stock in the 
 
 2229 ditch companies. The relative rights of the users of water 
 in an} r given stream, that is, as to which shall have the first or 
 
 better right, depends upon the priority of appropriation and use. 
 
ftflk STATIC Ok kAMSAS V&. 
 
 m 
 
 That is declared in the constitution and was in vogue long before 
 that. 
 
 As land is irrigated from year to year it requires less water ; that 
 is, land usually requires more water when first brought under irri- 
 gation than after it lias been irrigated for a series of years. 
 
 2230 My observation and experience have shown that where large 
 tracts of land bordering on a stream have been brought under 
 
 irrigation the seepage or return waters from such irrigated lands 
 tends to increase as the years of irrigation increase. During the 
 first few years there is very little seepage. It takes some time for 
 water to get to the stream from a ditch that lies at some distance 
 from the stream, by seepage. The methods adopted to determine 
 the amount of return waters to a stream, the Arkansas river, for 
 instance, are as follows: It consists in dividing a stream into 
 series or sections, measuring the water that enters each section 
 from all visible sources and the water that goes out from that 
 section. The measurements are made by parties supplied with 
 instruments for the measurement of water and they pass along the 
 whole length of the river, practically over every foot of it. A 
 measurement is made, we will say, at Canon City ; then the inflow 
 tributaries, like the Four-mile and other creeks that may come in 
 in the intermediate distance, are measured. All of the water that 
 is taken out in the canals is measured also. Then if there be neither 
 gain nor loss the amount left in the stream would be represented 
 by adding the inflow to the original amount and subtracting the 
 outgo. That would show what remains, provided there is neither 
 increase nor decrease from other sources. Then a measurement of 
 the river is made and that is compared with the balance 
 
 2231 which we should expect by adding the inflow and subtract- 
 ing the outgo. We very rarely find them the same. There 
 
 is either more water than would be shown by that balance or less. 
 Generally in the irrigated sections there is more, and this is the 
 seepage or return water. We have found that the irrigation of 
 large tracts of land has produced running streams in what had 
 formerly been dry gulches or arroyos, and they are in fact some- 
 times used as the sources of ditches and filed upon for water rights. 
 These dry gulches or arroyos do not run water simply for the time 
 the land is being irrigated but they form nearly constant streams. 
 This is analogous to the springs of a more humid climate. The 
 lower ground is saturated and this water percolates out very slowly 
 so that it forms a constant supply, and except for the difference due 
 to temperature, which affects it, the streams which are sup- 
 
 2232 plied from that source are practically constant the year round. 
 
 Of the irrigation months there is probably a more per- 
 manent flow of water found in the Arkansas river in Colorado in 
 May and June than in any other months. The largest flows are 
 found more commonly in July and August, but those flows last for 
 shorter times, being due to storms, and we are not so apt to think 
 of that as the prevailing condition of the river. The largest 
 
THF S'TAl'lC OF COLORADO FT AL. 
 
 673 
 
 amount of water is taken out when the needs are greatest and when 
 the supply is greatest. The needs in the Arkansas valley run 
 
 2233 from early in the spring until rather late in the fall, for fruit 
 trees especially, and they can begin to irrigate as soon as the 
 
 spring opens, which in places in that valley is very early, so that 
 they irrigate a great deal of the year, nearly every mouth of the year, 
 more or less. Of course if the supply of water is scanty the extent 
 of the supply is the limit to the amount they can take. The amount 
 of water needed during May and June is more than during almost 
 any other month. At that time nearly all of the crops need irriga- 
 tion, except for rains. There is all of the alfalfa acreage, wheat 
 acreage, and other cereals, and those crops form the bulk of the 
 acreage, so that the demands for water in quantity are greater dur- 
 ing those months than any others. Now, the demands are greater 
 there partly as a reflex action of the conditions mentioned. Crops 
 which require water only late in the season will be planted only so 
 far as they are reasonably sure they may have water. Those crops 
 are largely money making crops, so that if they were sure of more 
 water in the later seasons they would plant more acreage 
 
 2234 there and less crops requiring water early in the season. 
 During the spring and summer months when there are flood 
 
 flows or when there is a large normal flow in the river a great part 
 of this water is withdrawn from the river and applied to irrigated 
 lands along its course in the State, and these irrigated lands to which 
 water is applied may be considered as acting as reservoirs. They 
 store up the excess water when so applied ; and that which comes 
 back to the river comes back more gently and scattered over a 
 greater period of time, or at least quite a large portion of it does. 
 It then is supplying constantly more water to the river. The water 
 that has been applied during the flood periods in the summer comes 
 back somewhat later, the length of time depending upon the dis- 
 tance of the land from the river, and thus the tendency is to pro- 
 duce greater uniformity in the flow of the stream, and by 
 
 2235 producing greater uniformity it produces a more constant 
 supply in the stream. The amount of return waters on the 
 
 Arkansas river from Canon City to the State line, as I have said, is 
 about two hundred cubic feet or a little over per second of time. 
 There is a fluctuation from year to year, and some fluctuation is to 
 be expected. This amount of return water is not likely to diminish 
 as time goes on. An examination of the conditions and a compari- 
 son with other conditions on the Plalte and the Poudre would indi- 
 cate that it might be expected to increase. On the Poudre it has 
 increased nearly 50 per cent, within the past fifteen years, and on 
 the Platte more, I think. Thus, to be specific, on the South 
 Platte in 1889 the total gain to Crook was 564 feet. Crook was then 
 practical^' the end of irrigation. Measurements were afterwards 
 taken to the State line and usually, or at least very frequently, the 
 river was found to lose between Crook and the State line. As 1 said, 
 
 43—7 
 
m 
 
 (THE S^ATF OF KANSAS Vfe* 
 
 there was no irrigation between Crook and the State line. 
 223G So the amount of 464 cubic feet could be taken as the extreme 
 amount of return water at that time. In 1902 the gain 
 down to that point — to Julesburg — was 803 feet, not quite doubling, 
 but considerably more than fifty per cent., and while there has been 
 some fluctuation in the immediate year, yet as a whole there is the 
 evident tendency to increase. 
 
 There is no ditch or canal in the State of Colorado taking water 
 from the Arkansas river or any tributary of that stream which be- 
 longs to or is operated by the State of Colorado. I know of one ditch 
 within the Arkansas River drainage which was partly constructed 
 by the State. There have been bills passed for two ditches on the 
 western slope, outside of the Arkansas drainage, neither of which 
 ditches has been constructed. One has been turned over to 
 
 2237 the United States, and as to the other, I think nothing was 
 ever done concerning it. The ditch spoken of in the Arkan- 
 sas basin was never built, that is, never completed. It is at least in 
 a State of suspension. There was a projected ditch, the purpose of 
 which was apparently as much to give labor to convicts as it was to 
 give water to the lands below, and possibly more, and that ditch has 
 never been put in a way for carrying water, nor anywhere near, and 
 so far as I know it has been abandoned. Sometimes people discuss 
 it, but I have never heard much serious discussion of it. I know of 
 an effort having been made in the last legislature, in 1903, to secure 
 an appropriation to continue work on this ditch, which was defeated. 
 The ditch was projected to take water from the Arkansas river in 
 the Royal gorge or Grand canon a few miles above Canon City. 
 The first few miles of the line is an exceedingly precipitous, broken 
 
 up country, all rock, and one in which it is exceedingly diffi- 
 
 2238 cult to construct, and exceedingly expensive. Then for a 
 number of miles it crosses the “ hog-backs,” a series of in- 
 clined ridges with deep gulches or grades, and that is a very difficult 
 and expensive country through which to construct a ditch. I think 
 this ditch was something like 70 miles in length. I have never been 
 over the line, but I think not more than two or three miles of this 
 ditch was constructed. I have seen where the convicts worked on it 
 adjacent to the penitentiary — some excavations and one tunnel. 
 I have crossed the line of the ditch below and have never seen any 
 indications of it in that vicinity. So that as far as I know the work 
 was confined to a very short distance. It was never completed for 
 any distance so that water could be gotten into it from the river. It 
 would necessitate the expenditure of a large sum of money to put 
 the ditch in shape to get water in it from the river. The work done 
 
 on this ditch was done several years ago, I think about 1890, 
 
 2239 and there has really been nothing done on this canal since 
 the early ’90’s. The demands on the river in the locality 
 
 where this ditch was projected, from existing ditches, are such that 
 1 have never seen where such a ditch as that proposed would get 
 any water except possibly from floods. 
 
THE STATE OP COLORADO ET AL. 
 
 675 
 
 As to reservoirs, the State has appropriated at different times some 
 moneys from the internal improvement fund to construct reservoirs. 
 The State appropriates from the same fund money to construct 
 wagon roads, artesian wells and things of that kind, as a means of 
 aiding the communities and supplying local needs. There was one 
 reservoir built at Monument, one at what is known as Boss 
 
 2240 Lake, in Chaffee county, and one in Las Animas county. 
 Those are all that I think of in the Arkansas water shed. 
 
 None of these are large reservoirs. We have the exact area of the 
 Monument, but at present I would have to give it by estimation. I 
 would suppose it might cover 60 to 80 acres. The Boss Lake reser- 
 voir is also small. The other one, in Las Animas county, near 
 Trinidad, I have been told has never had any water in it, though I 
 do not know that of my own personal knowledge. While these res- 
 ervoirs were built under the supervision of the State engineer, yet 
 as soon as they were constructed the management and responsibility 
 for them, except the police responsibility, were out of the hands of 
 the State, and therefore I have no further knowledge of their con- 
 ditions. They have gone into the hands of the county commission- 
 ers of the counties in which they are situated, just as they 
 
 2241 have the charge of the maintenance and expense of roads 
 which may be built by the State through those counties. The 
 
 water for these reservoirs is obtained from the tributaries on which 
 they lie, from the flood waters principally. They are allowed to 
 store water in just the same way as any other reservoir in the 
 State is. They take their turn in just the same way. After 
 the water is stored the reservoir is under the charge of the water 
 commissioner so far as turning out the water is concerned, and 
 he can turn the water out to supplement the supply of water in 
 the stream. In the case of the Monument lake, near Monument, a 
 little above Colorado Springs, that supplies the Fountain. When 
 the water is low in the stream the water in the reservoir is turned 
 out and helps to increase the supply and makes it available for irri- 
 gation or any other purpose. The water is generally stored when 
 there is an abundance in the stream and turned loose when the 
 stream is low. This serves to equalize the flow of the stream. 
 
 2242 There are no private irrigation rights in these reservoirs. 
 They are simply reservoirs which store the water in flood 
 
 times and turn it out in times of scarcity. 
 
 Speaking now of ground water, or what is commonly called by 
 the citizens of Kansas “ underflow,” I will state that I have made 
 investigations of this ground water or the water which is found un- 
 derneath the surface of the soil lying along the sides on the north 
 and south of the Arkansas river in its course through Colorado and 
 Kansas, and I know of other investigations of the same subject hav- 
 ing been carried on. There was a special investigation by Congress 
 some thirteen or fourteen years ago that was entitled “ The Artesian 
 and Underflow Investigation.” The artesian investigation, which 
 
THE STATE OF KANSAS VI 
 
 was the beginning of that, was clue to the bill in Congress 
 
 2243 passed in 1890, and I was a member of that investigating 
 committee. At the next session of Congress it developed into 
 
 the artesian and underflow investigation, there having been subse- 
 quent investigations of certain phases of the matter, as by the Geolog- 
 ical Survey, through which Mr. Schlichter has made certain in- 
 vestigations. I attended the hearings in this case in Kansas dur- 
 ing the past summer, 1904, and there heard references made bv the 
 witnesses to what was called the underflow and noticed that many 
 of these witnesses said the source or supply of the underflow, which 
 was claimed to be many miles in width and to extend across 
 
 2244 the State of Kansas, came from the Arkansas river. Speak- 
 ing of my own investigations and those made by others, with 
 
 which I am familiar, I will say that during the underflow investi- 
 gations of 1891 and 1892 there were lines of levels run trans- 
 versely to the Arkansas river in Kansas. There were also others 
 run across the Platte river in Nebraska where similar supposi- 
 tions had been held as to the ground water or what was termed 
 sometimes “ sheet water ” and sometimes “ underflow.” These lines 
 of levels showed the surface of the soil, and at different places where 
 wells were dug the distance down to water was measured, and then 
 this was platted in the form of a map or diagram, copies of which I 
 have here. Now, in almost all of those cases it was shown very dis- 
 tinctly that the water rose as you passed away from the river — that 
 the water had some relation, it might be said, to the surface of the 
 soil. It approximately followed the contourof thesurface. As you 
 get out on high lands it is deeper to water, and as you get in the low 
 land it is not so far to water. So it led, perhaps naturally, to a com- 
 mon belief through that country that the water was at a level with 
 the river. That idea gave, roughly speaking, some indication as to 
 how deep they would strike water, but actually the levels were 
 higher than the river in almost all cases. I myself had some lines 
 of levels of a corresponding character run, and there are 
 
 2245 others that are now in progress which we are making, but 
 the indications so far are entirely, as would have been antic- 
 ipated from a careful comparison of the conditions, so as to indicate 
 that the water rises as you run away from the river, or at least as 
 you run away from the immediate bottoms and it becoms higher. 
 Now, the water runs down hill and follows the slope underground 
 as it does above ground. I mean it follows the surface of the water ; 
 that is the water runs down hill and down hill would be measured 
 by the slope of the water surface and not the slope of the top of the 
 ground. So that if the inclincation of the water is in any particular 
 direction it would indicate there is a tendency for the water to flow 
 that way. Hence if the water rises in a given direction it does not flow 
 in that way, and this particular instance would show that the water 
 was not running away from the river. The notion has been a very 
 
 prevalent one, and there are some conditions there that have 
 
 2246 made it perhaps notan unnatural supposition. My attention 
 was directed to it in this artesian investigation of 1890 because 
 
THE STATE OF COLORADO ET AL. 
 
 677 
 
 Mr. J. W. Gregory of Garden City, Kansas, was in that investigation 
 and I made his acquaintance at that time and knew his ideas. He 
 has generally been thought to be the originator of the notion, and 
 until hearing the testimony of Colonel Murdock at Wichita I sup- 
 posed he was. At any rate he attracted my attention ; and I knew 
 the views of others connected with the investigation — Mr. Nettle- 
 ton, Prof. Hav of Kansas and others — and knew the data as it was 
 obtained, and its trend, and their conclusions, so that my attention 
 has been somewhat attracted to that notion from that date. I have 
 given some attention to the facts as I have found them, and it was 
 in connection with that idea that the cross-section levels were taken 
 under the direction of Mr. Nettleton of the underflow investigation. 
 Most of them were made by Mr. Follett. I have a blue-print 
 
 2247 marked Defendant Colorado’s Exhibit 24, which is a tracing 
 of the diagram in the United States report of the underflow 
 
 investigation of the United States Department of Agriculture, 1892. 
 It is Senate Executive Document 41, 52d Congress, first session, and 
 the diagram is from part II of that report, appendix Nos. 10, 11 and 
 12 of the report. There are three sets of diagrams on this map, two 
 figures or diagrams constituting a set. The first two relate to Great 
 Bend, reading from the top; the second two relate to the Garden 
 City line, and the bottom two to the Dodge City line. Each set, 
 
 2248 then, consists of a map of the country traversed by the sur- 
 vey, showing the section lines and locations of wells, railroads, 
 
 rivers and streams. The principal line in each case shows the pro- 
 file of the country drawn to scale, showing its ups and downs, and 
 therefore the irregularity of the upper line shows variations of the 
 surface, and the scale attached shows the amount of those variations. 
 At different intervals on that line are small lines running down from 
 the surface, with cross hatchings. Those show the locations of wells 
 found in that surve}^, and the cross hatchings show the level at 
 which water is found ; hence the height of that horizontal line below 
 the surface shows the level of the water as found at that time. At 
 the middle or practically so the Arkansas river is shown. On the 
 first line at Great Bend it will be noticed that the water level rises 
 materially and prominently as you pass to the south. On the north 
 the amount of rise is less evident, although there is a rise of a few 
 feet as you go to the north, and at that place a hill is passed and 
 you get into the valley on the other side. As the ground rises the 
 water rises. That is the Great Bend line. The plat just below the 
 surface of the Great Bend section is the map of the country indicated 
 by the profile above. Little dots show the line of the survey, so 
 that the survey comes through the center line of this diagram and 
 interprets, then, the points shown above, showing their rela- 
 
 2249 tive locations. Now, with the Garden City line the same 
 facts are shown. The Arkansas river in that case is a little 
 
 to the right of the center and the water is shown by cross hatchings. 
 As we pass to the north there is arise of water over that in the river. 
 In passing a number of miles to the north the increased elevation 
 
078 
 
 THE STATE OF KANSAS VS. 
 
 is quite apparent. To the south it is not so apparent on this dia- 
 gram. 
 
 Now, on the Dodge City line we have a corresponding diagram 
 shown here, the rise to the south being evident while that to the 
 north is not so much, but in the depression a few miles to the north 
 it is not so apparent. Those were taken from the Government re- 
 ports and from those by Mr. Follett. On this diagram north is to 
 the left of the map and south is to the right. 
 
 (Defendant Colorado’s Exhibit 24 offered in evidence. Objec- 
 tion.) 
 
 2250 This Exhibit 24 is a true and correct reproduction of the 
 diagram shown in the Government report from which it was 
 
 taken. I myself have been out a number of miles from Garden 
 City and Dodge City, to the north in both cases, and the country as 
 I know it agrees with this profile. I have had occasion to compare 
 geological and topographical maps and these are substantially the 
 same so far as the surface is concerned. Of course the distance to 
 the water would not be obtained from the topographical maps. 
 
 I also had lines of levels run and am having others run at the 
 present time. I have here a cross-section of the valley at Rocky 
 Ford, Holly, Las Animas and Lamar. These are on two sheets. 
 One sheet has the Rocky Ford cross-section, and this sheet is De- 
 fendant Colorado’s Exhibit 25. It shows the corresponding data 
 that was shown in the previous exhibit, 24, for a line across the 
 Arkansas valley at Rocky Ford in the State of Colorado. 
 
 2251 This map was prepared from actual surveys made under my 
 own direction this fall. The upper line shows the contour of 
 
 the country; the lower diagram is a map of the region chrough 
 which the line was run and indicates its location. The distance to 
 water is shown in the same manner as prevails in the previous ex- 
 hibit. The river is near the middle of the diagram. To the left 
 the water is near the surface at the points marked wells 10 and 9, 
 and also near the edge of the diagram at well 11, which is a consid- 
 erable distance above the river. The squares shown on the diagram 
 represent differences in level of one hundred feet. In Exhibit 24 
 the vertical scale there is such that two horizontal lines represent 
 one hundred feet. 
 
 Recurring to Exhibit 25, as we go to the south from the Arkansas- 
 river the water likewise rises, showing the same general feature that 
 I have mentioned as characteristic of this country and in fact 
 
 2252 of all countries. There are at isolated points wells that were 
 in existence, and the height of the water level was deter- 
 mined by measuring down to the water in those wells already there. 
 On both sides of the river on this line shown on Exhibit 25, as we 
 proceed away from the river, the level of the water rises. 
 
 (Defendant Colorado’s Exhibit 25 offered in evidence. Objection.) 
 
 The next map is one of similar character and shows similar pro- 
 
THE STATE OF COLORADO ET AL. 
 
 679 
 
 files of a line run across the Arkansas river at Holly and one 
 
 2253 at Lamar, and also at Las Animas, in Colorado, all three on 
 the same sheet. This map is marked Exhibit 26. This map 
 
 was prepared from information secured by parties sent out by me 
 this fall with instructions to run the lines at the places that are 
 indicated on the map and to determine the surface of the ground 
 and its elevation at various places along the line so as to make the 
 contour, and wherever a well was found, to measure from the sur- 
 face of the ground down to the surface of the water, so that it could 
 be platted in this form. The map is the representation of those sur- 
 veys. It shows the surface of the water and the surface of the ground 
 as so determined. The lower diagram of each pair shows in Ex- 
 hibit 25 a map of the country so as to identify the location 
 
 2254 of the line and of the various wells referred to. In each case 
 the river is shown, and the surface of the water in the river, 
 
 and the surface of the water in the wells, both north and south, so 
 far as the lines went. In the Las Animas profile the water is shown 
 to rise both north and south of the river. On this exhibit, 26, the 
 squares show one hundred feet vertically and half a mile horizon- 
 tally. The cross-section at Lamar was run north of the river and 
 not south of the river at that place and shows a very decided rise of 
 water there. We did not run the line south at that point because 
 we learned of no available wells. The same was true at Holly ; the 
 line was run to the north and not to the south. 
 
 2255 Speaking of the valley comparatively, in Colorado and 
 Kansas, as to the particular matter now under consideration 
 
 I will sav that the valley flattens out somewhat at places in Kansas. 
 It is a marked trough in the western part of Kansas, as at Dodge 
 City, which is shown on one of these profiles. In some other places 
 the valley as a whole is flatter. Aside from a difference in degree I 
 would expect to find the same general conditions as to the water 
 level in eastern Colorado and in Kansas, except that this difference 
 in elevation, indicating a rise as you pass away from the river, I 
 should expect to be rather more marked as a rule in Kansas than in 
 Colorado, because the rainfall is greater in Kansas than it is in Colo- 
 rado, and in those regions where not affected by irrigation at least 
 the amount of water available to soak into the sub-soil is greater and 
 consequently the change in the level of the ground water would be 
 more evident in Kansas or wherever the rainfall is greater than 
 
 2256 it would be in eastern Colorado where the rainfall is scanty. 
 
 We are making other surveys of the character of these in 
 Kansas which are not yet ready to present in the form of maps. 
 We are still carrying on the investigations as to this question of 
 ground water in Kansas. We have not had sufficient time since 
 being advised of the position of the Kansas witnesses in reference to 
 this matter, and since having funds made available for the work, to 
 complete it throughout Kansas. The subject of the ground water 
 along the Arkansas valley has been the subject of some investiga- 
 tion by measurements, and consequently has been mentioned in 
 
680 
 
 THE STATE OF KANSAS VS. 
 
 various reports at different times. Since the idea struck the western 
 part of Kansas that there was such a thing as an underflow, or sheet 
 water as it was called frequently and indifferently, the conditions 
 there were such as to keep that notion somewhat persistently 
 
 2257 in mind, and it has been mentioned in various Government 
 reports. It is a subject that has been sometimes spoken of in 
 
 Kansas reports and also by other people who were interested in the 
 action of water beneath the surface. Generally, similar conditions 
 were found on the Platte. I have already mentioned the underflow 
 investigations of the United States. The first congressional report 
 was issued in 1891 and was Senate Executive Document No. 53, 2nd 
 session, 51st Congress. It might be well to add to what has been 
 stated as to the general action of water on these uplands that where 
 the rain falls upon the surface of ground that is fairly absorbent a 
 certain amount of it will pass into the ground, but how much may 
 be a matter of uncertainty. As it falls in light rains a great 
 
 2258 deal of it evaporates, but some of it does sink down into the 
 lower ground. That forms, in a humid country, and in a 
 
 country of little rainfall to a less extent, a mass of standing water ; 
 but in a country like the plains, underlaid with gravel, the water is 
 generally found in the gravel, so that it has given the impression of 
 sheet water as it actually rises and falls very much as the surface of 
 the ground does. The only outlet for that water is its slow passage 
 down hill, and its passage is exceedingly slow. The rate of move- 
 ment of this ground water depends upon the size of the gravel 
 or particles and upon the slope, but it is exceedingly slow. It may 
 be perhaps put in round numbers at a mile per year. That is far 
 above the average, but is a convenient number to remember. Now, 
 its passage is very slow, but it covers quite a large area of move- 
 ment. That is, the cross-section area in which the water is moving 
 may be quite large. When a well is sunk into that gravel the water 
 runs in from the sides. It may run in quite freely. People very 
 frequent^ think that a well is inexhaustible. I have heard them 
 say that a well was inexhaustible, that it would water fifty head of 
 cattle. Their power of exhaustibility is rather limited. But it is a 
 very common expression. The water would flow faster as the slope 
 of the water surface became greater, and so as water is pumped 
 
 2259 out the surface of the water in the well is depressed. The 
 slope is increased, and it may run in quite fast. That is, the 
 
 surface of the water in the well may not be depressed a large amount, 
 yet notably increase the slope, and therefore a rapid inflow would 
 not be any indication of the slow movement of the water at a mod- 
 erate normal slope. If you double the slope of the water in the soil 
 its speed is twice as fast. That water would then be moving 
 down hill, whichever way that was. As its movement is exceed- 
 ingly slow, the quantity of water in cubic feet per second actually 
 moving would not be very large, or at least not nearly so large as 
 the popular notion has made it seem, and the supply of this water 
 would come from the rainfall so far as the rainfall is absorbed in 
 
THE STATE OF COLORADO ET AL. 
 
 681 
 
 the ground. How much that is is a matter partly of conjecture. 
 We know there is some. The more absorbent the ground the larger 
 percentage of rainfall will go in. Thus, with a sandy surface, sand 
 hills and otherwise, a very large percentage of the water will be 
 absorbed. This is shown by the fact that there are practically no 
 streams or run-offs from sand hills, and water is very fre- 
 
 2260 quently found in sand hills close to the surface. Professor 
 Hayworth, the State geologist of Kansas, who was also a mem- 
 ber of the irrigation commission of Kansas and has prepared the 
 reports on the State geology of Kansas, estimates that four or five 
 inches — (objection). But these conclusions of Professor Hayworth’s 
 have been embodied in an official report, the title of the book being 
 “ Report of the board of irrigation survey and experiment for 
 
 1895-6 to the legislature of Kansas.” The statement of the 
 
 2261 four inches which he makes at one place I do not find just at 
 this moment, but 1 find this related statement on page 93 
 
 under the head of “ Geology of underground water : ” 
 
 “ It may be stated at the beginning that it is believed a large pro- 
 portion of the water comes directly from the precipitation on the 
 plains, a proportion which perhaps can never be accurately esti- 
 mated.” 
 
 At the bottom of page 94 is this statement : 
 
 “ To sum the whole matter up, it may be stated as an approxima- 
 tion that upon the average, year after year, from four to five inches 
 of water penetrates the ground and joins the ground water. This is 
 not uniform, for the rains are not uniform, and the absorbent powers 
 of the surface vary greatly so that it is possible for some areas to 
 absorb but little while others absorb large quantities.” 
 
 Now, Mr. W. W. Follett, who was connected with this underflow 
 investigation, and who made the actual surveys under the direction 
 of Mr. Nettleton for the underflow investigation, prepared a paper 
 for the irrigation congress at its meeting in Denver in 1894. This 
 paper was upon “ The underflow of the Great Plains,” sum- 
 
 2262 ining up his conclusions at that time. This is published in 
 the official proceedings of the third national irrigation con- 
 gress held at Denver, Colorado, September 3-8, 1894. His paper 
 begins on page 34. (Objection.) The quotation I will make is from 
 page 36, at the middle of the second column. He is speaking of the 
 amount of the underflow and of its connection with the rainfall, and 
 its source of supply. He states : 
 
 “ When you recollect that the mean annual rain-fall of this region 
 is about 16 to 18 inches and that at least one-third and probably 
 one-half of it comes in very sudden showers when a large percent- 
 age of the fall quickly runs off, you will see at once that the assump- 
 tion that 20 per cent, to 25 per cent, of the annual precipitation 
 goes to the subterranean water supply, is likely to be a near approxi- 
 mation to the truth.” 
 
 Twenty to twenty-five per cent, would mean from three to four 
 inches on a 16-inch rainfall. 
 
G82 
 
 THIS STATE OF KANSAS VS. 
 
 Iii the same volume or journal there is also a paper by 
 
 2263 Professor Robert Hay of Kansas, who was connected with the 
 same underflow investigation. He was the geologist of that 
 
 investigation, and prepared papers at different times for the United 
 States Geological Survey. (Objection.) On page 39 he says : 
 
 “ Beneath it (that is, the fertile soil of the plains) nearly as exten- 
 sive a deposit is found of gritty mortar beds, and elsewhere a con- 
 glomerate but everywhere porous soil, holding the water that reaches 
 it from the surface till it is given up as springs in the highest ra- 
 vines and draws of the river valleys or is invaded by the drill of 
 the well sinker. The water it contains is very abundant. This is 
 the sheet water of the mid-plains uplands.” 
 
 Mr. W. W. Follett is now consulting engineer of the International 
 Boundary Commission of the United States and Mexico, appointed 
 by President Cleveland first, I think, and reappointed, and 
 
 2264 has been connected with the international water boundary 
 for a number of years between the United States and Mexico. 
 
 He was present at the time of the Elephant Butte case. He was an 
 engineer and practiced in the West for a good many years and was 
 then engineer on this artesian and underflow investigation and did 
 a great deal of field work at that time. He now lives in El Paso, 
 Texas. 
 
 Professor Hayworth has discussed this subject as geologist of the 
 irrigation board of Kansas, and has a number of things that apply 
 to it. In speaking of the source of the water and its relation to the 
 rainfall he speaks especially of the heavy rainfall on the upper Ar- 
 kansas at Syracuse, Kansas. This is on page 93 of the same report 
 of the irrigation board of Kansas, and describes extensive storms that 
 took place there and flooded the region. At the bottom of the page 
 he speaks of Bear creek, and that portion I might read, or a 
 
 2265 part of it. (Objection.) Here is almost the same thing from 
 the official report of the University Geological Survey of 
 
 Kansas by the same man. The first one was the State irrigation 
 board’s report, which was provided for by the action of the State 
 legislature of Kansas and appropriations made by that legislature. 
 I now read from the book last mentioned at page 93 : 
 
 “ During this same week Bear creek, to the south of the Arkansas 
 river, a stream usually entirely without water nine-tenths of the 
 year, was out of its banks nearly the whole time. To properl) 7 un- 
 derstand the conditions here a few words must be said in explana- 
 tion. Bear creek rises in southwestern Colorado, passes across the 
 Kansas line and ordinarily entirely disappears in the sand hills 
 south of Hartland. Throughout a part of its course it has a channel 
 with a bank on either side but in the vicinity of Hartland the banks 
 gradually diminish in height until they entirely disappear and the 
 channel of the stream a hundred miles or more in length simply 
 ceases to exist. On this particular occasion the rains in eastern 
 Colorado and western Kansas produced a great flood in Bear creek. 
 
THE STATE OF COLORADO ET AL, 
 
 683 
 
 The following "^description is taken from a letter received from 
 Judge W. E. Hutchinson, of Ulysses, Grant county, Kansas : ” 
 
 2266 It describes the flood, its quantity of water and behavior. 
 It is incorporated in his subject, and that forms the substance 
 
 of it. The point of value, I think, in this connection is showing the 
 amount of water that comes down there and disappears in those 
 sand hills. I may omit the first part which describes the flood and 
 go to the description of Bear creek at its lower end : 
 
 2267 “ Bear creek has a well defined channel from the State line 
 to the sunk well at the south side of the sand hills, seven 
 
 miles south of Hartland. This well, which is simply a depression in 
 the sand hills and in the coarse sand, was never known to have been 
 dry until about two years ago. The level of the water, however, in 
 this depression, is usually about six feet below the bottom of the 
 channel at that place. From the sunk well on through the sand 
 hills is a winding channel, which one would scarcely think was 
 intended for a channel of a stream until he should see water 
 coursing through it, as we did this summer. The water ran 
 past the sunk well — the usual terminus of the stream in times 
 of ordinary floods — clear through the sand hills to the last 
 ridge of them next to the Arkansas river, through which 
 ridge there seems to be no opening whatever for its escape. 
 It spread out east and west in irregular shapes, as it could 
 find openings between the ridges of the hills, for probably a 
 mile and a half or two miles wide, and it is safe to say was in some 
 places fifteen to twenty feet deep, as is now made very apparent by 
 the marks washed out and the drifts left on the sides of the hills. 
 Not a drop of the water escaped into the Arkansas, and after the 
 25th of July, when the flow down the channel ceased, the water 
 stood and remained in the channel and elsewhere in the sand hills 
 the same as it did in the basins and lagoons on the uplands. It was 
 not long, however, in drying up in the main channel of the stream. 
 Out on the uplands, especially in basins, the water stood for several 
 weeks. In the sand hills there is water standing now (December 
 27, 1895) in some places. Eleven years ago there was a similar 
 overflow of Bear creek which spread over the uplands, we are told 
 by the cattle men who were then in this country, and ran past the 
 sunk well into and nearly through the sand hills, as at this time.” 
 
 In the University Geological Survey of Kansas, volume II, page 
 23, there is one more sentence that is given by Professor Hayworth. 
 He says : 
 
 “ During times of heavy rains in eastern Colorado and western 
 Kansas Bear creek carries a large volume of water, which it pours 
 out upon the high plains of northern Grant county, and into the 
 sand hills along the south side of the Arkansas river.” 
 
 The White Woman, on the north side of the Arkansas river, is a 
 stream of much the same character and terminates in the 
 
 2268 plains up near Scott City. It has no visible outlet into the 
 river and does not come as near to the main river. 
 
684 
 
 THE STATE OF KANSAS VS. 
 
 Many of the witnesses for Kansas spoke of wells, the water in 
 which they believed to be on a level with the water in the river. 
 Many of the wells mentioned by the witnesses were stated by them 
 to be filled up, and so we have not been able to measure the water 
 in them. We have made some measurements and run lines of 
 levels and dug wells in places to determine the slope of the water 
 surface in a portion of the regions mentioned by those witnesses. 
 The area of country, however, covered by the witnesses, was so great 
 in length along the river and in distances from the river, that we 
 have not been able to cover it all as yet. We have not yet 
 
 2269 tested any particular well of those mentioned. We have 
 been able to determine as to the levels in the location of some 
 
 of these wells by contour maps of the Government. There was a 
 well mentioned in Scott City where the witness stated that the water 
 was about twenty-eight feet from the surface, and which he thought 
 was on a level with the Arkansas river. The level of Scott City is, 
 as I recollect it, two hundred and seventy-five feet, by railroad sur- 
 veys, according to Gannett’s Dictionary of Elevations, above Garden 
 City, and Garden City is a little above the river. In the vicinity 
 of Colwich and Mount Hope, Kansas, we have run lines of levels 
 and have sunk wells down to the water. (Objection.) I have 
 directed where the wells should be sunk, how they should be sunk, 
 and at what particular points, and what methods should be used in 
 making the tests, and the persons doing the work were acting 
 
 2270 under my direction and reporting to me. It would be a phys- 
 ical impossibility for me or any other one man to make these 
 
 investigations as they should be made and complete them within 
 the time limit within which Colorado or any party to this suit has 
 been limited in the taking of evidence. 
 
 In regard to this underflow, so far as we have been able to get at 
 the facts from the measurements we have made, I have thought that 
 the witnesses were mistaken in their supposition that the ground 
 water was level with the river. (Objection.) 
 
 2271 Referring to Gannett’s Dictionary of Elevations, which I 
 now have at hand, I find the difference in elevation between 
 
 Scott City and Garden City is one hundred and thirty-five feet. 
 The elevation of Garden City is given as 2,836 feet, and of Scott 
 City as 2,971 feet, as shown by Gannett’s Dictionary of Altitudes, 
 which is recognized as a standard authority. It is published by the 
 Interior Department of the Government. From the investigations 
 which I have made, the Government cross-section maps and 
 
 2272 all other information now at hand, I have arrived at the con- 
 clusion that that which was commonly called “ underflow ” 
 
 by the witnesses in Kansas during the hearing in this case, and 
 which I have designated as “ground water,” draws most of its sup- 
 ply from the rainfall, while some of it comes from the river. (Ob- 
 jection.) In these conclusions in that respect I agree with 
 
 2273 Professor Hayworth of Kansas, and also with Hay, Follett 
 and others. While I am not now prepared to give a conclu- 
 
STATE OF COLORADO ET AL. 
 
 B8S 
 
 siVe answer on the matter as to how far the river has any material 
 or marked influence on the ground water, I will say that we have 
 found at a distance of a few hundred feet that the ground water has 
 risen subsequently to a rise of water in the river. That this is due 
 to the actual flow of water from the river is, however, not evident, in 
 fact I think it is not the case except to a very partial degree. At a 
 little greater distance we have found wells ceased to show the influ- 
 ence, and in fact the effect from the river decreases as the distance 
 increases. As to the effect of the river upon the water in the holes 
 so close to the river, some of the water from the river, as it disap- 
 pears, flows sidewise and acts partially as a dam to the water run- 
 ning into the stream, just as the salt water acts upon the fresh water 
 flowing into the sea. The slope of the country, generally speaking, 
 is toward the river, and the ground water in the soil would be mov- 
 ing down hill, which is the way the water slopes; that is, toward 
 the river and with the river, and when the river would rise 
 
 2274 that would act as a dam in backing up this water that is 
 moving toward the river, and that for a short distance back 
 
 would be evident in holes which had been sunk to water in the 
 soil. We are still carrying on these investigations as rapidly as our 
 facilities will permit. 
 
 Speaking of the effect which the using of water for irrigation of 
 lands along the Arkansas river in Colorado has upon the ground 
 water along that river and lying back from it in Kansas, I will say 
 that the water being applied for irrigation in Colorado is tending 
 toward the river the same as if there were an excessive rainfall. It 
 is, then, keeping the sand saturated, whether it is in the river or in 
 the sands outside of the river, and if that water is going down- 
 
 2275 ward it of course is adding to that supply. If the water flow- 
 ing in the Arkansas river in Colorado were allowed to go 
 
 straight on through Colorado along the channel of the river I don’t 
 think it would make any difference in the water level in Kansas 
 when you get away from the immediate banks of the river. From 
 my own investigations and the investigations conducted under my 
 direction and those of others it is not my opinion that what is 
 spoken of as the “ ground water ” or “ underflow ” in Kansas is water 
 flowing in well-defined channels ; it is simply water oozing through 
 the layers of sand and percolating through those interstices. Even 
 immediately under the bed of the stream it would depend on what 
 we would call an underflow as to whether the water there found 
 could be so designated, but there is nothing that I have ever seen 
 that would make that appear to be a channel in the sense that you 
 sometimes find in a more humid country or elsewhere where 
 
 2276 you may dig a well and cut a vein of water. Some might 
 call the water immediately under the channel of the bed of 
 
 the river, as at Dodge City, an underflow, but I mean that the water 
 would be moving down hill, and the surface slope is down the river, 
 so that under all the laws of gravity there would be an exceedingly 
 slow movement there as there would be on the side. It is a move- 
 
686 
 
 Mti STATE OP KANSAS VS. 
 
 ment, though it is slow — a few feet per day. It is a flow that is 
 under the surface, where there is sand and gravel. I do not even 
 think that it would be any better defined in its direction and bound- 
 aries than the water you would find underneath the surface after 
 you went back from the channel of the stream. The water flows in 
 a way which is indicated by the surface, whichever way the fall is, 
 and the fall is as definite outside the stream as it is there 
 2278 under the stream. From investigations we have made we 
 have the level of the ground water at several places along the 
 Arkansas river in Kansas. I had a line of wells run at different 
 places at as near right angles to the river as the roads would 
 7779 permit ; then to ascertain the height of the ground water wells 
 have been bored down below the level of the ground water and 
 the height of the water in these wells was determined at that time and 
 at regular intervals afterwards. (Objection.) At Mount Hope, Kansas, 
 a line was run north and south for a distance of six miles. This is a 
 little west of Wichita and covers or goes into a portion of that delta 
 lying between the main river and Little Arkansas river. While the 
 height of the water at the river on August 26, 1904, was 3.49 feet, at 150 
 feet north the level was 3.63 feet, from the same datum. At 
 
 2280 660 feet, which is one-eighth of a mile, practically, 3.46 feet was 
 the height of the water ; and at 2,640 feet, about half a mile or 
 
 approximately, the surface of the water was 5.03 feet, or one a half 
 feet higher than at the river. At one and one-eighth miles the sur- 
 face of the water was 7.14 feet, which was three and one-half feet 
 higher than at the river. At two and five-eighths miles it was 11.49 
 feet, or eight feet above the water in the river. At 4J- miles it was 
 15.11 feet; at 6J miles it was 17.63 feet. Opposite Colwich another 
 line was run across the river, north. This crossed the river a mile 
 east of Colwich because of a bridge being convenient at that place. 
 It then passed through Bentley and passed by places which some 
 witnesses have testified about. On August 27, 1904, while the height 
 of the water in the river was two feet, 200 feet north of the river it 
 was 1.78 feet, an amount slightly less, though the observation at 
 that point was defective because of the newly sunk well and because 
 the water had not been given sufficient time to-rise. At § of a mile 
 the height of the water was 3.29 feet; at If miles the ground 
 
 2281 water was 6.80 feet; at 3J miles it was 11.70 feet, or 9.7 feet 
 above the river. At 4J miles it was 14.95 feet, or nearly 13 
 
 feet above the river; at 6f miles it was 13.70 feet, or nearly 12 feet 
 above the river. The well 3J miles from the river is close to the 
 town of Bentley and is at the corner of the tract mentioned by Mr. 
 Hansen, a witness of the complainant at Wichita. We are running 
 still other lines and taking measurements and levels that are not yet 
 completed. 
 
 I will explain a little more full} 7 what I meant as to the river water 
 acting as a dam to the ground water or sheet water as it comes in 
 from the outlying country to the river. 1 mentioned heretofore that 
 the water flowed down hill where the “down hill ” might indicate 
 
1'MR OR COLORADO AL. 
 
 687 
 
 the surface of the water underneath the ground and not the sur- 
 face of the ground. If, then, from any cause, the water is 
 
 2282 raised at the mouth or the mouth is elevated, it decreases the 
 slope and the flow is correspondingly checked. Now, that 
 
 decrease of slope might be effected by water acting practically as a 
 dam at the mouth as well as by anything else. So it is rather a 
 check. The term “dam” maybe misunderstood as it is notan 
 actually impenetrable obstruction. But it has the effect of decreasing 
 the flow of the water, and so long as the water at the mouth of the 
 river, for instance, is higher than the ground water in the adjacent 
 sands, of course there will be a reverse current and the water will 
 flow for the time being from the river into the sands, so that we 
 have the water coming down the adjacent land into the sands and 
 also running from the river back into the same sands. The com- 
 bined action of the two gradually raises the ground wafer both ways 
 in the immediate vicinity of the river. Now, we have numerous 
 observations that illustrate that, and one I have selected this morn- 
 ing, almost at random, from the data I have. I have platted here 
 the cross-section of the ground water at one series of wells at 
 
 2283 different times since the latter part of August. I have here 
 a diagram marked Defendant Colorado’s Exhibit 27. The 
 
 horizontal distances are shown horizontally on the scale and the 
 squares represent one hundred feet horizontally. The distances are 
 shown on the lower line in figures; that is, 200 feet, 400 feet, etc., 
 measured from the river. The vertical scale is exaggerated, as is 
 commonly done in representing a cross-section or profile, and 
 every square represents one-half of a foot. The actual eleva- 
 tions above the assumed reference line are given at each 
 
 2284 side of the diagram, as 1, 2, 3, 4, and 5 represent feet above 
 the reference line. The bank of the river is assumed to 
 
 be at the place marked zero toward the left hand side. Then in 
 this case, in this series of observations, several swells were placed, 
 one at five feet from the river, one at two hundred, one at eight 
 hundred and one at eighteen hundred feet. They are shown 
 by circles on the lines. Our records were made after August 29th 
 daily or semi-daily until practically the first of October, 1904. 
 Records were ag-in made on October 6th and 7th. I have taken 
 the result of those measurements at four different times from Au- 
 gust 29th up to the last of September, and then on October 6th. The 
 reason for my taking them on October 6th and again beginning 
 measurements at that time was because of the high water in the 
 river which came a day or two before that. Dots were made 
 on the paper showing the heights of the water found at those 
 particular times, the dots and lines being drawn through this 
 particular point. They are dotted in different ways, and the date 
 is shown on the diagram. The upper line, which inclines 
 
 2285 to the right, shows the height of the ground water on August 
 29, and the inclination of the line shows the inclination of the 
 
 ground water. In other words, it was higher at the well eight hun- 
 
TttE STATE OF KANSAS VS. 
 
 688 
 
 dred feet from the river than it was at the river itself. (Objection.) 
 The heights of the water in the intermediate wells are shown at the 
 intermediate points, and in each case at the first date they are higher 
 than the water in the river. The second line shows the correspond- 
 ing fact on September 1st, the third line for September 5th, the next 
 line for September 8th, and the bottom line for September 12th, and 
 all of them show a slope of the surface of the ground water toward 
 the river. Then on October 6th, which immediately followed the 
 flood of early October, we have a corresponding series of measure- 
 ments made at the same wells. On that day the river was 
 
 2286 high — at an elevation of four and a half feet, very nearly. 
 The first well shows a rise, so does the second, while the third 
 
 and fourth have been going down continuously during the month. 
 They do not show any effect from the elevation of the river. The 
 diagram then represents the statement previously made, but the 
 water from outside is still sloping towards the river as it is between 
 wells at eight hundred and eighteen hundred feet. The water is 
 still sloping from the outermost well to the next to the outer- 
 most well, although from there to the river the slope is a 
 reverse slope, from the river to the well. This reverse slope 
 is accounted for by the rise in the river which took place at 
 that time from exceedingly heavy rains — floods in the river 
 above. As the river would go down the ground immediately ad- 
 jacent to the river, which has been filled by the water running from 
 the river, again drains out. That fact was shown by the five lines 
 which are on the diagram at present, the five lines showing a gradual 
 lowering of the surface of the ground water or water table 
 
 2287 from September 1st to September 12th, and also for the in- 
 termediate days, but they are not shown, on account of the 
 
 confusion it would cause in the diagram. On August 29 the well 
 1,800 feet from the river had water in it which was 1.8 feet higher 
 than the water in the river. On September 1st it was 2.10 feet 
 higher; on September 5 it was 2.26 feet; on September 8 it was 2.13 
 feet ; on September 12 it was 2.07 feet. These heights are the heights 
 above the water in the river. That shows that the river fell faster 
 than the water in the region outside. 
 
 (Defendant Colorado’s Exhibit 27 offered in evidence. Objection.) 
 
 2288 Referring to crop conditions and the production of lands 
 along the Arkansas river in Kansas, I will state that we have 
 
 at hand the complete argicultural reports of the State of Kansas, 
 which we have examined. The Solomon river is one from which 
 no water is taken for irrigation unless in an extremely small quan- 
 tity, and I think there is none at all ; and this is also true of 
 
 2289 the Smoky Hill river. These streams rise in Kansas and 
 there course is almost entirely in that State. I have taken 
 
 from the statistics of the State of Kansas, as prepared by their State 
 board of agriculture and published in their annual or biennial re- 
 ports, the production of the various staple crops, and made calcula- 
 
tHE STATE 0# COLORADO ET AL. 
 
 m 
 
 tions for the purpose of comparing the increase or loss in production 
 per acre in the counties in Kansas along the Arkansas, Smoky Hill 
 and Solomon rivers. These statistics are gathered by the secretary 
 of the board of agriculture of the State and are made quite com- 
 plete. I believe they are published under authority of law in the 
 State of Kansas, and it is so stated in the volumes. I have com- 
 pared the productions of corn and of wheat in the counties along 
 the three river valleys mentioned and have especially compared 
 the counties that were similarly situated with respect to longitude, 
 so that they were under essentially the same conditions as to 
 
 2290 rainfall and most physical conditions, only that one set of 
 counties was in the Arkansas valley, one set was directly north 
 
 in the Solomon valley, and one set directly north in the Smoky Hill 
 valley. I have produced three graphic maps of the figures taken 
 from those reports. First, of the winter wheat. (Objection.) The 
 figures shown on these various diagrams are accurately taken from 
 the Kansas reports to which I have referred and the computations 
 are correct. The three small prints or tables give in figures the re- 
 sults and actual figures from those reports, and at the bottom of each 
 column is given the volumn of the Kansas report and the 
 
 2291 page or pages from which they are taken. These have been 
 gone over twice, so that I think it is a correct transcript of 
 
 the figures given in the reports. These tables are arranged to show 
 the yield for each year and each county, and taking the Arkansas 
 river counties, starting from Hamilton county on the west, we have 
 here the yield of winter wheat as given in that report for the first 
 year when that figure is given, which in that particular case was 
 1888. So for Kearney, Finney, Gray and on down to Cowley 
 county on the south border of the State. Nearly all of the reports 
 from which these were taken were biennial reports. Starting 
 from 1877 the State seems to have printed its reports biennially ; 
 before that annually. The same kind of a diagram is given for the 
 Solomon River valley, that is, for the different counties that are in 
 the Solomon River valley, including both forks. This table starts 
 with Thomas count # y, Sheridan, Decatur, Norton and other counties 
 down to Ottawa; and similar figures are given on the next 
 
 2292 diagram of the counties in the valley of the Smoky Hill. 
 Attached to these three diagrams is a graphic map reducing 
 
 by that method of illustration the facts shown by the figures in the 
 three diagrams just described. The diagram on the map attached 
 shows two things — it first shows those tables in a graphic form by 
 lines instead of figures, showing the ups and downs from year to 
 year; and secondly, it shows the location of these counties by a map 
 on the side of the diagram. It shows the State of Kansas, and 
 shows these various groups outlined with a little heavier borders so 
 as to indicate what counties are referred to in speaking of groups 1, 
 2 and 3. The graphic map to which I have just referred and the 
 three diagrams constitute different parts of a whole and should be 
 kept together as one exhibit. 
 
 44—7 
 
690 4RE2 STAl'K ok KANSAS Vs. 
 
 2293 To explain more fully this map and diagram, 1 will staid 
 that the groups of counties which are shown in each of these 
 
 drainage basins as groups 1, 2 and 3 were so arranged as to bring 
 together the substantial facts shown by the tables without too much 
 confusion. The counties in the extreme western part of the State 
 in each of the valleys — the Smoky Hill, the Solomon and the 
 Arkansas — were termed group 1. That set of counties which had 
 an eastern border practically in the same north-and-south line — this 
 took in the eastern border of Gray county and Finney county in the 
 Arkansas valley. In the Smoky Hill and Solomon valleys it took 
 the counties directly north of this set of counties. Their eastern 
 line was within six miles of being directly north. The second 
 group of counties in the Arkansas valley took in Ford, Kiowa, Ed- 
 wards and Pawnee counties. The second group in the Smoky Hill 
 valley took in the ones directly north as near as could be, that 
 is, Trego and Ellis counties; and on the Solomon river the 
 four counties directly north. The third group was formed in 
 the same way, taking Barton, Rice, Stafford, Reno and Harvey 
 counties on the Arkansas river and the counties similarly 
 
 2294 situated on the Solomon and Smoky Hill. The counties 
 were then grouped and three sets of diagrams made, which are 
 
 shown on the chart. The chart simply represents in graphic form 
 the figures of the table. At the top of the diagram are shown the 
 years. At the left hand of the diagram is shown the number of 
 bushels per acre, so that for instance where a yield of twenty bushels 
 to the acre, say in 1891, is to be shown, the point will be taken at 
 the intersection of the line for 1891 and the line representing twenty 
 bushels to the acre. A line is drawn through the different points 
 representing the yields of the different years, so that the fluctuation 
 of the line up and down shows the fluctuation of the yield of winter 
 wheat, which is represented in this set of diagrams. Hence the 
 three upper lines in the exhibit show the corresponding facts for the 
 three groups of counties called group No. 1 in each of the three 
 valleys. The middle set of three lines shows the corresponding 
 variation in crop yield for the second set of .counties, or Group 
 No. 2, and the third set of three lines shows the corresponding 
 variations of yield for group No. 3. Hence if the lines vary up and 
 down nearly all alike it shows that the yield of crops in the 
 
 2295 three sets of counties, or the three river valleys, varies cor- 
 respondingly ; audit will be noticed in the diagram that 
 
 there is a remarkable parallelism of the lines representing the yield 
 of crops in the corresponding group of counties in the three valleys — 
 that if one runs up so does the yield in the corresponding set of 
 counties in the next valley. The lowest line represents the fourth 
 set of counties in the Arkansas River valley. That is alone because 
 of the fact that there is no corresponding group of counties in the 
 other water sheds. Asa whole, while there is a great variation in 
 the yield, taking the same set of counties through a series of years, 
 it is also evident that the same fluctuations of yield take place in 
 
I'ftH] StfATR OF COLORADO ET AL. 
 
 691 
 
 the other water sheds as in the Arkansas valley ; and as said, the 
 other streams have not been interfered witii by taking water from 
 them for irrigation. They are Kansas streams. These facts would 
 seem to show that whatever causes the fluctuation in the yield of 
 crops in the Arkansas valley has had the same effect on the 
 
 2296 yield in the Smoky Hill valley and in the Solomon valley. 
 (Objection.) 
 
 (Defendant Colorado’s Exhibit 28 offered in evidence. Objection.) 
 
 Three diagrams and a map, marked Defendant Colorado’s Ex- 
 hibit 29, are prepared from the same agricultural reports of the State 
 of Kansas, in the same manner, for groups of counties in the valleys 
 of the Arkansas, Smoky Hill and Solomon rivers, and show 
 
 2297 the same general facts as to the corn crop in those valleys. 
 The diagrams on the same group of counties show remarkable 
 
 2298 similarity. (Objection.) If one goes up, indicating a large 
 crop, so does the corresponding line for the other river 
 
 valley ; and if the crop goes down in one valley it also goes down 
 in the other valleys. They are so remarkably similar that it would 
 make very little difference which one of the diagrams representing 
 the yield was taken — that is, the diagram representing the yield in 
 the Smoky Hill valley is almost identical with that in the Arkansas 
 valley. It makes very little difference so far as the character is 
 concerned. (Motion.) In the graphic map, Defendant Colorado’s 
 Exhibit 28, and also Exhibit 29, if the line goes up it indi- 
 
 2299 cates an increase in production ; if it goes down it indicates 
 a decrease. (Objection.) And as 1 was describing the dia- 
 gram I spoke then of the lines going up or going down. Those ex- 
 pressions would be synonymous with the increase or decrease of the 
 
 yield per acre. (Motion.) 
 
 2300 I am familiar with the general character of the construc- 
 tion of the dams along the Arkansas river in Colorado which 
 
 are used for diverting water from the river into the head works of 
 the various ditches. They are all of the type that would be 
 
 2301 known as a diverting dam. Their purpose is simply to 
 enable the canal to take water at the time when it is needed. 
 
 It is not a storage dam as is a reservoir dam. They are all of them 
 overflow dams or what some would term wiers ; that is, the water 
 runs over the top of the dam. It simply holds the water there to 
 force it into the canal. It does not prevent the water from passing 
 by. It raises the bed of the river possibly a few feet and that is all. 
 Take the Fort Lyon or Amity dam, they carry over their tops all 
 excess of water, as in the case of the recent floods, which ran up 
 into thousands of cubic feet per second. These dams run from 
 three to seven or eight feet in height. When the river rises the 
 surplus water simply proceeds on over the dam and down the river. 
 Then in addition every canal in the State, almost, has a waste-gate. 
 In regulating the in-take into a canal the large amount of water 
 which may be in the river renders it sometimes impossible, almost, 
 
TIIE STATE OF it ANSA & V§L 
 
 to regulate it. There is a set of gates next to the river itself and 
 these can be raised or lowered so as to regulate the water to some 
 extent, but the}' cannot get just the exact amount of water at that 
 place, and so below there is almost always placed a second set of 
 gates which are waste-gates for running back to the river 
 
 2302 the excess of water. These are sometimes combined with 
 sand-gates and sometimes they are in separate struct- 
 ures and sometimes are the same structures. The sand-gates 
 on the Arkansas river are for the special purpose of clear- 
 ing the upper canal of sand. On a sandy river like the 
 Arkansas a great deal of sand is apt to enter the canal and cause much 
 expense in cleaning it out. In nearly all cases these waste-gates are 
 within a half mile of the headgate. They need to be above the 
 rating flume, and with the exception of one or two in the State they 
 all are. When these waste-gates are opened and the water passes 
 through them it goes back to the stream from which it was diverted. 
 In some cases in the State the canals are permitted to run water 
 through the head-gates and back through the waste-gate, even when 
 it does not run down the canal, as a means of keeping them free 
 from sand and keeping the sand from accumulating in front of the 
 gates. That is what sometimes gives rise to the name ‘‘sand- 
 
 gate.” 
 
 2303 Complainant’s Exhibits A-15 to A-38, heretofore intro- 
 duced in this case, consist of tables showing various ditches, 
 
 their priorities, the number of days water has been running in them, 
 and certain other things. They are all of the same general type. 
 They are a portion of the reports prepared by the water commis- 
 sioners, first to the superintendents of irrigation, and then transmit- 
 ted to the State engineer. They are not their complete reports but 
 give the tabulations which they made from the data the}’ had. 
 They obtained the material for these reports from different data they 
 may have had, but in almost no case that I know of in this 
 
 2304 State have they gone into the work of getting these statistics 
 very carefully. In these tables is stated the number of days 
 
 in which water was carried, and there is also a column giving the 
 average amount of water carried during the season in second-feet. 
 The season to which it refers is the season during which water was 
 carried, and the average amount of water is the average amount 
 carried during the number of days which is mentioned and not for 
 the whole reason. In some cases the totals at the foot of the column 
 give the sum of the number of days of all the different ditches, so that 
 in the first table that is before me the totals show 1,693 days during 
 the year in which water was carried, which of course in the sum of 
 the number of days for the series of ditches. The corresponding 
 totals are on almost all of the other diagrams. The group of ex- 
 hibits last referred to does not show nor pretend to show anything 
 like all of the ditches taken from the Arkansas river and its tribu- 
 taries in Colorado. These tables that were submitted are only for 
 districts 14, 16 and 67, I believe. There are a good many other d is- 
 
THE STATIC OF COLORADO ET AL. 
 
 693 
 
 tricts in the Arkansas water shed, some on the Arkansas itself and 
 some on its tributaries. 
 
 2306 Recurring to the movement of ground water in the Arkan- 
 sas valley in Kansas, the slope of the river there is moderate. 
 
 The sand is of fair size, the velocity of the water through the sand 
 is probably 6 to 12 feet per day — on an average perhaps 8 to 10 feet. 
 I have made investigations for the purpose of determining the move- 
 ment of underground water. The experiments which I made prior 
 to this year were largely made as laboratory experiments to get at 
 the laws of flow, and the flow as relating to the slope of the ground 
 surface and the size of the particles — to get the general law — and 
 the results of those experiments have all been published 
 
 2307 some years ago in Bulletin No. 33 issued by the United States 
 agricultural experiment station heretofore referred to. That 
 
 has been used quite extensively in various works and discussions on 
 the subject elsewhere. 
 
 Speaking of the movement of ground water through sand and 
 gravel such as is found in the Arkansas valley in Kansas, if we as- 
 sume a speed of ten feet per day, which is a fair assumption, and 
 probably above the actual fact if anything, then to get at the quan- 
 tity we would need to know the area of the cross-section. If it be 
 considered as half a mile wide and 100 feet in depth, that would be 
 an area of a trifle over six acres in the cross-section, because 100 feet 
 is six rods, practically speaking, and then the quantity of water 
 passing that cross-section of six acres, with a velocity of 10 feet per 
 day, would be 120 acre-feet within the day, for half a mile each side 
 of the river, and this expressed as rate of flow would be supplied by 
 a flow of 60 cubic feet per second of time, and that proportion of 
 discharge would be maintained if you increased the size of 
 
 2308 the cross-section. Then if you took a cross-section half a mile 
 wide and 100 feet deep, assuming the sand and gravel to be 
 
 of the character just mentioned, the discharge would be 30 cubic 
 feet per second of time. I think the rate of travel which I have 
 given for underground water agrees with the results which have been 
 reached by scientific investigators such as C. S. Schlichter of the ex- 
 periment station of Wisconsin and more recently of the Geological 
 Survey. 
 
 Defendant Colorado reserved the right to call this witness later 
 on for the purposes of further examination when the uncom- 
 
 2309 pleted investigations mentioned in his testimony should have 
 been concluded. Further direct examination will be found 
 
 at page 6831 of the record. 
 
 Complainaut also reserved the right to cross-examine the witness 
 at a later date, which is found on page 2566 of the record. 
 
694 
 
 THE STATE OF KANSAS VS. 
 
 2313 T. C. Henky, Denver, Colorado. 
 
 Direct examination. 
 
 By Mr. Hayt : 
 
 I am 63 years of age, reside in Denver, and my occupation is ir- 
 rigation and real estate. I am a native of the State of New York, 
 but I lived in the State of Kansas from 1867 to 1883 at Abilene, 
 Dickinson county, Kansas. During my residence in Kansas I was 
 engaged in the business of farming, real estate, and banking. I lo- 
 cated in Kansas, as I said before, in 1867, and made my first pur- 
 chase of real estate and commenced farming operations the next 
 year, 1868, at Abilene. Those operations in that year were con- 
 fined to breaking operations, and what we call sod crops. 
 
 2314 That year I planted sod corn and potatoes, both on sod land 
 and some old land. The crops were a total failure. The 
 
 cause of that failure was drought and hot winds. During that year 
 the supply of moisture was perhaps 50 per cent, below the average 
 for that section of Kansas and there was practically no precipita- 
 tion after about the middle of June until late in August, conse- 
 quently in August the hot winds occurred and we lost the crops. 
 We also had some grasshoppers, but too late to do any damage to 
 those crops. In that year I had about 200 acres of sod corn and I 
 think only three or four acres of potatoes. Abilene is situatedfin 
 the Smoky Hill valley, and my farming operations reached 
 
 2315 within a mile and a half of the border of the stream. In 
 1869 I farmed the land that was broken the year before and 
 
 made some extensions to my operations. During that year I raised 
 about 200 acres of corn, perhaps about 50 or more acres of oats and 
 a few acres of potatoes, — five acres or so. In that year I had very 
 fine crops of all kinds. It was a wet year. The average precipita- 
 tion was at least thirty or forty per cent, above normal. The pre- 
 cipitation was so great that for instance parts of the Smoky Hill 
 valley were overflowed, and the town of Abilene was overflowed. 
 Consequently there were no hot winds and we had no grasshoppers. 
 In the year 1870 I farmed, in acreage, rather more than the year 
 previous, and about the same quantity of crops and the same di- 
 versity as before. The rainfall was again much below the 
 
 2316 average, about the same as in 1868. The results were about 
 the same — that is, there was a total failure in that 
 
 section of potatoes, spring wheat, and all but very early 
 corn. The prairies in sections of our county and farther 
 west, the same as in August, 1868, burned over in places, 
 it was so dry. 1871 was a wet year. There was not quite 
 as much precipitation as in 1869, but it was a very favorable 
 year for agricultural operations, perhaps one of the most favorable 
 within my experience in Kansas. There were no hot winds and no 
 grasshoppers. Full crops were grown. Probably all together I had 
 
THE STATE OF COLORADO ET AL. 
 
 695 
 
 500 acres under cultivation that year, two thirds of it in corn and 
 the balance divided between oats and potatoes. In 1872, the early 
 part of the year was rather above the average of normal precipita- 
 tion. Later in the season there was a deficiency of moisture 
 
 2317 and consequently the earlier crops were successful. The late 
 corn crop was below the average, but was a fair crop — per- 
 haps half a crop. I had just about the same number of acres under 
 cultivation as the year before. 1873 was very much like the year 
 previous, perhaps, in the earlier months of the season. In the later 
 months of the season there was less precipitation than the year be- 
 fore and corn was a total failure; that is, the corn that matured in 
 August. July corn was a pretty fair crop. The small grain crops 
 averaged fairly well, perhaps about 80 per cent, of a full crop. I 
 myself had no wheat in that year. In 1874 I increased my farming 
 operations. All together I was farming eight or nine hundred acres. 
 I grew 500 acres of winter wheat in 1874. The season was very much 
 below the average in precipitation, and in fact the most disastrous 
 
 year in all my experience in Kansas, because of the lack of 
 
 2318 precipitation, the hot winds, and, later, the grasshoppers. But 
 I raised a fairly successful crop of winter wheat, it being ma- 
 tured too early to be affected by the summer drought, and in that 
 way established the adaptability of that section of Kansas to the 
 growth of winter wheat. It was the introduction, perhaps, of the 
 industry. As the result of my experience as I have detailed it, for 
 several years prior to that time I was convinced that that section of 
 the State, say from Fort Riley westward, was not a corn country, 
 nor was it a spring wheat country, because spring wheat matures 
 later than winter wheat, and consequently that the crops grown 
 theretofore were not sufficiently successful to warrant our claims for 
 that section of Kansas being a desirable agricultural section, and 
 being a large holder personally and also agent for the Union Pacific 
 Railroad Company, which had large bodies of land grant lands for 
 sale, it was a matter of some considerable concern to me as to what 
 
 should be done in order to maintain a living by those whom 
 
 2319 we were proposing to settle, occupy and improve all that 
 enormous territory, and I had already reached the conclusion, 
 
 as I have stated, that some other system of crops or culture should be 
 introduced in order to sustain a population by agriculture successfully, 
 and I began as early as 1871 on those lines and made trips in various 
 parts of the State, and in the eastern section particularly, and here 
 and there I^carne across now and then a small tract of winter wheat. 
 Sometimes it was a failure and sometimes a success; and I collated 
 and compared the experiences of those with whom I bacame 
 acquainted who were so growing wheat and decided by 1873 to 
 engage extensively in the growth of winter wheat and in such a 
 way that it might advertise, if successful, that industry and en- 
 courage western Kansas to adopt the growth of winter wheat, and 
 consequently I selected a particular section of land in the valley of 
 Smoky Hill, nearer the river than my original tract and adjoining 
 
696 
 
 THE STATE OF KANSAS VS, 
 
 the railroad, and broke it in the usual simple way, and seeded it at 
 a different period and in a different way from what had been adopted 
 and practiced, so far as my observation went. This was in the fall 
 of 1873. And as I anticipated, it proved a remarkable suc- 
 
 2320 cess. It was a veritable oasis, and being an extensive field 
 for that new country, located along and adjacent to the rail- 
 road, it attracted the attention and became the advertisement that I 
 had planned for from the start. I may say there was much ridicule, 
 perhaps, indulged in, because the theory was then that fall wheat 
 required a winter climate more severe than that of Kansas. That 
 I proved was not the case, and of course subsequent experience has 
 carried the growth of that sort of wheat, as I have seen, away down 
 into the central part of Texas. By a more severe climate I mean 
 more winter — a lower temperature. The snow fall protects it in the 
 event that because it may be dry in the fall of the year a small 
 growth is obtained, but if an average growth is obtained in the fall 
 it is not at all essential to have any protection by the snow. The 
 snow is valuable simply so far as it contributes to moisture. In 
 
 the spring of 1874 I broke up 1200 acres additional adjoining 
 
 2321 the 500 acre tract, and I seeded that in the fall of 1874. The 
 moisture was very favorable as to quantity and a very fine 
 
 stand of wheat was obtained : The result was that in 1875, as the 
 moisture for that year was above the normal, we had a magnificent 
 crop, the largest yield per acre in all my experience in Kansas. I 
 think the production averaged over 30 bushels to the acre and the 
 price realized was over $1.20 per bushel. There were no hot winds 
 and no grasshoppers that year. All kinds of crops were flourishing. 
 
 In the spring of 1875 I broke up about 2,000 acres additional and 
 adjoining the previous tract and seeded it in the fall of 1875. 1876 
 
 was a very wet year, I think the wettest, with one exception, in all 
 my experience in Kansas, almost too much so for grain. I lost a 
 good deal from overflow and too a rank a growth of straw and a 
 slight trouble with rust. There were no hot winds, therefore, but 
 we had grasshoppers that came in from the northwest in the fall of 
 1876 and affected our seeding. Crops of all sorts were good, unless 
 they were injured by too much moisture. That year I had in the 
 valley of the Smoky Hill about 5,000 acres in crops, almost wholly 
 in winter wheat. During that time I farmed also in various 
 
 2322 valleys in the county on tributary streams. I was farming 
 in the lower Solomon valley and in the valleys of Turkey 
 
 creek, Holland creek, Chapman creek, and Mud creek, which are 
 tributaries of the Smoky Hill, and on the uplands more or less 
 between those streams, scattered over an area of perhaps thirty or 
 forty miles square. I think I was farming besides the tract I spoke 
 of, perhaps four or five thousand acres. Much of that was in corn. 
 The corn was a very fine crop. 
 
 2323 1877 was another year that we would call a wet year, not 
 quite so much precipitation as that of the previous years, as 
 
 I now remember, but a very successful year for agriculturalists.- 
 
THE STATE OF COLORADO ET AL. 
 
 697 
 
 Crops of all kinds averaged rather better than in 1876, even, except in 
 certain sections of our country where the grasshoppers in the previous 
 fall had deposited their eggs and the young grasshoppers hatch- 
 ing out in the spring of 1877 destroyed some wheat crops. Most of 
 the injury, however, to my wheat crop, grew out of the fact that I 
 was compelled to postpond my seeding the fall before until a late 
 period — as late as November — but most of the wheat as it sprouted 
 out of the ground was eaten off by grasshoppers as fast as it ap- 
 peared. The result was that wheat the next spring started late, and 
 the season being wet, it made an enormous growth of straw. But 
 the crop itself was about three weeks late, and as the moisture con- 
 tinued during the season, with mucky weather, the conditions were 
 favorable for the introduction of rust, and the 5,000 acre wheat field 
 that I had in the Smoky Hill valley was really a total failure, 
 
 2324 being struck by the rust, though I harvested it and kept still. 
 That year I had about 8,000 acres of wheat and about 2,000 
 
 acress of corn, and the balance was divided between crops of millet 
 and oats. 
 
 During the year 1878 my acreage in the valley of the Smoky Hill 
 was somewhat increased. I think I raised about 6,000 acres of 
 wheat, possibly 7,000 in that valley, and about 3,000 acres in other 
 parts of the State, and of other crops perhaps 5,000 acres more — 
 possibly about 15,000 acres all together in 1878. It was a very wet 
 year. My recollection is that there was more preciptation during 
 all of the months of the summer that year than any year previous 
 in my experience in the State, and consequently crops of all sorts 
 were very fine. We had no hot winds and no grasshoppers. 
 
 1879 was a dry year — a very disastrous year. I think my farm- 
 ing operations caused me a loss of seventy-five or a hundred thousand 
 dollars. Wheat was almost a total failure, corn was almost a total 
 failure, and other crops were a failure. The failure of the normal 
 sufficient amount of precipitation accounted for most of the 
 
 2325 loss, except as to winter wheat. That grew out of a blight, a 
 disease that we never could understand the cause of, though 
 
 the crop loss was affected somewhat by the extraordinarily dry 
 weather. We had some difficulty late in the fall previous in getting 
 the wheat started early enough, and it was a very dry spring, and 
 the wheat crop was not a success from the very start. Of course the 
 corn was what we would call a failure, though not a complete failure. 
 As to whether my farming operations during that year were con- 
 fined to the valley of the Smoky Hill or extended to other valleys, 
 they were just about the same as I have previously described — less 
 of farming operations in the valley than before and more outside. 
 I began to sell off some of my valley land. When I say “ more 
 outside ” I refer to the uplands and the valleys of the tributary 
 streams. I went out into one or two of the counties adjoining. In 
 1880 I did much less farming. The precipitation was again much 
 below normal and our wheat crop averaged low and corn was pos- 
 
698 
 
 THE STATE OF KANSAS VS. 
 
 sibly much below average. Prices were low and the results 
 
 2326 were not at all satisfactory. 
 
 1881 was rather a better year, with more moisture. The 
 crops were better hut not up to the average, in our section. My farm- 
 ing operations were steadily being reduced as to acreage. I was 
 steadily acquiring land but not farming it so much personally. The 
 reason I reduced my farming operations and still kept acquiring 
 more land was because of the failure and risks involved because of 
 periodical droughts and lack of precipitation. 
 
 In 1882 my farming operations, in acreage, were much diminished, 
 hut it was a very successful year. We had more moisture. All 
 crops were good, including corn, etc. I was farming that year in 
 the Smoky Hill valley proper, probably not more than three or four 
 thousand acres, and outside of that valley, in the district that I have 
 spoken of, about 3,000 acres additional, or possibly 4,000. 
 
 2327 My farming operations in 1883 were about the same as in 
 1882 — possibly less in the valley but a little greater out on 
 
 the uplands and in the tributary valleys of the Smoky Hill. I am 
 not quite so sure now as to that year. M}^ recollection is that it was 
 a very favorable year, with a full average supply of precipitation 
 and full average crops, but perhaps not quite so much so as the year 
 before. In 1883 I removed to Colorado, and in 1884 1 had reduced 
 my farming operations, giving them no personal attention, or barely 
 any, and consequently I do not remember the years from that time 
 on in Kansas. In 1884 I was back and forth, but not very much of 
 my time was spent in Kansas. Since 1884 I have frequently visited 
 Kansas. I retained large interests there for several } r ears. After 
 that time until 1888 I closed out practically all my interests in the 
 State. 
 
 2328 As to the settlement of the country in and about Abilene, 
 Kansas, we had the greatest immigration in that section of 
 
 Kansas in 1870 that I ever saw in a single year, in fact prior to that 
 time but very slight immigration had been secured. At that time 
 the great stretches of the uplands were homesteaded and practically 
 taken for a distance of 50 miles on either side of Abilene. The set- 
 tlement was checked by the drought of 1870. The favorable years 
 of 1871 and 1872 revived the immigration, of course most of it going 
 much on beyond us, because oar lands were occupied. The failures 
 of 1870 checked immigration, in fact we lost thousands of families 
 in our section of the State; but after the success of 1875, in 1876 
 and 1877 the immigration poured into that part of Kansas and as- 
 sumed enormous proportions, which lasted for two or three years ; 
 but the failures of 1879 and 1880 checked it again and thousands of 
 families moved out; and then the successes of 1882,1883, and, I 
 think, 1884, resulted in still larger immigration than ever before, 
 the settlement pushing out to the extreme borders of the State ; but 
 the failures of 1885 and 1886 resulted in driving out of the State 
 again thousands and thousands of families, although it did not affect 
 particularly that portion of Kansas where I had lived. 
 
THE STATIC OF COLORADO ET A L. 
 
 699 
 
 2329 Abilene is located in Dickinson county, and I was familiar 
 with the crops generally in Dickinson county and other coun- 
 ties in that vicinity, during the years covered by my farming opera- 
 tions of which I have just spoken. I made a very close study and 
 observation of the matter. The crops in other portions of the county 
 and in other localities were about the same as I have described my 
 own crops. West of a line drawn along that degree of longitude, 
 so far as settlement extended, the crops were a failure, and 
 rather more of a failure as you went farther west, as there was 
 less precipitation, and not so much of a failure as you proceeded to 
 the east. As you approached the Missouri river the precipitation 
 
 steadily increased and had its corresponding effect upon 
 
 2330 agricultural productions. I think it will be found upon in- 
 vestigation that the results I have described as to production 
 
 in the various years named will correspond exactly with the experi- 
 ence in other valleys, including the Arkansas valley. I have no 
 question but that my experience as described is an index to the ex- 
 perience of the farmers generally in that vicinity. 
 
 As to the location of Abilene, it is almost exactly, as I remember, 
 due north of Wichita. It is just below the mouth of the Solomon 
 river, which is a tributary of the Smoky Hill. The Smoky Hill 
 valley extends east of Abilene to Fort Filey, where the Smoky Hill 
 river joins the Republican, the two together forming the Kaw 
 river. The Smoky Hill water shed lies northwesterly from Abilene 
 and I think it is almost wholly within the state of Kansas. So is 
 the Solomon water shed. The valleys are of about the same 
 character as at Abilene so far as surface appearance — sub-soil 
 
 2331 and surface soil — is concerned, and so far as native forests are 
 concerned, only narrower so far as size is concerned, until 
 
 you approach the upper sources of the water shed. The Smoky 
 Hill never goes absolutely dry. I have never seen it dry below a 
 point about a hundred miles from its mouth at Fort Riley, but of 
 course during those protracted droughts the stream is a mere rivulet. 
 The Solomon is never dry, or I have never seen it dry, below a 
 point 75 miles above its mouth. The Saline river, another tributary 
 of the same character as to the water shed and climatic conditions 
 and soil conditions, is a permanent stream at about 60 miles above 
 its mouth, a point about 20 miles west from Abilene, and its water 
 shed is entirely within the state of Kansas. The beds of these 
 streams are sandy, about the same as the Arkansas, the banks not 
 quite so high. The sub-soil is perhaps a little heavier — that is, a 
 little more clayey, in these valleys than in the Arkansas, until you 
 get to certain places in the Arkansas near the uplands, but 
 
 2332 not where there are sandy stretches bordering the Arkansas. 
 The general conditions are about alike — I mean referring to 
 
 the Arkansas, Smoky Hill, Solomon and Saline water sheds and 
 valleys. These streams do not extend as far west into the arid 
 region as the Arkansas. They are practically confined to the 
 Kansas line and there is practically no irrigation from any of them. 
 
700 
 
 THE STATE OF KANSAS VS. 
 
 I have seen two or three very small ditches up the Saline and 
 Smoky Hill. They hardly amounted to an ordinary Colorado farm 
 lateral. In the years when we had poor crops and also in the 
 years of total crop failure that failure extended up to the margins 
 of the streams in every instance. 
 
 I think I introduced the cultivation of winter wheat on a large 
 scale in the State of Kansas. My farming operations were conducted 
 on what we call the contract system, which I originated, and I in- 
 troduced in connection with that system of culture the header and 
 the first steam thresher — the modern means of handling large 
 
 2333 areas of grain. I first became acquainted with the Arkansas 
 valley in 1868 where Hutchinson now is. From 1868 until 
 
 1883 I didn’t see the valley of the Arkansas river more than a dozen 
 times. As to the years in which I saw that valle}', I am unable to 
 particularize, perhaps, beyond two or three years. I saw the river, 
 as I said, in 1868. I saw it in 1871, 1874, 1877, and 1880. I may 
 not have these dates quite correct. I am sure from what I saw and 
 from what I learned from those of whom I inquired that the crops 
 on the Arkansas generally during the years of which I have spoken 
 as dry years and wet years corresponded almost identically 
 
 2334 with my experience as detailed in the Smoky Hill valley. 
 The farmers in Kansas in that locality, including myself, de- 
 pended entirety upon the rainfall for the growing of crops. We 
 knew nothing about irrigation. There was very much discussion 
 during those years with reference to the rain belt extending west- 
 ward. I heard of this almost from the time when I first went to 
 Kansas. The theory was discussed because it was not very far from 
 the disastrous experience of 1860, which was probabty, aside from 
 the grasshoppers, the most droughty year Kansas has seen since the 
 settlement of that State, and consequently people coming into the 
 State, having heard that, naturally would be more or less appre- 
 hensive, influenced by what they knew or had heard of the story of 
 that failure. It began to be asserted, because there were several wet 
 years following 1860 or 1862, that there need be no further appre- 
 hension as to a repetition of the experiences of the past and that the 
 
 grass was changing, growing out of the fact, as it was claimed, 
 
 2335 that the buffaloes were driven away and that the impacting 
 of the ground by countless buffaloes would no longer con- 
 tinue and it would open up the pores of the soil and the 
 precipitation instead of running off would be absorbed, and that 
 precipitation, being so preserved, would increase the evaporation, 
 and that evaporation in turn would increase the precipitation, 
 etc, etc., until agriculture would be as safe as in the older 
 sections; that the building of railroads, the stretching of telegraph 
 lines, the planting of trees and the plowing up of the prairie — all of 
 these operations would result and had resulted in increasing the 
 rainfall ; and I will state frankly that I had no doubt that that was 
 true for a few years after I first moved into the State. This was 
 used as an inducement to promote immigration to and the settle- 
 
tri-IE STATE OF COLORADO Ktf AL. 
 
 901 
 
 ineftt of the country, very extensively, especially by the railroad 
 companies in the sale of their land grants, and all of us boomed 
 Kansas with that idea, who had land far sale. As I have stated, I 
 had no doubt for some years of the correctness of that theory, 
 233G but in 1876, at the request of the officers of the State his- 
 torical society, the boards of county commissioners of the 
 respective counties in Kansas were invited to select some person to 
 write up a historical sketch of their counties so that such sketches 
 might be deposited with the State historical society for future use. 
 The county commissioners of Dickinson county designated myself. 
 It devolved upon me, therefore, to inquire into the existence of those 
 who had first settled our county, reaching back about ten years, and 
 very much to my surprise, so far as the information could be relied 
 upon as obtained, I found it was a fact that for the decade beginning 
 with 1856 and ending with 1866 the rainfall was as a matter of fact 
 much greater than from 1866 to 1876, reversing the increasing rain 
 belt theory. Of course I was disappointed at the result and I em- 
 bodied my conclusions in my sketch, which was delivered on the 
 Fourth of July, 1876, and was published, and invited a criticism or 
 criticisms that encouraged or forced me in self defense to make a 
 still further study of the whole subject, and I finally reached 
 
 2337 the conclusion that if anything could be proven with respect 
 to the rainfall of Kansas it could be proven that there was a 
 
 diminishing rainfall and that there had been no flood — and there 
 has not been one since — equal to that of 1844. The valley of the 
 Smoky Hill in that year was submerged continuously for about 30 
 days from one bank to the other, and the flood at Kansas City was 
 about 12 feet higher at the point where the Union depot is located 
 than it was last year, 1903. The historical sketch which I have pre- 
 pared, as stated, I saw for the first time since it was deposited in the 
 archives of the historical society about a month ago. I know that 
 it is there and is accessible at this time to any parties wishing to in- 
 vestigate it. It was published in the Abilene Chronicle and is among 
 the files of the State historical society. I can give from 
 
 2338 memory the concrete statement made by me in this article. 
 I stated therein that it was a certain fact that the total precip- 
 
 3838 itation — I quote from memory : 
 
 “ Certainly the aggregate rainfall for the past ten years does 
 not equal that of the ten years from 1856 to 1866.” 
 
 2339 About the year 1880 there began to be more attention paid 
 to the need of irrigation in that locality. I myself put in 
 
 some wind mills and experimented on the uplands particularly, but 
 no practical results ensued of any value. It was too expensive. 
 The lift was too great. The quantity of water obtained in the fact of 
 the enormous evaporation, the hot winds, the dry atmosphere and 
 the parched ground made practical results of any value im- 
 
 2340 possible. We ran some levels with the idea of taking water 
 from some of the tributaries of the Smoky Hill, but we found 
 
 it impracticable to irrigate in this way. About that time some 
 
702 
 
 ftlifl STAl’JS OF KANSAS Vg. 
 
 Kansas people, particularly Senator Plumb, as I remember it, began 
 irrigation development in a way out in the Garden City section of 
 the Arkansas valley. The question of irrigation was quite generally 
 discussed, especiall}' following the } T ears 1879 and 1880 and wide 
 publication was given it. The press talked about it and par- 
 
 2341 ties who were interested in it personally in a public spirited 
 way were devising some plan to remedy the moisture supply, 
 
 and for those reasons quite a propaganda was maintained ; but so 
 soon as a couple of years of normal or super-normal moisture ap- 
 peared, the proposition of irrigation was dropped. 
 
 The people of that portion of Kansas or some of them were at that 
 time passing into Colorado and back again and the method 
 
 2342 of irrigation in Colorado was discussed. During those years 
 from 1876 up to 1884 and 1885 I know that there were very 
 
 many people who visited Colorado from that section of Kansas. 
 The idea of irrigation was pretty generally promulgated, discussed 
 and considered by our people as a remedy if possible, for the failures 
 caused by droughts in the past. By that time the method of irri- 
 gation in the raising of crops in Colorado and other States of the 
 arid region began to be quite generally known and spoken of in 
 that locality. The result, however, of attempts at irrigation in 
 that particular section of the State of Kansas was practically noth- 
 ing. 
 
 In the Arkansas valley the conditions were rather more favor- 
 able. 
 
 2343 • I know that a number of ditches were constructed in west- 
 ern Kansas for the purpose of irrigation looking to the Ar- 
 kansas river for their water supply and that those ditches were not 
 
 generally used for a number of years. The principal diffi- 
 
 2344 culty for the first decade or so after those enterprises were 
 projected was the impossibility of finding customers for the 
 
 water. People would not buy the water. They would secure large 
 tracts of land, but were unwilling, and unable financially, 
 perhaps, — and were unfamiliar with the subject anyway, — to buy 
 the water, and that state of affairs has continued more or less up to 
 the present time with respect to the canals in the Arkansas valley, 
 pretty well toward the eastern section of the valley that is irrigated. 
 
 As to the settlement of the country in and about Lamar, Colorado, 
 as I now recollect it, it was at the close of the wet period, beginning, 
 perhaps, about 1885, when the rain belt theory was most prominent 
 and had resulted in crowding settlement to the Colorado Kansas 
 line, people began to move into the Arkansas valley in the State of 
 Colorado, being encouraged to do so by those who were favoring the 
 rain belt idea, and particularly encouraged by the Santa Fe Rail- 
 road Company, and a settlement under the auspices and direction 
 of Kansas promoters and Kansas interests began at Lamar, Colorado, 
 on the line of the Santa Fe railroad. I can mention some of 
 
 2345 those who were connected with that immigration in Colorado. 
 One was Mr. Frost, who was connected with the land depart- 
 
^HK STATE OF COLORADO ET AL. 
 
 70S 
 
 Irieiit of the Santa Fe Railroad Company ; another was Colonel 
 I. R. Holmes, a land and colonization promoter, who I think origi- 
 nally laid out the town of Garden City, Kansas. As I now remem- 
 ber, Colonel Holmes was the most active man in connection with 
 the movement that built the town /of Lamar, Colorado, co-operating 
 as he always did ver}r closely with the officials of the Santa Fe 
 railroad. He had special facilities for colonizing rates, concessions, 
 etc. The Santa Fe Railroad Company at that time had large land 
 grants undisposed of on the Arkansas river within the State of 
 Kansas. Those lands in Kansas were riparian to the river, 
 
 2346 many of them. Colonel Holmes passed by those lands and 
 fostered this immigration in Colorado. That was -after the 
 
 ditches were taken out within the State of Kansas, or after many of 
 them had been constructed. 
 
 2347 I left Kansas and came to Colorado in 1883. The real rea- 
 son for this change was the drought failures in Kansas — 
 
 crop failures — that I had experienced. Crops in Kansas, were so 
 uncertain that I looked to a country white the water could be 
 under control. I found that conditions did not improve as time 
 progressed, so far as Kansas was concerned, where I was, nor that 
 irrigation operations were any more successful than they had been 
 before. The failures were too frequent and too serious for me to 
 continue the large operations that I desired to conduct and had 
 been conducting there. I became interested in irrigation in 
 Colorado a few weeks after I located here. The first irrigation 
 enterprise that I became connected with was at Grand Junction, 
 Colorado, in the Grand valley. 
 
 As to my experience in building ditches in Colorado and else- 
 where, I will say that the Grand valley enterprise covered about 
 40,000 acres of land and the canal was built proportionately. 
 
 2348 I raised the money and practically completed the system, 
 involving an outlay of about $400,000. Since that time there 
 
 has been expended perhaps a couple of hundred thousand dollars 
 more on the canal system itself. The canal is about forty feet wide 
 on the bottom, with a carrying depth of about five feet, and it is 
 about forty miles long. The distributing canals had perhaps a total 
 length of two or three hundred miles. 
 
 The next enterprise I became interested in was at Fort Morgan, 
 Colorado, called the Fort Morgan canal, donw on the south bank of 
 the South Platte river, about seventy miles below Denver. It waters 
 the Fort Morgan flats, in the center of which is the town of Fort 
 Morgan. The canal is about thirty miles long and about twenty 
 feet wide on the bottom at the head-gate, with a carrying depth of 
 about four and a half feet, and irrigates about fifteen thousand 
 
 2349 acres of land. It cost all together about three hundred and 
 fifty thousand dollars. 
 
 The next enterprises I was identified with were in the San Luis 
 valley, namely, the Del Norte canal, the Citizens canal, the Empire 
 canal, and the San Luis canal. 
 
704 
 
 iiifi st at k o Kansas V9. 
 
 The Del Norte canal, the first one, is about 30 feet wide on the 
 bottom and 110 feet wide on the top, carrying about 7 feet of water, 
 with a grade of about seven feet to the mile for the first few miles — 
 the largest canal in the United States so far as the quantity of water 
 or its carrying capacity is concerned. It has cost all together, with 
 the distributing canals, perhaps three quarters of a million dollars, 
 and has a total length including main canals and distributing later- 
 als, of perhaps five hundred millions. 
 
 The Citizens canal is about forty miles long and fifteen feet wide 
 on the bot-om with a carrying depth of about six feet, the laterals 
 amounting in the aggregate to about three or four hundred miles, 
 and cost between four and five hundred thousand dollars. 
 
 The Empire canal is farther down the San Luis valley. It is also 
 taken, as the previous canals are in that valley, from the Rio 
 
 2350 Grande river. It is 56 feet wide on the bottom, with a carry- 
 ing depth of about six feet. It is about thirty-five miles long, 
 
 the main canal, and has about one thousand miles of distributing 
 canals under it. The total cost was about seven hundred thousand 
 dollars. 
 
 The San Luis canal, from the same river, was fifty feet wide on 
 the bottom, possibly, with a carrying capacity of about five or six 
 feet, and a total mileage, including main and distributing canals, of 
 about three hundred miles, and cost, all together, about four hun- 
 dred thousand dollars. These canals were all constructed under my 
 management. They were all built in 1884 and 1885, except some 
 of the distributing canals needed for the use of farms brought under 
 cultivation subsequently. 
 
 The next system was the North Poudre, taken out of the north 
 fork of the Poudre river, northwest from Fort Collins. At the time 
 I was connected with it, it was a canal thirty feet wide on the bottom 
 and about sixty miles long, and, with distributing laterals, 
 
 2351 aggregating a couple of hundred miles. It was a very ex- 
 pensive undertaking. The original cost was about five hun- 
 dred thousand dollars, and it has been extended considerably since 
 constructed. 
 
 The Pawnee canal is located in the lower South Platte valley, on 
 the north side of the Platte river, adjoining and tributary to the 
 town of Sterling, in Logan county. It is about forty feet wide at the 
 headgate and carries about five feet of water in depth, and the main 
 line was about thirty miles long with perhaps one hundred or one 
 hundred and fifty miles of distributing canals. It cost about two 
 hundred thousand dollars and was built in 1884. 
 
 In 1884 we also — Uncompahgre canal, now called the Montrose 
 canal, in Montrose county, the water being taken from the Uncom- 
 pahgre river. It is about thirty miles long and has perhaps two hun- 
 dred miles of distributing canals, a very expensive proposition, hav- 
 ing cost more than a half a million dollars. 
 
 In 1887 I undertook my first pr-ject in the Arkansas valley. The 
 canal is what is now known as the Fort Lyon canal. It is taken out of 
 
TfiE STATE OE COLORADO ET At. 
 
 7 05 
 
 the Arkansas river on the north side about two miles northwest from 
 the town of La Junta, and in the course of two years it was 
 
 2352 extended so that the extreme length of the main canal was 
 one hundred and seventeen miles. It has been subsequently 
 
 enlarged, but not under my administration. At the time it was 
 constructed it was about fifty feet wide on the bottom, with a carry- 
 ing capacity and depth of something over six feet, and cost, orig- 
 inally, between four and five hundred thousand dollars. 
 
 My next enterprise in the Arkansas valley is the Bob Creek canal, 
 known as the Colorado Land and Water Company’s canal, the head- 
 gate of which is on the north side of the Arkansas river, about 
 eighteen miles below Pueblo. As I recollect it, it is a canal about 
 fifty feet wide, carrying a depth of perhaps five feet of water, and 
 cost, under my administration, about three hundred and fifty thou- 
 sand dollars. It was carried about sixty miles, and waters Sugar City 
 and the territory tributary to it. It has subsequently been enlarged 
 and is a much more ambitious enterprise now. 
 
 In 1890 I also undertook the Otero canal enterprise in the Ar- 
 kansas valley. The canal is taken out of the south side of the 
 Arkansas river at a point about forty miles below Pueblo. The 
 main canal is about sixty-six miles long, and has a width at the 
 headgate of about thirty-five feet, carrying four and a half to five 
 feet in depth, and cost about two hundred and fifty to three hun- 
 dred thousand dollars. 
 
 2353 I have now mentioned all the main canals I have con- 
 structed. I have been identified with some smaller ones, but 
 
 comparatively small. 
 
 There were some Kansas people interested with me in the con- 
 struction of some of these canals, in fact most of the capital employed 
 in the Fort Lyon construction at the time I was connected with it 
 was Kansas capital or capital belonging to the friends of Kansas 
 people, including, principally, Topeka people — the Mulvanes, Sena- 
 tor Burton and others less prominent I think there were no Kansas 
 people identified with any of the others there; but during all these 
 years the people of Kansas were taking a lively interest in the ques- 
 tion of irrigation. I think the people of that portion of the Arkansas 
 valley in the State of Kansas were more active and more aggressive 
 in furthering irrigation development and talking irrigation than the 
 people of perhaps any other State in the arid West. The 
 
 2354 Santa Fe .Railway Company was particularly active. They 
 went so far as to employ Judge Emery of Lawrence as a 
 
 general solicitor on the subject of irrigation. He first acquainted 
 himself thoroughly with the subject, and on nearly all occasions ap- 
 peared advocating irrigation. A man by the name of Gregory was 
 perhaps iu soma ways even more active than Judge Emery. Judge 
 Emery was a resident of that part of arid Kansas, and Judge Emery 
 was employed because of his ability as a speaker, while Judge Greg- 
 ory had material interests at stake. E. R. Moses was another active 
 man, very prominent in the work, chairman of the executive com- 
 45—7 
 
^THE Sl’ATE OP 1 KAMsAS V*S. 
 
 m 
 
 mittees of the various congresses and active in that way. Mr. MoSe3 
 lived in Great Bend, Kansas. 
 
 These irrigation congresses that I have spoken of were conven- 
 tions held for the purpose of discussing and furthering irrigation 
 interests as a general proposition, and as applied particularly to the 
 respective localities from whence representatives appeared. 
 
 2355 There was such a congress held in Denver, one in Ogden, 
 one in Salt Lake City and one, I think, in Los Angeles, one 
 
 in Phoenix, Arizona, and in other places. Kansas people invariably 
 attended these conferences and advocated the cause of irrigation, 
 with large and influential delegations. I think the idea which has 
 culminated in the reclamation fund originated with Kansas people. 
 This discus-ion and activity on the part of the people of Kansas in 
 favor of irrigation covered the decade beginning I should say about 
 the year 1890 and culminating in the act of Congress of 1902. T 
 don’t think Kansas has displayed so much interest, at any 
 
 2356 rate in the sessions of the irrigation congress held during 
 the last two or three years, as it did ' prior thereto. (Ob- 
 jection.) 
 
 The Grand river, of which I have spoken, rises in the main Rocky 
 Mountain range in Colorado and drains the west slope and runs di- 
 rectly west into the State of Utah (objection), thence westerly into 
 the Colorado river, bordering the Territory of Arizona and the States 
 of Nevada and California, and runs for a short distance 
 
 2357 through the Republic of Mexico and empties into the gulf of 
 Mexico. (Objection.) Four of the ditches which I have de- 
 scribed take their water from the Rio Grande river, namely, the 
 Rio Grande canal, the Citizens canal, the Empire canal, and the San 
 Lnis canal in the San Luis valley. (Objection). The Rio Grande 
 rises in the various Rocky Mountain ranges which form the water 
 shed source of the Rio Grande in Colorado. It thence flows south 
 through the Territory of New Mexico to the State of Texas and is 
 the boundary line between Texas and old Mexico, and finally reaches 
 
 the gulf of Mexico at Matamoras. (Objection.) 
 
 2358 Three of the ditches I have described take water from the 
 South Platte river. They are the Fort Morgan canal, the 
 
 Pawnee canal, and the North Poudre canal. The latter receives it- 
 supply of water from one of the tributaries of the South Platte river. 
 (Objection.) The South Platte river rises in the Rocky Mountain 
 range in Colorado and flows northeasterly and easterly into the State 
 of Nebraska, and there, in conjunction with the North Platte, forms 
 the main Platte river, flowing through the State of Nebraska and 
 into the Missouri river. (Objection.) 
 
 All the streams that I have mentioned take their rise in the mount- 
 ains of Colorado and pass outinto other States or Territories. I think 
 this is true in every instance of the steeams from which 
 
 2359 waters are taken for irrigation in the State of Colorado. I 
 can state pretty approximately the amount invested in canals 
 
 for irrigation within the State of Colorado. I think it is between 
 
O'Hfi STAtfi OF COLORADO fit AL 
 
 70? 
 
 sixty and seventy-five millions of dollars. That includes, of course, 
 the main canals and the entire distributing canal systems ot the 
 State in full. I would estimate the improvements on the lands re- 
 claimed by the canals of Colorado to be worth about one hundred 
 million dollars. I think there are about two and a half million 
 acres under the various canals in this State. I think those 
 
 2360 lands would average fifty to seventy-five dollars an acre, in- 
 cluding orchards, of course. If Colorado should be deprived 
 
 of the use of the water of its streams for the purposes of irrigation 
 these lands I have mentioned would certainly eventually lapse into 
 their original condition of sterility and barrenness and have no 
 value beyond a grazing land value. 
 
 I think there is a larger acreage than that under systems or avail- 
 able to systems already built. I really have not investi- 
 
 2361 gated this recently, but I should say there are more than two 
 million acres actually under cultivation ; the balance would 
 
 be used for meadows and for grazing, being irrigated ; but actually 
 under plow, about two millions or rather more than two millions of 
 acres. 
 
 2362 I have had experience in farming in Colorado with irriga- 
 tion. Briefly stated, it is as follows : 
 
 I commenced agricultural operations in the spring of 1884 in the 
 Grand valley, and also horticultural operations. I there laid out 
 the town of Fruita and shipped the first carload of fruit trees over 
 the range. Fruita is under the Grand Valley system. I farmed 
 various other tracts of land of our company there. In the same 
 year I began agricultural operations in the San Luis valley, 
 where I opened up what we called the North farm, under the 
 Del Norte canal, seven thousand acres, about six miles north of 
 Monte Vista, a town of our company. Then in the San Luis 
 valley I opened up the South farm, under the Citizens’ canal, of 
 three thousand acres. I was interested in a ranch of about 
 eight hundred acres that year in Morgan county, near Fort Morgan, 
 also in some agricultural operations under the North Poudre Valley 
 system, north of Fort Collins. The next year we farmed in the San 
 Luis valley under the Empire canal. In the next two or three years 
 we put about sixty thousand acres under cultivation. Yes sir, in 
 general my farming operations extend to the present time and are 
 conducted under the irrigating systems. During the twenty years I 
 have been in the State of Colorado, 1 have traveled over the State 
 considerably, and have given very close attention to agriZ- 
 
 2363 cultural and horticultural interests in this State during all 
 that time. In addition to my practical experience I have 
 
 made a study of these questions to some extent. Yes, I have also 
 made investigations abroad with reference to irrigation and in so 
 doing have visited southern France, examined the irrigation sys- 
 tems more particularly in the section of Nice, also in northern Italy, 
 on the plains of Lombardy, and in the vicinity of Milan, and also 
 along the Riviera, below Genoa and Naples, where the operations were 
 
THE STATE OP KANSAS VS. 
 
 'fog 
 
 comparatively small. That was in the year 1889. I also saw sonig'* 
 thing of irrigation systems in Holland that year. In 1893 I was 
 again in Holland and made some investigations of the con- 
 
 2364 ditions of agriculture and irrigation there. They were quite 
 different from the conditions in Italy. I made those investi- 
 gations in order that the work of a commission which had been ap- 
 pointed by Governor Cooper of Colorado the year before, according 
 to an act of the legislature, of which I was a member, in revising 
 and codifying the irrigation statutes of this State, might possibly be 
 more intelligently done, and with those credentials and by virtue of 
 that fact Governor Cooper had given me special consideration and 
 special facilities to examine the systems of agriculture and the con- 
 ditions of irrigation as practiced there. Yes, I have read extensively 
 the writings of others and of their experiences upon this subject. 
 As to my conclusions with reference to the productiveness of irri- 
 gated lands as compared with non-irrigated lands, and with 
 
 2365 reference to the capacity of these lands to support popula- 
 tion, they are, as a general proposition, that under average 
 
 conditions in the State of Colorado, for instance, where irrigation 
 is employed, on the one hand, as compared with the average 
 conditions in the section of Kansas of which I have spoken 
 and where I resided and farmed, in what is termed western 
 Kansas, it is my judgment that a family of five persons during a 
 decade can more safely rely upon the production of ten acres 
 of irrigated land in Colorado for a livelihood than upon one 
 hundred and sixty acres of non-irrigated land in that sec- 
 tion of Kansas ; that is, particularly the Smoky Hill and the water 
 sheds of the Smoky Hill, Solomon and Saline, and all along the 
 Arkansas river in that State where irrigation is not in vogue. I can 
 say as to the possible diversity of agricultural and horticultural pro- 
 duction under average conditions with irrigation in the State of Col- 
 orado, as compared with the average conditions in the valleys in 
 Kansas, of which I have spoken, and where I lived, it is 
 
 2366 almost infinitely greater. That conclusion is based upon 
 my own experience in both States. In 1871 I planted thirty 
 
 acres of orchard and miscellaneous crops north of Abilene, where I 
 lived, adjoining the town. I re-visited the orchard a few months 
 ago, and where I had planted, 1 think one thousand apple trees, one 
 thousand pear trees, five hundred peach trees, etc., there were less 
 than a dozen pear trees living and less than a dozen apple trees. 
 All the other trees had disappeared and I was informed that they 
 had practically disappeared as many as ten or fifteen years ago. I 
 never raised but one crop of peaches and but one crop of apples in 
 ten years, from the time I planted the orchards, for climatic reasons — 
 frosts as well as an insufficient moisture to mature the fruit in July 
 and August. I tried various experiments in vegetables in the same 
 way, and it was not a commercial success — not possible. I tried 
 various other crops and made various experiments. I spent a good 
 deal of money in trying to devise a system of wider diversity of agri- 
 
THE STATE OF COLORADO ET AL. 
 
 709 
 
 cultural and horticultural production there, but at the time I left 
 Kansas I had concluded that it was not possible to get much 
 
 2367 beyond a fair average crop at most three years out of five 
 there. But winter wheat was more successful. The tame 
 
 grasses in Kansas were also practically a failure, which limited the 
 range of agricultural production in that part of Kansas to two or 
 three of those grain crops. I found this year large areas in the vicin- 
 ity of Abilene still unimproved, in its wild nature, but grazed and 
 devoted to dairying. On lands in the State of Colorado under irri- 
 gation in such valleys as the Arkansas or Grand, the range of fruits 
 adapted to our latitude and altitude and normal conditions of temp- 
 erature are as great as in any country I have ever seen. So also of 
 vegetables, grains and grasses. 
 
 Recently I visited the Arkansas valley and the Fort Lyon canal 
 and an addition to the town of La Junta and in looking over land 
 I was interested in fifteen or seventeen years ago, now cut up into 
 small tracts, and which I thought would practically never be 
 
 2368 reclaimed, I find they are now planted to sugar beets, and as 
 to this same land, I was positively assured by those having 
 
 charge of it that they were making a better and safer living for them- 
 selves and families on two acres of that ground than they were able 
 to make in a term of years on one hundred and sixty acres in 
 
 2369 the State of Kansas, and I know of cases where practically the 
 same results can be shown upon four or five acres where there 
 
 is some fruit grown. In the State of Colorado not only the crops 
 that are grown in Kansas, but for instance, alfalfa, can be grown far 
 more successfully here where the moisture is greater, than in that 
 part of Kansas. It is practically impossible on the great upland 
 ranges to secure results commercially profitable in Kansas that are 
 at all proportionate to the results we can obtain here by the aid of 
 irrigation. Yes, I can give some instances of the value of crops per 
 acre in Colorado. I saw an orchard at Palisades, in the 
 
 2370 Grand vallesq last year, from which was taken a gross pro- 
 duct of more than one thousand dollars an acre in peaches. 
 
 Yes, I can speak more particularly with reference to the Arkansas 
 valley. I have seen acres in the vicinity of Rocky Ford where the 
 total gross production for a single year has been more than six 
 hundred dollars per acre, the production in many instances ranging 
 from two hundred dollars an acre up to six hundred dollars. I 
 think there is a district there equivalent to thirty square miles 
 where the average production this year will amount to more than a 
 hundred dollars an acre. It is the tendency inevitably of irrigation 
 to distribute the lands among a larger number of people, because it 
 takes a larger amount of capital for the ordinary farmer per acre to 
 start agricultural operations in the irrigated country, and therefore 
 necessarily confines him to a smaller acreage ; and again, after he 
 has acquired experience and proper skill he finds it to be more profit- 
 abl- to confine himself to such a class of products as requires skill, 
 intelligence and a higher price for the products, and this results in 
 
710 THE STATE OF KANSAS VS. 
 
 what is called intensive farming, such as is practiced in the irri- 
 gated countries abroad, where I have seen people gaining a 
 2371 livelihood on an average of less than half an acre per capita. 
 
 In response to vour question in reference to this being an 
 advance in the methods of farming upon those heretofore in vogue 
 in this country, I will say that the difference between the progress 
 which is exhibited where this sort of intensive agriculture is prac- 
 ticed and agriculture under average conditions in the Mississippi 
 valley, as also in western Kansas, where I lived, is as great as it is 
 between the system of farming in northern Illinois today and 
 
 2373 that on the cattle ranches in Texas. 
 
 Yes, on reflection I find that I embodied an error in my 
 testimony. The valuation that I placed on the outlay for farms, 
 etc., included an outlay of ten to twenty million dollars made for the 
 laterals and lateral' works belonging to these farms, and I also in- 
 cluded that amount in the cost of the canals, so that mj 7, estimate 
 should be reduced either as to the total outlay for canals in the 
 State or the valuation of the farms, ten to twenty millions, as I em- 
 bodied that valuation in both estimates. 
 
 In reference to what disposition was made of those ditches with 
 which I was connected, and more particularly with reference to 
 contracts for the use of water and the ultimate transfer of the owner- 
 ship of the ditches, in every instance adopted the plan of eventually 
 transferring the ownership of the ditches and therefore, of course, 
 the administration of the canals in question to the benefici- 
 
 2374 aries, by embodying in the contracts for the purchase of 
 water a clause to the effect that when all but a certain per- 
 centage of the estimated capacity of the canal was sold to owners of 
 the underlying lands, the title to the irrigation works should be 
 transferred to a corporation composed of such land owners, and that 
 has been done in every instance with the corporations referred to, 
 with one or two exceptions, the time not having arrived when such 
 transfer can be made. Yes, the contracts provided for the ultimate 
 transfer of the control of the ditches to the farmers under them. 
 
 In reference to the general water level of the country within that 
 part of Kansas within which I have operated and the connection 
 between the water level and the streams, and as to how the water 
 level receives its supply, my observation and experience in the val- 
 leys of the Smoky Hill river and its tributaries, such as the Solo- 
 mon and Saline, is that the water level is higher and higher as you 
 recede from the river and approach the base of the uplands,. 
 
 2375 and that is true of the Arkansas river in Kansas, according 
 to my information and my observation, so far as I have mada 
 
 any. This ground water receives its supply from the percolation of 
 the rain waters of the great plains bordering the valle}^. 
 
 In reference to the increased acreage in cultivation in certain 
 counties in Kansas for the last twenty or twenty-five years, there 
 has been a larger percentage of such development, of course, in the 
 eastern and central western sections than in the extreme western. 
 
THE STATIC OF COLORADO ET AL. 
 
 711 
 
 section of Kansas, and the effect of the increased area under 
 cultivation upon the absorption of water is to increase the absorp- 
 tion of the rain fall. There is less run-off. Yes, I have made an 
 investigation or study of that question to determine the percent- 
 age of the increase. My estimate for the section of Kansas in 
 which I lived, viz: the Smoky Hill River valley and the up- 
 lands bordering the valley of that river, is that there is about 
 twenty-five per cent, increase in the absorption of rainfall. 
 
 2376 Such rainfall has practically no effect upon the water level 
 adjacent thereto, except a mere strip bordering the side of the 
 
 bed of the stream. If the water in the river would rise it would 
 raise the water level immediately bordering the river, through per- 
 colation from the stream itself. In reference to the water bordering 
 the river acting as a dam to prevent the run-off and raise the water 
 level near the banks of the river, I would say that that would be 
 true, because the percolation from the bordering uplands is toward 
 the river bed, which is the lowest point, and if that is impeded by 
 the rise in the height of the volume of the water in the river, it acts 
 for the time being practically as a dam and checks up that flow and 
 raises the water level back from the river where it is not affected by 
 the water percolating from the river itself. Of course that recedes 
 as the river goes down and the normal plane of the water 
 
 2377 level is re-established. In reference to the percolating waters 
 in the soil, and my attention being more particularly called 
 
 to sand dams that have been used in diverting water into the ditches, 
 in my experience we find it necessary very frequently in the low 
 stages of water in the rivers of Colorado where we are divert- 
 ing water for irrigation, to throw sand dams across the bed of 
 the river to shut off the sub-channels and divert all of the 
 water or practically all of the water into the head works or 
 intakes of the canals. This is generally done by scraping up the 
 sand in the river bed to a height varying from three to six 
 or seven feet, so that it will hold back a head of water of from two 
 to in some instances six feet. Such sand dams are usually about 
 six or eight at the base, with a height of from three to six feet, 
 and the crest not more than a couple of feet in width, and 
 
 2378 it answers the purpose of keeping the water back. As to 
 how long it takes the water to percolate through and show 
 
 on the lower side of such a sand dam, I will say that those dams 
 are temporary and are only expected to be employed for a few 
 weeks, but I recall no instance where the pressure has been suffi- 
 cient to force the water through by percolation, and in that way 
 destroy the dams. There is practi-ally no appreciable percola- 
 tion — no sustained flow certainly — otherwise the dam would dis- 
 solve. 
 
 In reference to ray observations as to the effect of irrigation upon 
 large areas regarding seepage waters or what are sometimes spoken 
 of as return waters, my observations in the lower Platte valley are 
 that the presence of such return flow is very evident. I think the 
 
7J2 
 
 THE STATE OF KANSAS VS. 
 
 statistics show that more than a thousand feet of such increase in 
 the return flow already appears in that valley, so that repeat- 
 
 2379 edly the entire volume of water may be diverted at a given 
 point into a canal and a short distance below there will be 
 
 a sufficient head of return water — seepage water — to justify irrigat- 
 ing operations under another system and by another diversion. I 
 have seen that carried on to the extent of six or eight diversions. 
 In the Arkansas valley the amount of return flow is not so great as 
 upon the Platte, because irrigation has not been practiced in the 
 Arkansas valley so long nor does it cover such a wide range of ter- 
 ritory bordering the valley ; but the return flow in the Arkansas 
 valley is very noticeable already. Within the past two months I 
 visited the head-gate of the Fort Lyon canal. All the water was be- 
 ing diverted into the canal. Three miles below the head-gate of the 
 canal, at the river bridge near La Junta, there was such an amount 
 of water — such an amount of return flow — that I supposed before I 
 drove up to the head-gate that they must be wasting water, but they 
 were not. There were perhaps twenty or thirty cubic feet of water in 
 that interval flowing in the river. The effect of the return flow is 
 shown undertheFortLyon canal, for instance, in the Arkansas valiey, 
 in those dry gulches that were formerly never supplied with 
 
 2380 water except in flood times from cloudbursts and excessive 
 rains, which are now permanent streams below the point 
 
 where they are crossed by the canal, and in at least half a dozen cases 
 canals now are taken out of those gulches and supply adjacent lauds, 
 the water being obtained, of course, from the return flow and seep- 
 age. Yes, I can name streams or creeks or arroyos where the return 
 water is shown in the manner I have described. It is shown in the 
 Gageby creek, which is northeast of the town of Las Animas. It 
 is shown bv the increased volume of water flowing in Horse creek 
 and Adobe creek under the canal system, and also in a creek almost 
 north of Las Animas where a ditch is taken out and irrigation from 
 it practiced ; also in Graveyard creek, north of Fort Lyon, at Lime- 
 stone creek, in that section of the valley, and in two other creeks 
 whose names I do not know, and in at least four or five instances 
 canals have been taken out or irrigation practiced from the 
 
 2381 water supplied by such return flow and seepage. And this 
 seepage or return water has had the effect upon the Arkansas 
 
 river in eastern Colorado and western Kansas of making a more 
 permanent stream of it; and the return or seepage waters upon the 
 South Platte river near the line between the State of Colorado and 
 the State of Nebraska have also resulted in an increased flow of that 
 river. 
 
 In reference to the failure of general farming in western Kansas 
 of which I spoke yesterday, I meant that portion of Kansas west of 
 a line drawn north and south through the State at Dodge City, 
 though of course as the rainfall diminishes as you proceed toward 
 the Colorado line there would be possibly in some years a degree of 
 success in agricultural operations bordering that line that would 
 
THE STATE OF COLORADO FT AL. 
 
 713 
 
 not be true fifty or seventy-five miles farther toward the Colorado 
 line. I am speaking of the general average as to the results. If it 
 be true that the crop yield in Kansas, particularly the yield of 
 
 2382 corn about Wichita and Abilene, has decreased, I attribute it 
 to the diminished vngin fertility of the soil, and perhaps 
 
 that embraces the entire cause, apart from the failures that result 
 from inadequate moisture in some years. The effect of the con- 
 tinual raising of the same crop upon the same land year after year 
 will be the diminishing of the productiveness of the land, unless 
 fertilization is practiced on the soil. That is sometimes overcome 
 by more skillful and intelligent farming. That involves the rota- 
 tion of crops. Yes, the conditions in respect to more skillful farm- 
 ing in western Kansas have improved with a wider adaptation of 
 the system of agricultural to natural conditions, and the failure to 
 rotate crops has been a matter of discussion among the people of 
 Kansas, and the same matter has come before the board of agricult- 
 ure of the State of Kansas, in a report of the secretary of that 
 board. Mr. F. B. Coburn is the name of the secretary who 
 
 2383 made such report, and it has also been urged by writers of 
 special reports published in his general report. For instance, 
 
 Mr. H. R. Hilton, a well known Kansas expert. The particular 
 report I have in mind is that of 1898. It was also brought up in 
 1897 before that board. There is a copy of that report in this city 
 (Denver) in the files of the “ Republican ” but it is not accessable to 
 me at this moment. 
 
 2384 My particular observations of the Arkansas river began in 
 1888 at the time I began irrigation enterprises in the Arkan- 
 sas valley in the State of Colorado. I am confident that there has 
 been an increased flow during the winter months, and of course be- 
 cause of the return flow in the amount of water carried by that river 
 across the borders into Kansas. From the years 1883 to 1888 I saw 
 the Arkansas river in the State of Kansas only occasionally at vari- 
 ous periods during the year. From 1888 until the present time I 
 
 saw the river in Kansas twice, perhaps, every year, extend- 
 
 2385 ing through nearly all the months of the year. My observa- 
 tions of the Arkansas river in Kansas during that time were 
 
 practically in the western section, from Dodge City west, very fre- 
 quently as far east as Burrton and Hutchinson. The Arkansas river 
 from the State line to Wichita, in a general way, differs from eastern 
 rivers in this, that in that section as well as in eastern Colorado it 
 is an intermittent stream — a broken stream — not having a continu- 
 ous flow, the volume of water being much greater generally near 
 the sources of the stream than far away from the sources, two or 
 three hundred miles distant, contrary to the case of streams in the 
 humid sections of the country. In reference to the June rise 
 
 2386 in the Arkansas valley which has been spoken of, and more 
 particularly with reference to the time of it, and as to whether 
 
 or not it is too early or too late for the starting of crops in Kansas, 
 I will say that in order to practice successful agriculture by irriga- 
 
714 
 
 THE STATE OF KANSAS VS. 
 
 tion in the Arkansas valley in western Kansas it is necessary ordi- 
 narily that moisture, either artificial or natural, by rainfall, be ap- 
 plied to the crops in the spring, because if the crops are not properly 
 started no June volume of water will be of any practical value. I 
 am very sure that there has been such an increased flow, during the 
 winter and early spring months in the Arkansas river in western 
 Kansas that greatly enlarge agricultural operations are now possible 
 over what it would be but for that increased return flow, so that the 
 crops mav be irrigated and started in the spring and avail them- 
 selves of the flood waters that usually follow in May and June. 
 
 In reference to the revival of the use of ditches of late years in 
 western Kansas, my information is that not only have irriga- 
 tion projects been revived that for a long period have been 
 practically useless, but there are new enterprises being constantly 
 projected there and the agricultural operations in that valley in 
 western Kansas are constantly being increased. In my judg- 
 
 2387 ment, that increase is accounted for by the more satisfactory 
 supply of early water; that is, winter water and early spring 
 
 water, as I have stated, and the introduction of more skilled farm- 
 ing and intensive agricultural, and particularly the introduction of 
 alfalfa there. As to the effect of these return waters on account of 
 irrigation in Colorado upon irrigation projects in Kansas, it has had 
 the result of providing against seepage and evaporation in the bed 
 of the stream, and consequently, those factors being modified if not 
 greatly overcome, it enables a larger percentage of such flow as re- 
 sults from the melting snow and winter storms in the foot hills and 
 on the plains of eastern Colorado to be carried down into western 
 Kansas, which otherwise would be lost, under normal and natural 
 conditions. 
 
 2388 In reference to the possibility of the maintenance of a sus- 
 tained flow of water in the Arkansas river by means of stor- 
 ing the flood waters of the river, I will say that if the purpose were 
 to augment the normal flow found in Kansas bv building reservoirs 
 in the State of Colorado to be drawn from under some uniform sys- 
 tem to sustain that flow, that might possibly be done, but would not 
 be undertaken by private enterprise. If such reservoirs are provided 
 and a regular volume turned out from them for the particular pur- 
 pose of creating an increased and sustained flow of the river in Kan- 
 sas, something of that sort might be accomplished if there were a 
 sufficient quantity of water to impound, and therefore overcome the 
 loss of seepage that would exist under normal conditions. Taking 
 into consideration the two hundred and fifty miles of sand to the 
 east of the Colorado line, this matter of the storage of flood waters 
 of the Arkansas river and turning the same into the stream would 
 not be practicable, and certainly would not be justified as a com- 
 mercial venture. 
 
 It is not an easy matter to draw a clear distinction between “ high 
 water” and “flood waters.” I think it may answer the purpose to 
 say that a flood is such a volume of water as would overflow the 
 
the state of Colorado et al. 
 
 715 
 
 banks of a stream or its tributaries; and “ high water ” is a volume 
 of water above the average flow or normal flow, but such a volume 
 as would not overflow the banks. 
 
 2389 In reference to the practicability of storing the flood waters 
 in times of floods, like the recent flood in the Las Animas or 
 
 Purgatoire river, I would say that that is practically impossibly 
 physically, nor would any storage enterprise setting out to accom- 
 plish that be justified financially or commercially. There can never 
 be hut a small percentage of such floods impounded, and never will 
 be in this State, because of physicial conditions and because of finan- 
 cial considerations, as I have stated. The physical conditions which 
 prevent the storage of such flood waters within the State of Colorado 
 are an inadequate number ofsuitable places for such storage to be made 
 without such an outlay as would be entirely unwarranted, and the 
 value of lands to be reclaimed by such waters so impounded 
 
 2390 are not and will not be for a long time sufficiently great to 
 warrant such an undertaking financially. Yes, I make a 
 
 distinction between the storage of high water and the storage of 
 these flood waters. There will be a much larger percentage of the 
 aggregate volume of water furnished to the Arkansas river by its 
 tributaries as time goes on, particularly upon the smaller tributaries 
 and where conditions may be found to be favorable for reservoir sites, 
 etc., but as I said before, in the aggregate the percentage of the total vol- 
 ume of water in the Arkansas river and its tributaries in the State of 
 Colorado that can be profitably impounded will be a very small one, 
 and must always be a very small percentage. As to the facilities for 
 the storage of water in the State of Kansas, the situation is some- 
 what different. In Colorado, for instance, most of the large im- 
 pounding reservoir enterprises in the future will be located across 
 the valleys of the tributaries and not out on the plains. The fall of 
 the country — the grades — being too great to warrant the hope of any 
 considerable area being so employed ; but in the valley of the river 
 in Kansas the grades of the river are low and the valley wide. The 
 banks of the river are low and conditions favorable for carrying out 
 intakes to reservoirs which may be built; so that eventually, and at 
 present, if the intensive agriculture which could and should be 
 adopted there were in vogue reservoirs could be built at com- 
 
 2391 partively little expense in the valley of the main river itself, 
 and then these high waters and flood waters could be used 
 
 for the irrigation of lands in Kansas. In my judgment that is the 
 practicable thing to do. I make the statement that if the purpose 
 were to impound say thirty-three per cent, of the flood and high 
 waters of the Arkansas river in Kansas, it might be more inexpen- 
 sively accomplished as conditions are there at this time than if a 
 similar undertaking were to be made in the State of Colorado. In 
 other words, that the cost of impounding such water iu the State of 
 Kansas, per acre foot, would be less than under average conditions 
 across the border in Colorado. 
 
THE STATE OF KANSAS VS. 
 
 71 (\ 
 
 2392 O. In the distribution of water in this State it is customary 
 to distribute it, you said, according to the priorities of the 
 
 ditches. Is that always carried out in the practice of distributing 
 water, and if not, why not? 
 
 A. Not always, fully. If, for instance, a person has a priority, No. 
 1, on the South Platte rivjer, located one hundred miles below the 
 point where a junior appropriator, No. 2, has taken out a canal, 
 it is not the practice to attempt to carry a small volume of water 
 past the junior appropriator in the vain attempt, perhaps, to reach 
 the prior appropriator a hundred miles below, because it might re- 
 sult in failure to supply him and would of course be a loss to the 
 junior appropriator. The fundamental idea of the appropriation 
 and use of water is that the water should be used beneficially and 
 economically, and that dominates to a certain degree the legal rights 
 of appropriations as to the order of their appropriation and applica- 
 tion of water. 
 
 Q. May not the water of the Arkansas river be stored in Colorado 
 during the non-irrigating season and during high water and after- 
 wards discharged into the river and thereby the average flow of the 
 river in Kansas be sustained, though it be doubtful if even 
 
 2393 this would be sufficient in carrying the water across the dry 
 stretch you have described as in Kansas? 
 
 A. Yes. 
 
 Cross-examination. 
 
 By Mr. Campbell : 
 
 Assuming the average normal flow of the Arkansas river at the 
 State line is in the neighborhood of six hundred cubic feet of water 
 per second of time, reservoirs could be erected in Colorado to im- 
 pound the flood waters that would result in sustaining this normal 
 average flow. It would not be a practicable, feasible scheme for 
 private enterprise at the present state of land values, nor at any 
 stage, until at least that volume was impounded by works directly 
 located in western Kansas. That is, I mean to say that the 
 
 2394 first thing to do would be to place the impounding works in 
 the State of Kansas. If you were to impound that water in 
 
 Colorado a few miles west of the State line it would be practicable 
 and feasible, provided there are suitable sites. Were that impound- 
 ing in Colorado to take place three hundred miles west of the State 
 line, it would not be feasible nor commercially profitable, but still 
 such impounding even at that distance as conditions now are — I 
 mean there being a sustained and perpetual flow of water in the 
 river as the result of irrigation — a certain percentage of such im- 
 pounded water could be carried, even though two or three hundred 
 miles, into the State of Kansas. I think it is a practicable 
 
 2395 scheme to erect reservoirs above the Colorado line to catch 
 the flood and other waters that would keep up the normal 
 
^IlE STATE OF COLORADO K*T AL, fif 
 
 Average flow at the State line to six hundred feet and still give the 
 ditches in Colorado the water they are entitled to. 
 
 I have made some study of the act of Congress known as the 
 “ Reclamation act.” I believe it is physically practicable to get 
 the water that I have spoken of in the reservoirs in Colorado. 
 But it would cost entirely too much to warrant the under- 
 
 2396 taking. I should say that it would cost to impound say fifty 
 per cent, of the flood waters of the Arkansas river and its 
 
 tributaries from twenty-five to seventy-five dollars per acre foot — a 
 cost not at all warranted under the present condition of agricultural 
 values. I have no idea of how much it would cost in dollars and 
 cents. It would cost tens and tens and tens of millions of 
 
 2397 dollars. Six hundred cubic feet of water per second of time 
 would irrigate something a little more than thirty thousand 
 
 acres. This estimate is based upon the unit of water right that we 
 adopt in our contracts for the waters users and land owners in the 
 Arkansas valley in this State, which is 1.44 cubic feet of water per 
 second of time for eighty acres. In making this estimate I do not 
 take into consideration the seepage or return waters. It is just the 
 direct application. Taking into consideration the amount of seep- 
 age and return waters, I believe that ultimately a flow of six hun- 
 dred cubic feet of water per second entering the State of Kansas in the 
 Arkansas valley — I sav ultimately because ultimately skillful and in- 
 telligent agriculture will be adopted there by which the rainfall and 
 the seepage waters and the waters impounded as well as the waters 
 delivered directly from the river will all be more skillfully and 
 economically used — will be the reclamation of many and many 
 hundreds of thousands of acres. I believe it is possible with the 
 rainfall moisture and the flood waters, embracing the perco- 
 
 2398 lating underflow waters which are pumped, etc., to develop a 
 system of intensive agriculture embracing the entire valley 
 
 of the Arkansas river in the State of Kansas. 1 should say that 
 eventually the return flow would be equivalent there at the State 
 line to fifty per cent., so that there would be available some where 
 from seven hundred to a thousand cubic feet of water per second of 
 time. The service of that amount of water might be extended there 
 to cover the reclamation of one hundred and sixty acres of land for 
 each cubic foot of water. Multiply one thousand by one hundred 
 and sixty and it will determine the total acreage. Such land 
 
 2399 when irrigated would be worth from seventy-five to a hun- 
 dred dollars an acre. The erection of reservoirs in Colorado 
 
 would certainly augment the supply of water in canals. 
 
 2400 Cross-examination. 
 
 Bv Mr. Ashbaugh : 
 
 I don’t think that the conditions of the Arkansas river either in 
 the State of Colorado or in the State of Kansas are the best that can 
 be had. The river can be artificially made better and more profit- 
 
?18 
 
 STATE oE KANSAS Vi- 
 
 able for the people of the State of Colorado and the State of Kansas* 
 I think it would he wise and profitable to direct our energies to that 
 end. I left the State of Kansas in 1883 and came to Colorado, and 
 since I have removed to Colorado I have given a large share 
 
 2401 of my time to irrigation projects, directly and indirectly. 
 Since 1883 I have taken the irrigation side of the develop- 
 ment of the country. 
 
 The relative conditions in Dickinson county and in Saline and 
 Ottawa counties, which adjoin Dickinson, are about the same. 
 
 2402 The answers that I gave in my examination yesterday as to 
 Dickinson county would be practicably and within all rea- 
 
 2403 sonable limits true as to Saline and Ottawa counties. In the 
 year 1881 there was more corn. I am not quite so clear, but 
 
 2405 quite likely thirty or possibly forty bushels. I am very posi- 
 tive there was really no average yield of thirty-five bushels 
 
 of corn in Saline county in 1879. If the figures introduced in evi- 
 dence yesterday by the defendant Colorado show that the average 
 yield of com in Saline county in 1879 was thirty-five bushels, I think 
 those figures are too great. I think all the published reports 
 as to crops during those years are too great. I think the average 
 yield of corn in Saline county in 1880 was ten bushels. 
 
 2406 Then if the figures that were introduced show that the aver- 
 age yield was twenty bushels, I think those figures are too 
 
 great. In the year 1881 I stated in my direct examination that the 
 average yield was about thirty-five bushels. If the figures intro- 
 duced show that the average yield of corn in the year 1881 was 
 thirteen bushels, then I probably got those years reversed. I should 
 say frankly perhaps I should have studied up. Perhaps I have not 
 looked at a figure nor thought of it before for many years. It is 
 quite likely that the year I have in mind as to the results of which 
 I have stated in 1880 may have been in 1881. I may be not quite 
 correct as to those dates. I know fluctuations occurred, but I am 
 not quite certain as to the dates. I suppose 1881 was better than 
 
 1880 for corn. Then if the figures introduced from the agricultural 
 reports show that the average yield of corn in 1880 was twice as 
 great as it was in 1881, I have reversed it and am mistaken. Then 
 the year I have in mind as furnishing a poor yield should be 1881 
 instead of 1880. My recollection is that twenty bushels of wheat in 
 
 1881 was a fair average. If the figures introduced here in evidence 
 show that the average yield was thirteen bushels to the acre, then I 
 have gotten the years reversed, as before, in regard to corn. My 
 recollection is that the years 1881 and 1882 were about alike as to 
 the average yield of wheat to the acre. Then if the figures that 
 were introduced show that the year 1882 had twice as great an 
 
 average as the year 1881, some mistake occurs. I have used 
 
 2407 the year 1880 for 1881. I have giveu my experience with 
 my own crops. Of course it has been many years, and I 
 
 may, without having looked it up, be mistaken. I was not farming 
 
'Hik STA'TE OE 1 COLORADO l£T AL. 
 
 ? i§ 
 
 Wheat so extensively then as a number of years before, and 
 240$ the data is not quite so clearly impressed upon my recollec- 
 tion. If the figures show that either in 1881 or 1882 the 
 crop was twice as good as in the other years, then 1 am mistaken, 
 and quite likely, because the figures — while I say they are too great, 
 that has always been the case there in the published reports, still 
 the trend would be more likely to be correct than my unsupported 
 statement based upon my present recollection. I don’t think that 
 the figures as published in those agricultural reports come from as 
 reliable sources as m}^ own observation. I should prefer to rely 
 upon my experience with my own land. My recollection that the 
 wheat yields in 1881 and 1882 were about alike might not be more 
 correct than the figures that show that one of these years was 
 twice as good as the other, as to those two particular years, because 
 I was not so deeply interested in the results as I was in the previous 
 years, and my recollection is not quite so clear and reliable. 
 
 2409 I think there was a year in there in 1880, 1881 or 1882 where 
 the yield was nearly twice as great as in those other years in 
 
 the early ’80’s, but I am unable here to select accurately the years 
 I had in mind. As to the source of information they had in these 
 reports, the attempt was made to procure data and statistics through 
 the agency of the assessors. I am not quite sure. whether there was 
 a law in Kansas at that time requiring the assessors to make any 
 returns. That law may have been passed, possibly, after I left the 
 State. 1 should not place a very high estimate on the relia- 
 
 2410 bility of those reports for my own personal purposes. (Ob- 
 jection.) These reports are the evidence that has been intro- 
 duced by the State of Colorado and not by the State of Kansas. 
 (Objection.) 
 
 The source of the Smoky Hill is out upon the plains of western 
 Kansas. Possibly the water shed extends over the borders of Colo- 
 rado. I have not noticed lately. The source of the Solomon is 
 about the same. I think possibly a little of the drainage area ex- 
 tends up into Mebraska. I should say that the Solomon river is 
 longer than the Smoky Hill. Neither of them rise in the 
 
 2411 mountains. Neither of them get any direct flow from the 
 melting snows in the mountains. I think they are not affected 
 
 by the melting of the mountain snows at all. 
 
 I was located about a mile from the Smoky Hill river, in Dickin- 
 son county, Kansas. It was about 15 to 20 feet down to water where 
 I was located. There was no underflow there that was perceptible 
 so far as affecting crops was concerned. The corn that we raised 
 was not moistened from beneath, and we depended upon rainfall. 
 The character of the soil in the valley, that I cultivated, was what 
 we call a sedimentary sand clay loam. It varied, and was consid- 
 ered at that time a very good soil. I had good reason, as I supposed 
 at that time, to regard it as a good agricultural country. 
 
 2412 There have been a number of theories about a great many 
 different subjects connected with the agriculture and climate 
 
TiiPJ ST'ATfi Ol^kAtfsAg VS. 
 
 m 
 
 there, and some of those theories have been found not to be true, I 
 think. We have theories as to the best methods in 1 agriculture in 
 Colorado, about the development of agricultural resources. It is 
 possible that some mistakes may occur, and some have occurred. It 
 is true generally that theories are finally tested after a sufficient 
 number of years by the actual experiences of the men who have 
 given attention to these subjects. I think it can be said that 
 
 2413 people went to Kansas as they went to Colorado, with a hope- 
 ful prospect, and they had theories about different means of 
 
 development, some of which were true and some of which were not 
 true, and the best test is the experience of the men who have lived 
 there and operated and observed during all those years. 
 
 2414 The source of the Arkansas river is mainly in Colorado. A 
 much larger proportion of the Arkansas water shed lying 
 
 within the State of Colorado is below the mountains and out on the 
 foot hills and plains of eastern Colorado. The majority of all the 
 water that flows in the main stream, taking the twelve months of 
 the year into ocnsideration in the aggregate, would come from the 
 foot hills and the plains and not from what would be called the 
 mountain sections or districts of the water shed. Some of it comes 
 from the mountains and the snows in the mountains. Practically, 
 the amount that passes Canon City all comes from the mountains. 
 So that if the testimony has shown that there were seven hundred and 
 fifty cubic feet per second of time passing Canon City, that 
 
 2415 amount came from the mountains. This condition was not 
 true at all of the Smoky Hill or the Solomon. The Republi- 
 can river rises on the plains of western Kansas and Nebraska and 
 northeastern Colorado, but does not get any of its rise at all in the 
 mountains. It is like the Smoky Hill and the Solomon in that 
 respect. In that respect it is different from the Arkansas river. 
 
 I am acquainted with Elwood Mead and his work on “ Irriga- 
 tion Institutions.” Mr. Mead is an authority upon any topic that 
 he treats of — the very highest authority. He is connected with the 
 Government service. If in speaking of the Republican and Arkan- 
 sas rivers on page 288 of his work on “ Irrigation Institu- 
 
 2416 tions” Mr. Mead uses the language “ The surface water of 
 these streams is insignificant as compared with the greater 
 
 volume which travels slowly underground,” I think he is mistaken. 
 (Objection.) 
 
 As to the proportion of water that is used for irrigation that is 
 lost by evaporation and by being absorbed in plant life and vegeta- 
 ble life, taking into consideration a term of years so that pretty 
 nearly the full effect or rather the fullest results from underflow 
 might be obtained, in that case I should say that thirty to forty per 
 cent, is so lost; the balance is returned. If on page 300 of the work 
 on “ Irrigation Institutions” Mr. Mead uses the sentence: “ In 
 
 2417 irrigation an average of two-thirds of the water diverted is 
 dissipated,” I might say that might be true, in fact a greater 
 
 loss in some instances, but where conditions are quite different from 
 
TftE STATE OE COLORADO ET At. 
 
 721 
 
 those in the streams I have referred to, and therefore I think that 
 his estimate is too great. As to whether his estimate is too large 
 where on page 320 he says : “As water is now used, about two-thirds 
 of it that is diverted by ditches and canals is taken up by growing 
 crops or absorbed by the air through evaporation,” that depends 
 upon what particular section or district he has in mind. It is ob- 
 viously not true of the higher elevations, and is not true of 
 
 2418 the North Platte and its tributaries in this State. I think 
 that estimate is too large a percentage or claim for loss in the 
 
 Arkansas valley even yet. The return flow in that valley will be 
 very much increased, and is steadily increasing. 
 
 The soil in the irrigation districts of the Arkansas valley from 
 the foot hills of the mountains down to the State line generally is 
 rather a heavy percentage of clay as against sand, and of course all 
 of it is sedimentary. The soil is more sandy and lighter, more 
 porous, especially the sub-soil, as you approach Kansas, and that in- 
 creases after you cross the Kansas line. Water would find its way 
 through the soil in Kansas in the Arkansas valley more readily 
 than through the soil in the Arkansas valley in Colorado. 
 
 If 750 cubic feet of water passes Canon City in the Arkansas river 
 and all of it passes into the Fort Lyon canal, as to how much of that 
 750 feet would find its way back into the stream below, I should say 
 that in that territory under that canal, the return flow by this time 
 would be equal to between twenty and twenty-five per cent. 
 
 2419 Then if the next ditch below where it got back into the river 
 took the same amount, twenty or twenty-five per cent., which 
 
 would be one or two hundred cubic feet of the original seven hun- 
 dred feet, the next canal would do the same thing and take the 
 whole of the return water. 
 
 Q. If that has been repeated as many as four times, tell me how 
 much of the original seven hundred feet would be in the river? 
 
 A. Well, there wouldn’t be very much, beginning at the head- 
 gate of the Fort Lyon canal, to leave any results for Kansas, but 
 most of the seepage water under that system is returned to the river 
 well towards the bomer of the State of Kansas and could not be so 
 used four times over. In regard to my statement that irrigation in 
 Colorado tended to make the stream more permanent, I will say 
 that it furnishes more water for general use ; that is, for irri- 
 
 2420 gation. But when it is not used for irrigation there is more 
 water in the stream than if there had been no diversion what- 
 ever. 
 
 Winter irrigation is becoming quite popular now, and there is 
 more water for that period and for what we call the non-irrigating 
 seasons. No, it is not true that there are certain crops that we have 
 found by actual experience ought to be irrigated in the late fall and 
 winter season in Colorado. There is practically but little winter 
 irrigation employed in the Arkansas valley or elsewhere in Colo- 
 rado. Late irrigation is not of any greater benefit than at any 
 other time of the year. 
 
 46 — 7 
 
m 
 
 THE STATE OE KANSAS VS. 
 
 Q. Are there not certain products that you have found it to be 
 advantageous to irrigate at other times of the year? 
 
 A. No, sir. 
 
 If on page 170 Mr. Mead, in his work on “ Irrigation Institutions ” 
 says: “ Irrigation of orchards requires as much water in November 
 as in May/’ I think he is entirely mistaken as regards Colorado. 
 If in the next sentence he says: “Alfalfa, potatoes and small fruits 
 all require late irrigation,” I think that correct, but that 
 
 2421 depends on what district you are talking about. That state- 
 ment does not apply at all to the conditions in the Arkansas 
 
 valle} r . Let me explain: We use the term there of water for late 
 irrigation in contradistinction to the use of water in May and June 
 for the months of July and August. We call that late irrigation 
 now. It is not late in the year ; it is late compared with the use of 
 water under the system of agriculture that used to prevail. Small 
 fruits, for instance, are matured later than the month of June. An 
 additional crop of alfalfa may be gained sometimes by irrigation in 
 August, but never any later, and potatoes are matured, of course, 
 many weeks earlier than that in the Arkansas valley. It would be 
 very harmful indeed to irrigate orchards in the Arkansas valley in 
 November. On the contrary, I visited an orchard within the past 
 four weeks and it was injured by irrigating in September, as early 
 as that, because the wood doesn’t ripen and the buds are not 
 
 2422 as hardy, and their experience has been such that water 
 after the middle of September should not be employed in 
 
 that valley in Colorado to irrigate orchards. Any water would be 
 too much at that late season of the year. Of course a very inade- 
 quate or rather a very slight irrigation might not do any harm, but 
 it is not commended as advisable. 
 
 I have no doubt about it that the Arkansas river has been made 
 more permanent by the system of irrigation in Colorado. 
 
 Examining Complainant’s Exhibit A-45, showing the condition 
 of the Arkansas river at Canon City, taken last May, and if the tes- 
 timony shows that not a drop of water had passed Garden City in 
 the river from August, 1903 to May 1904, I will state that they had 
 probably taken the water out farther up the river in the State of 
 Kansas. I don’t know anything about that. It may be cor- 
 
 2423 rect that they had not. 
 
 Q. The river, then, where it passes Garden City, at least, 
 does not appear to have been made more permanent, does it? 
 
 A. As compared with periods in the past ? I don’t know. I 
 don’t believe that it is the first time at that season of the year when 
 the river was dry at that point. I don’t know that it was true that 
 the river was dry from August until the succeeding May, last year. 
 I have never seen it dry for that length of time. I have never ob- 
 served it closely and continuously for that period of time. The 
 volume of water, if there had been sufficient anywhere in the stream 
 to reach that point without having been diverted, was diverted, of 
 course, and that prevented the flow of water there. 
 
THE STATE OP COLORADO ET AL. 
 
 723 
 
 2424 As to the effect on the stream and the valley below if a 
 general system of reservoirs were constructed in Kansas and 
 
 Colorado to impound the flood waters of the Arkansas river, of 
 course the effect would be to diminish the volume flowing in the 
 river below the place of such impounding. I have seen the Twin 
 Lakes reservoir. It is located about two miles above the town 
 
 2425 of Granite, Colorado, and about twenty miles below Leadville. 
 This must be one hundred or one hundred and twenty-five 
 
 miles above the point where it is used for irrigation. By such stor- 
 age the flow of the river between where the water enters the river 
 and where it is taken out has been increased. It has been 
 
 2426 reduced to a practical certainty as to how much less they may 
 safely take out of the river than is put in. In this case of the 
 
 Twin Lakes reservoir they take out about eight to fifteen per cent, 
 less than they put in. This would be no serious reduction, and 
 it can be reasonably estimated. A system of reservoirs does not 
 necessarily require the reservoirs to be located immediately at the 
 point of the head-gate of the canal where the water is to be used, if 
 conditions are favorable; but if that reservoir were located say at 
 La Junta or any other point down the valley and a dam made to 
 carry the water from it the same distance into Kansas there might be a 
 question as to whether it would be any more successful, because the loss 
 by seepage would be very much greater. The conditions are different, 
 because almost all the way from the outlet of the Twin Lakes stor- 
 age reservoir to the point where it is diverted into the Bob 
 
 2427 Creek canal the channel of the river is rockier, or at any rate 
 this rock is very near to the surface and the bed of the stream 
 
 is very narrow and therefore the effect is to minimize very greatly the 
 amount of water that would otherwise be lost. I doubt very much 
 if there is two per cent — one per cent — one-half of one per cent — 
 lost of that water from the outlet to Canon City where the channel 
 of the Arkansas river is confined to a rocky bed. The fact that the 
 river has a precipitous fall there would have some effect, because it 
 would fall faster and be very much less time on the way, so that the 
 amount of absorption and the amount of evaporation increases as 
 you go down the valley ; and this is true in the Arkansas valley. 
 
 The soil in Colorado is very close and compact as compared 
 
 2428 with the soil farther down the valley. We don’t have much 
 trouble in Colorado about water seeping through the banks 
 
 of our canals. There may be places where it is so sandy that it 
 would seep through, and that will depend upon the amount of sand 
 and gravel in the land. The sand and gravel don’t pack so closely. 
 It gets sandier, I think, as you go down the river, as far as Garden 
 City at least. Below Dodge City the condition in this respect does 
 not change very much. There is a section in the vicinity of Hutchin- 
 son where it is much more sandy than at Sterling, but it would 
 
 2429 have no effect, practically, upon the percolation of the water. 
 I don’t know that I have observed the valley closely enough 
 
 to make a statement of any value as to how far back from the banks 
 
THE STATE OF KANSAS VB. 
 
 m 
 
 of the river that sandy condition exists. I recall sections as I havd 
 been through the valley that are sandy and probably the sub-stratifi- 
 cation is sandy and porous almost clear across the valley. My real 
 knowledge of conditions in Kansas was confined more to the Smoky 
 Hill and the Saline and Solomon valleys, and I may fairly say that 
 ray knowledge of the Arkansas valley was a somewhat general or 
 kind of superficial knowledge. When I stated in my direct exam- 
 ination that the irrigation interests around Garden City had been re- 
 vived within the last few years, that statement was not based upon 
 my personal observation. 
 
 2430 The first work that was done upon the Fort Lyon Canal 
 system was in 1884 or 1885, in a small way. The Catlin 
 
 canal had been built at that time. The Rocky Ford ditch in the 
 same district had been built previously. The Las Animas or Jones 
 ditch, supplying a large territory on the south side of the river tribu- 
 tary to the town of Las Animas, had been built prior to that. The 
 Manville ditch below Lamar and one or two small canals in that 
 neighborhood were also built. I don’t know that I can state defi- 
 nitely when the first ditch was built around Garden City, but my 
 recollection or impression is that it was in the very early ’80’s. 
 There were ditches in existence at Garden Ci ty r at the time I dug 
 the Fort Lyon canal or began work upon it, but I cannot say how 
 many were drawing water at that time, but my recollection is that 
 there was quite a system of them at least, and I think that quite a 
 system of them was in existence before those others that I 
 
 2431 spoke of. The Amity canal was built about 1885 or 1886. 
 It was built at least after the Fort Lyon. And let me say in 
 
 that connection that the date that I fixed as that of the beginning 
 of the Fort Lyon canal construction applied only to a very small 
 affair. I took hold of it in 1887 and developed it much more ex- 
 tensively, and then it has been since developed much more ex- 
 tensively. It is 117 miles long. Toward the end of it it averages 
 about six miles back from the river, and in some instances it is eight 
 or ten miles back. 
 
 2432 My observation of the flow of seepage water from the canals 
 would lead me to conclude that the flow is not so rapid as a 
 
 mile a year. The rate of flow depends very much upon the quality 
 of the soil. If the soil is a very heavy clay, and, for instance, with 
 adobe, the movement would be very much slower, in fact the loss 
 from the canal from such seepage would be a minimum, and conse- 
 quently the velocity would be much slower. But much of the re- 
 turn flow reaches the river as the result of spreading the water out 
 over the land in farming and not from the canals; that is, the 
 source of the supply of the seepage is mainly from the water result- 
 ing from the irrigation of the lands, and not from the mere 
 
 2433 channel of the canal carrying the water. The return flow re- 
 sulting from spreading water over the surface of the area irri- 
 gated seeps through the land. If the return flow was outlie surface 
 of the soil to the river, we would call it waste water. As to the aver- 
 
THE STATE OF COLORADO ET AL. 
 
 725 
 
 age velocity of the seepage through the soil from Pueblo to Rocky 
 Ford, there is another factor that enters in in that section. Many of 
 those canals are located where there is what we call shale, a condition 
 that is different from the condition farther down in the clayey, heavier 
 soil districts, so that it might be there in places possible for the seep- 
 age to move more rapidly through that sort of sub-stratification than 
 farther below; but I should say in answer to your question that the 
 seepage, on the average, would move to the river after the country 
 was once saturated, perhaps at the rate of half a mile per 
 
 2434 year. After the soil had become saturated, I don’t think that 
 the velocity would be increased, but the volume of seepage 
 
 would be increased. As to the amount that goes into evaporation 
 and into the life of the product, I should say that under the ordinary 
 irrigation in the Arkansas valley it would be from forty to fifty per 
 cent. I think the balance of the water either is returned by return 
 flow or held in the soil and in the sub-strata as saturation. I think 
 that two-thirds of the water as dissipation is too great an estimate in 
 the Arkansas valley, if you leave out of consideration the raising of 
 the water level beneath the surface. By “ dissipation ” as used above 
 I mean absolutely lost by evaporation and consumed by evaporation 
 and agriculture. As I say, a very large percentage is held 
 
 2435 in the shape of saturation. I don’t think the dissipation will 
 gradually decrease. Of course the same system of crops one 
 
 year as compared with a decade later will not affect the precipitation 
 or loss of evaporation, nor will an alfalfa field consume and waste 
 in that way any more water in the first instance than it will later, 
 but there will be more and more water saved in the sub-soil and 
 sub-stratification as time goes on, that is, the water level will be 
 raised nearer the surface. 
 
 I am acquainted with the Rocky Ford highline canal. At the 
 point of discharge it is fully eight miles back from the river. I 
 should say that it was perhaps one hundred and fifty to one 
 
 2436 hundred and seventy-five feet at its terminus above the level 
 of the river. The return water in that case does not pass 
 
 from the canal directly through the soil back to the river; it wastes 
 into Tim pas creek, which is a tributary of the Arkansas river, and 
 has a valley that is parallel to the general direction of the valley of 
 the Arkansas river, and the return flow from the extreme lower sec- 
 tion of that canal would reach that creek, and has reached it, as 
 shown by the fact that it is a very prominent stream and ditches 
 are taken out of now. This is almost always true where the canal 
 is far back from the river. Where it crosses these transverse valleys 
 and the return flow is carried to the river through those creeks or 
 tributaries coursing at these particular points under the canal. It 
 is true that some crops absorb a great deal more water than others, 
 and it is true that in some years there is a greater evaporation than 
 during other years. During a long dry season there would 
 
 2437 be more evaporation than during a cloudy, wet season. There 
 would be a great deal more, not practically affecting propor- 
 
726 
 
 THE STATE OF KANSAS VS. 
 
 tionately the loss from irrigation, because you irrigate a crop in ten 
 days and you stop there, whereas if you are irrigating continuously 
 all the season during a season of that character there will be a great 
 deal more evaporation in the aggregate than otherwise. 
 
 2438 When I spoke of being dissatisfied with my agricultural 
 experience in Kansas I did not mean that it was because of 
 
 the quality of the soil, nor the climate, provided they could get suf- 
 ficient water and moisture. On the contrary, I was then and am 
 still a believer in the surprising natural fertility of that soil. 
 
 2439 1 left Kansas because there was no other field that was 
 open to me for the scope of operations I cared to conduct, but 
 
 agriculture, and I thought large operations involved rather too 
 much risk. Withdrawing water from Kansas would not be quite so 
 great an injury to Kansas as withdrawing water from Colorado 
 would be an injury to Colorado, because Kansas has much greater 
 rainfall than we have generally in this State. Water is neces- 
 
 2440 sary to sustain life. It is just as important there as here, 
 whether it be in rainfall or in dew or in irrigation. 
 
 I have had some experience in regard to hot winds in Kansas. I 
 know that there are not as many hot winds in very recent years in 
 western Kansas as there was perhaps during the decade that I spoke 
 of, beginning with 1868, but there have been hot winds extending, 
 as I saw four years ago, I think it was, away up into Nebraska — 
 very disastrous. There were four years beginning in 1875, follow- 
 ing the hot wind year of 1874, when there were no hot winds in 
 Kansas, but they reappeared the following year and will appear 
 again, in my judgment. After leaving Kansas I retained large in- 
 terests and farmed extensively for a number of years after 
 
 2441 that in Kansas, but of course since that I have withdrawn 
 from that State, so far as farming is concerned, and have 
 
 given my attention to irrigation in Colorado, and I am more on that 
 side of the proposition than the rainfall side, and I have been look- 
 ing at it from an irrigation standpoint for the last number of years. 
 As to whether the Smoky Hill and Solomon rivers are higher in 
 the spring than the fall depends upon the season. It doesn’t 
 necessarily follow. I have seen the Smoky Hill go out of its 
 banks in October, and I have seen it a mere rivulet in March and 
 April. I have seen it go out of its banks in March and April — 
 almost every month of the year. There was not anything that 
 was known as a June rise in those rivers, not particularly 
 
 2442 speaking. I have been acquainted with what has been 
 known as the June rise in the Arkansas valley. I don’t 
 
 think you can say that there was any corresponding rise in the 
 Smoky Hill or Saline or Solomon rivers. I expected a larger vol- 
 ume of water ordinarily in June because it was the time of the year 
 when we usually had most rain, but we hadn’t that idea in the 
 years I lived there, that there was necessarily a June rise. I don’t 
 think we used the term as applied to that river. My idea of 
 
 2443 a June rise originated in this State after I left Kansas. The 
 Smoky Hill and the Solomon rose slowly from rainfall*. 
 
THE STATE OF COLORADO ET AL. 
 
 727 
 
 There is a percentage — a small proportion very likely — of the water 
 of the Arkansas river that comes from the mountains that must be 
 from the melting snows. I have not investigated closely enough to 
 speak positively, but it would be a very small percentage. That is, 
 the floods of the Arkansas, particularly in the section between Dodge 
 City and Wichita, are created by rains through that section filling 
 the tributaries and flooding that section of the Arkansas as the 
 Smoky Hill would be flooded. I don’t know that it is a fact that 
 the Arkansas river used to rise in the spring and remain up for a 
 number of days and often a number of weeks when there was 
 
 2444 no rain at all. I was not aware that it was claimed as a fact. 
 I don’t know where there are any running streams above 
 
 Cow creek, that enters at Hutchinson, that flow the year round into 
 the Arkansas river. I can’t state positively. Probably there are 
 no such flowing, permanent tributaries, any more than there is far- 
 ther north on the water shed of the Smoky Hill. The rainfall 
 through the Arkansas valley from Dodge City up is about the same 
 as it is north, and from Garden City to the State line it is less than 
 at Dodge City. I presume it is a fact that the rainfall from the 
 State line down as far as Dodge City is so small as to not perceptibly 
 affect the flow of the river except when they have such a violent 
 rain storm as is known in common language as a cloud-burst. 
 
 Cross-ex a m i n a ti on . 
 
 By Mr. Campbell : 
 
 2445 Personally, I only know of a reservoir site in the Arkansas 
 valley in Kansas north of Great Bend, but the topographical 
 
 situation generally for a long distance in the valley and bordering 
 the valley is such as to invite comparatively inexpensive 
 
 2446 reservoir construction. All along, something like the style 
 of structure might be employed there as is employed in parts 
 
 of India, as in the province of Madras, where about twenty per cent, 
 of the surface area of the province is covered by reservoirs. It 
 would be possible to develop in the Arkansas valley, where topo- 
 graphical conditions are similar, a very extensive system of 
 
 2447 storage. Reservoir sites of this character are innumerable 
 between Great Bend and the Colorado State line. 
 
 Redirect examination. 
 
 By Mr. Hayt : 
 
 2448 In reference to storing these flood waters in Kansas rather 
 than in Colorado, take for instance the Las Animas river, the 
 
 descent or grade of the river is very heavy in Colorado and the 
 stream is confined for perhaps a hundred miles to a narrow gorge, 
 so that even if dams were thrown across it the area utilized for im- 
 pounding the water would be small in comparison with the expense 
 
728 
 
 THE STATE OF KANSAS VS. 
 
 involved, whereas in Kansas the water can be diverted from 
 
 2449 the main stream more easily. The banks are low. There is 
 no rock to contend with and the canal construction is in- 
 expensive. 
 
 2450 The Las Animas river in Colorado just referred to is some- 
 times called the “ Purgatoire,” also the “ Purgatory” and the 
 
 “ Picket Wire.” 
 
 I regard it as feasible and practicable to impound the flood waters 
 of the Arkansas river in Kansas so that the same may be used for 
 irrigation in that State. This can be done at reasonable cost for the 
 amount of water that may be impounded. 
 
 In speaking of late irrigation, I wish to be understood that it is a 
 relative term, depending upon the kind of crops to be irri- 
 
 2451 gated. A late irrigation of alfalfa in the Arkansas valley 
 would be irrigation in August and possibly early in Sep- 
 tember. 
 
 2452 In reference to the percentage of water which is deducted 
 for loss between the Twin Lakes reservoir and the point at 
 
 which the water is diverted from the river by the Bob Creek canal, 
 I will say that I have made no investigation of the matter. The 
 percentage controlling may have been based upon mere conjecture, 
 so far as I know. 
 
 In stating upon cross examination that if a reasonable amount of 
 water were taken for reservoirs in times of floods or high water it 
 would have the effect of diminishing the supply of water in 
 
 2453 the river, I had in mind the immediate effect. If the waters 
 were used for irrigation as they are ordinarily used, this 
 
 would still reduce the extreme volume of the flood, for instance, but 
 the practical effect upon the stream below if the water was im- 
 pounded and distributed for irrigation would be to improve 
 conditions, improve the steadiness of the volume and be a benefit, 
 as I view it, ultimately. 
 
 As I have already stated, I began to plan to remove from the 
 State of Kansas about the year 1881 or 1882, and from 1881 on I was 
 not giving as much attention to the growing of crops in Kansas as I 
 had given theretofore, and the estimate which I have given counsel 
 as to the yield is based upon my own recollection of the results of 
 my farming and upon my recollection of the conditions in the 
 
 2454 surrounding country. In addition to farming I was engaged 
 in banking and loaning money on farm mortgages, and I was 
 
 for this reason very closely interested in the general conditions. I 
 can only give the yield in corn and wheat in bushels during the 
 periods I have mentioned approximately. This is especially true 
 for the period of 1880 and since. 
 
THE STATE OF COLORADO ET AL. 
 
 729 
 
 2456 D. C. Beaman, Denver, Colorado. 
 
 Direct examination by Mr. Dawson : 
 
 My name is D. C. Beaman. I live in Denver, Colorado. Am 65 
 years of age. I have lived in Denver about 17 years. 
 
 I am acquainted with the Colorado Fuel and Iron Company. It 
 is an industrial company, engaged in the mining of coal and the 
 manufacture of coke and steel and iron products. I have been 
 secretary of the company ever since it was organized, except 
 perhaps one year. The present company was organized in 1892. 
 There are now no general officers other than myself with 
 
 2457 the company who have general knowledge of the company’s 
 history. Some of those who organized and built up the 
 
 company have died in recent years and other officers have been 
 changed. There are a number of auxiliary companies connected 
 with and operated in conjunction with the Colorado Fuel and Iron 
 Company. They are the Rocky Mountain Coal and Iron Com- 
 pany, the Colorado Industrial Company, the Minnequa Town 
 Company ; the Minnequa Land and Water Company ; the Moun- 
 tain Telegraph Company ; the Crystal River Railroad Company, 
 and the Colorado and Wyoming Railway Company. That per- 
 haps is not quite all, but they are the most important ones. 
 
 The present consolidated company — the Colorado Fuel and Iron 
 Company — began business in 1892 ; the auxiliary corn- 
 
 2458 paiiies are all later than that, some of them are not more 
 than a year old, and some 6 or 8 years old. They have been 
 
 organized from time to time as the increased business operations 
 and development of the principal company required. The total cap- 
 italization of the Colorado Fuel and Iron Company is $16,200,000. 
 The paid-up capital stock is something over $26,000,000. 
 
 In round numbers the present investment of the Colorado Fuel 
 and Iron Company and its auxiliary companies in the drainage 
 area of the Arkansas river in Colorado is about $30,000,000. This 
 investment comprises 18 coal mines, some 2500 coke ovens, 2 lime- 
 stone quarries and the Minnequa steel plant at Pueblo, and part of 
 the Colorado and Wyoming railway. 
 
 2459 The steel plant investment, I suppose, is in the neighbor- 
 hood of $12,000,000 or $15,000,000. I know of none west of 
 
 the Mississippi river that are nearly as large. There are 28 steel 
 and iron mills, and when running at full capacity the finished pro- 
 duct is about 550,000 tons per annum. The coal mines at 
 
 2460 full capacity produce about 3,500,000 tons of coal. The coke 
 ovens 75,000 tons and the lime quarries 400,000 tons. 
 
 The daily capacity of the steel works, which consist of 6 blast 
 furnaces of about 2000 tons, converter 2000 tons, blooming mill 
 1500, rail mill 1500, merchants iron mill 200, hoop and cotton tie 
 mill 100, spike factory 100, bolt factory 16, casting foundry 80, pipe 
 
730 
 
 THE STATE OF KANSAS VS. 
 
 foundry 60, 6 open hearth furnaces 650, 40 inch reversing mill 
 1100, rod mill 800, wire mill 650, nail mill 400, sheet mill 100, 
 black plate mill 100, tin plate mill 200 ; making a total of some- 
 thing over 11,000 tons daily. 
 
 That would not seem consistent with my statement of the total 
 finished product per annum, but in these various mills the tonnage 
 is duplicated. For instance, the product of the 6 blast furnaces is 
 pig iron, and that with scrap iron and other material purchased 
 ontside goes through these other mills and appears in their finished 
 product, which accounts for any apparent inconsistency in the 
 figures. 
 
 2461 As to the values of these products, I could not separate 
 them very well, but its aggregate is approximately shown 
 
 by the gross earnings for the year ending June 30, 1903, which were 
 $16,653,000. 
 
 The earnings for the present year have beeiyvery much curtainled 
 by the strikes in the coal and metalliferous mines, which have been 
 prevailing now for nearly 12 months. 
 
 2462 The number of employes when running full is about 
 16,000. As to {the number of people dependent upon the 
 
 operations of the company, I have figured it on the basis of what I 
 call dependents on the operations, which is a little broader than the 
 mere families of the employes. For instance, take what we call a 
 coal mining camp. Everybody who lives there is dependent upon 
 the operations of the mine, because if the mine is shut down the 
 camp will be abandoned, so that the merchants, grocers, teamsters, 
 and in fact everybody there is dependent upon the operations of the 
 company. On that basis I figure that there would be 5 dependents 
 to one employ^, which would make about 80,000 persons in addi- 
 tion to the employes, or a total of 96,000 persons dependent upon 
 the operations. 
 
 The pay-rolls run about 600,000 a month, and will aggregate in a 
 year something over $9,000,000. 
 
 The operating expenses are about $6,000,000 more, making a total 
 disbursement of about $15,000,000., but that does not include ma- 
 terial bought elsewhere, but simply the expenses incurred in the 
 operations. This money is most of it paid out within the limits of 
 this State. 
 
 2463 In the operations of the company it is necessary to use 
 large quantities of water. This comes from the Arkansas 
 
 river, and its tributaries in Colorado, and from surface water flowing 
 into the reservoirs. There are about 9,000,000 gallons of water used 
 in each 24 hours, of which amount there is about 75 % returned to 
 the stream under present conditions. This water is used for steam 
 at the coal mines, for cooling the coke at the coke ovens, for domes- 
 tic purposes for the people employed there, as well as for those em- 
 ployed at the steel works. It is also used at the steel works 
 
 2464 for cooling and condensing. The cooling and condensing 
 water is used until it becomes too warm, and then it is re^ 
 
THE STATE OF COLORADO ET AL 
 
 731 
 
 turned to the river. This amount of water is absolutely necessary 
 for the operation of the company’s business. 
 
 The company has acquired farming lands along the river, riparian 
 lands with their accompanying water rights, and the water has been 
 turned into the reservoirs of the company, and the lands to which 
 the water was first appropriated lie idle. 
 
 Sometimes we change the point of diversion, but not generally. 
 In other places, for instance, the San Carlos river, we simply 
 
 2465 continued the ditches into the steel works reservoirs, and did 
 not change the point of intake at all. 
 
 We have bought about 8,500 acres of irrigable land on the Ar- 
 kansas and the San Carlos and Purgatory rivers, at a cost of about 
 $335,000., and have changed the use of the water in those instances 
 from irrigation purposes along riparian lands to that for manufact- 
 uring purposes principally. We are not now using all the water 
 we are entitled to under our purchases, but the business of the com- 
 pany is is enlarging as the years go on. 
 
 We provide a great number of houses for our employes, and the 
 investment for tenement houses in something over $800,000. 
 
 2466 At Pueblo where we have a large number of employes a 
 great many of them get water for domestic purposes from the 
 
 city. 
 
 The Colorado and Wyoming railway for the last year earned 
 $383,000., while its operating expenses were something over $300,000. 
 The water rights which we purchased, nearly all of them, ante- 
 date 1865, some of them run as far back as 1861, as we have 
 
 2467 always endeavored to buy the oldest ones we could find. 
 
 The total amount of water thus acquired, or rather the 
 right to the use of the water, is approximately 90 cubic feet per 
 second of time, amounting to about 58,000,000 gallons every 24 
 hours. 
 
 Besides ditches we have constructed 4 reservoirs, and have a fifth 
 one under construction. Three of these reservoirs are in Pueblo 
 county and near the steel works. They have respectively the fol- 
 lowing storage capacity : Nos. 1 and 2, 500,000,000 gallons each. 
 No. 3, 2,700,000,000 gallons. Another is on the Purgatory river but 
 is not yet completed. It has an estimated capacity of 650,000,000 
 gallons. The other one is what is known as the Sugar Loaf reser- 
 voir in Lake county, Colorado, near Leadville. This has a 
 
 2468 capacity of 5,600,000,000 gallons. 
 
 These completed reservoirs are used by the company, ex- 
 cept the Sugar Loaf reservoir, which has not yet been used as we 
 have not yet been able to store a very great amount of water in it, 
 on account of the State engineer who refuses to let us have it, — per- 
 haps he is saving it for the Kansas people. 
 
 This Sugar Loaf reservoir was established by an act of Congress 
 March 2, 1897, by which the Government set aside a certain area 
 there for the construction of a reservoir. It was afterwards aban- 
 doned by the Government and sold under another special act of Con- 
 
732 
 
 THE STATE OF KANSAS VS. 
 
 gress to be completed and devoted to the impounding of water from 
 the Arkansas river. It was purchased from the Government by 
 John H. Poole, and we bought it from him, and also some adjacent 
 land. The number of acres I do not now remember, but it is quite 
 large. 
 
 2469 We aim to fill these reservoirs from the flood waters when 
 we can because we are never sure of the other, and it is our 
 
 purpose and practice to store as much of the flood waters as possible. 
 It is then used as the company needs it from time to time. 
 
 I think our operations have considerable effect on the equalization 
 of the flow of water in the Arkansas river. If the water had re- 
 mained to be used on the land which we purchased I do not think 
 so much of it would have returned to the stream, and it would have 
 been returned at different periods ; while under our use of it for in- 
 dustrial purposes there is a constant return flow of about 75% of, 
 say 9,000,000 gallons per day at present. This flows every 
 
 2470 day regardless of season or weather or anything of that kind. 
 
 The Colorado Fuel and Iron Company, the present com- 
 pany, was formed by consolidation of the Colorado Fuel Company 
 and the Colorado Coal and Iron Company. 
 
 The Colorado Coal and Iron Company was organized sometime in 
 the seventies, and it inflated the steel works at Pueblo, and was also 
 engaged in the coal business. It had previously absorbed 2 of 3 
 other companies, whose names I do not at present recall. 
 
 The Colorado Fuel Company was organized in 1883. It was en- 
 gaged in the coal business and absorbed the Elk Mountain Fuel 
 Company and the Denver Fuel Company. 
 
 The consolidation was made in 1892 and immediately after the 
 consolidated company absorbed the Grand Fiver Coal and Coke 
 Company, a coal mining concern on the other side of the range. 
 
 The Colorado Coal and Iron Company was a considerable user of 
 water as early as 1884 or 1885. 
 
 2471 Some of the products of the present company are used in 
 Kansas. I find that during the last year we shipped into 
 
 Kansas 225,000 tons of coal, worth at the points of delivery exclu- 
 sive of freight charges, over $350,000, the larger portion of that go- 
 ing to points west of Hutchinson. A very large proportion of the 
 fuel used in western Kansas comes from Colorado, and we furnish 
 probably 5/6 of it, maybe more than that. 
 
 I know of no coal mines in western Kansas. Our coal mines are 
 situated with reference to western Kansas as well as any other mines, 
 there being a down hill haul all the way. 
 
 I do not know much about the coal mines in the Indian Territory 
 or in central or eastern Kansas, but I understand that the 
 
 2472 coal is not as good for steam purposes as the Colorado coal. 
 
 The smelters and other large users of fuel in Colorado get 
 a large percentage of their coal and coke from Colorado mines, and 
 of that we furnish a very large proportion, much larger than any 
 other one concern in the State, probably several times more than all 
 
THE STATE OF COLORADO ET AL. 
 
 m 
 
 the other concerns in the State. We also furnish coal and coke for 
 the operation of smelters and other industries in Idaho, Wyoming, 
 Montana, Utah and New Mexico, and some coke even goes into Old 
 Mexico. 
 
 We furnish coal to railroad systems operating in Colorado and 
 some of the adjoining territory. Some of our anthracite coal goes 
 farther west. 
 
 2473 If the water supply of this company were cut off it would 
 close everything down, as neither coal, coke, steel nor iron 
 
 could be produced without a considerable use of water, much more 
 in the production of steel, iron and coke that in connection with 
 the coal. 
 
 As the use of water by smelters, reduction works and other insti- 
 tutions of that kind in the Arkansas drainage of Colorado, I tried 
 to get at that, and what they seem to regard as use of water would 
 amount to about 500,000 gallons a day for the smelters at Pueblo 
 and along the Arkansas river, and at Leadville, but their basis is 
 not a proper one. When they figure on the water they use, they 
 mean that which they take in for steam and purposes other than 
 cooling. They do not count that which is returned. If the 
 
 2474 amount of water they take in for cooling were included, it 
 would be much larger, but they do not consider at all the 
 
 water that is returned. 
 
 A great many of the towns and cities along the Arkansas valley 
 are users of coal produced by the Colorado Fuel and Iron Com- 
 pany, but I could not way certainly that most of them were be- 
 cause there are other companies which are also supplying coal. 
 The Victor Fuel Company is the largest of the other producers. 
 
 As to the effect upon the market for coal in case the irrigation of 
 lands in the Arkansas drainagewas stopped, I should say it would 
 necessarily devastate the country, reducing the supply which we 
 furnish in proportion to the population driveu out thereby, 
 
 2475 which would be very large. I think the population in the 
 Arkansas drainage, at a rough estimate, is about 175,000. If 
 
 the couutry were devastated by the cutting off of the irrigation 
 water, our properties could not be operated profitably, as it would 
 cut down the demand too much to make operations profitable. 
 That is even if we were still allowed to use water for the produc- 
 tion of coal, coke, steel and iron the effect on the markets within the 
 drainage of the Arkansas by the stoppage of irrigation would be so 
 great that it would not pay to operate these industries. If the 
 
 2476 lands now farmed by reason of irrigation were devast-ed by 
 the cutting off of the use of water for that purpose, it would 
 
 simply make this country a desert. It would go back to the days of 
 cattle raising and the cow puncher. 
 
 Cross-examination by Mr. Ashbatjgh : 
 
 2477 If the entire water supply of Kansas were cut off, I suppose 
 it would be reduced to the condition it was in when they 
 
734 
 
 TJlE STATIC OF KANSAS VS. 
 
 called it “starving” or “bleeding” Kansas. I suppose it would 
 hurt Kansas just as much as any other country to entirely cut off 
 its water supply. 
 
 The Sugar Loaf reservoir is located in the bed of the Lake fork 
 of the Arkansas river, and the dam is right across the bed of 
 
 2478 the stream, with outlet pipes in the dam to relieve the ordi- 
 nary flow of water. The reservoir was finished within the 
 
 last six months. There is some water in it now. There have been 
 no flood waters since its completion. It has a very large basin and 
 the natural drainage is large, and it has received considerable sur- 
 face water aside from that which comes down the Lake fork. 
 
 The term “ flood water ” is a very broad one, and is often used to 
 apply to any volume of water above the ordinary flow up to 
 
 2479 even a cloud-burst. I do not think that is really a correct 
 definition of the term “ flood water.” My definition of it 
 
 would be a volume of water exceeding ordinary high water. 
 
 The principal floods in the Arkansas valley this year have been 
 below the Sugar Loaf reservoir. 
 
 We built the reservoir with the intention of taking as much of 
 the flood water as the authorities would let us have until we got the 
 reservoir filled. I think that reservoir is large enough and would 
 take care of any rain fall above it, as it is not filled by a ditch which 
 would limit the amount of intake. 
 
 2480 The reservoirs near the steel works are filled by ditches 
 taken out from the Arkansas and San Carlos rivers, 
 
 and run into the reservoirs. We usually fill them in the spring 
 or whenever the water authorities permit us to. They take an 
 account of our priorities and the priorities of others and regulate 
 thereby our taking of water. It is practicable to take water through 
 these ditches when it is higher than normal, but not practicable 
 to take all the flood waters, owing to the want of capacity of 
 our canals and ditches. They were not built with a view to taking 
 a very large volume of water. We do find it practicable to 
 
 2481 take water at high water periods, but from a cloud burst there 
 is too much water and too much force to be controlled by 
 
 these ditches. 
 
 The company is a private corporation and has no State or Gov- 
 ernment help. The auxiliary companies which I have referred to 
 perform some incidental work connected with the operations of the 
 principal company. For instance the Crystal River railroad is 
 almost entirely used to haul our coal and coke to market. That 
 railroad is not in the Arkansas drainage but on the other side of 
 the range. 
 
 Nearly all the traffic on the Colorado and Wyoming railroad is 
 the transportation of coal and coke produced by us on the 
 
 2482 Purgatory river. That road brings a very large proportion 
 of the steel works fuel supply to the connecting roads which 
 
 bring it to the steel works. 
 
 Of course we would be perfectly willing to have the use of our 
 
*THE state of colobado et al. 
 
 735 
 
 products in Kansas increased if we could supply them, and an in- 
 crease in the population of the Arkansas valley in Kansas would 
 certainly be no injury to the company. 
 
 Examination by Mr. Campbell: 
 
 The Colorado Fuel and Iron Company, to which I have referred, 
 is the company that is made a defendant in this suit. I could not 
 state the area included in these reservoirs without referring to the 
 map, as I do not have it in mind. I could not even approximate it. 
 
 We do not use the water for irrigating purposes at all. It 
 
 2483 is used exclusively for manufacturing, mining and domestic 
 purposes connected therewith. I mean by domestic purposes, 
 
 the uses by employes and others dependent upon the operations of 
 the company. In our use of water we do not use any more than is 
 actually necessary for these purposes, and when we get through with 
 it it is returned to the river. 
 
 I have been a practicing attorney since 1869, and in pretty 
 
 2484 active practice since that time. I have given considerable 
 study to the question of water rights, the doctrine of riparian 
 
 rights, and appropriation of water for domestic, agricultural and 
 other purposes. 
 
 I would venture to hope that the decision of this suit could not be 
 detrimental to the rights of the Colorado Fuel and Iron Company 
 to use this water for domestic, manufacturing mining or other pur- 
 poses, hut inasmuch as it is made a party defendant and charged 
 with doing things which it ought not to do, I thought we ought to 
 show what we are actually doing. 
 
 Assuming that the doctrine of riparian rights (as distinguished 
 from the doctrine of appropriation) prevailed in Colorado as it does 
 in the States east, where the common law doctrine prevails, I am in- 
 clined to think that we would even then have a right to take the water 
 of these streams for the purposes for which we now use it, although 
 I must confess that I have not studied the law of riparian rights in 
 this connection very much, as I have not yet got to that stage in the 
 case. I believe it is true that in the States where the doc- 
 
 2485 trine of riparian rights prevails, individuals and corporations 
 can take the water from running streams for manufacturing, 
 
 mining and other purposes. Whether they could be interfered with, 
 unless they did it in an unreasonable and unlawful way and man- 
 ner, I do not believe I am sufficiently posted at present on the 
 raparian doctrine to answer. 
 
 Recross-examination by Mr. Ashbaugh : 
 
 As to our deriving any benefit from furnishing water for domestic 
 purposes to our tenement houses, I think we do in some places, but 
 I am not sure about it. We have a water system in almost every 
 mining town of any size, by which the water is distributed to the 
 
736 'TtiES STATIC OF FAtfSAS Vt 
 
 houses as it is in a city, but my recollection is that we do not 
 charge for that water. I know in a great many places we do 
 
 2486 not. I do not think it is considered as part of the rent that 
 is paid for the tenement houses, because we have no water 
 
 measurement, and we base our rental on the cost of the houses, and 
 I am quite sure that the water supply has never entered into it. 
 Usually, we do not conduct the water into the house, but put it into 
 the hydrants along the streets, and if the tenants want to make any 
 further use of it they have to provide for it themselves. 
 
 As I said, I do not think the water supply generally enters into 
 the question of rent, for the reason that I gave, and the water sys- 
 tems are all so closely connected with the water supply to the indus- 
 trial part of the camp that that which goes to the people is a very 
 small item. It is true that the houses themselves would not be 
 worth as much in rental value without the water, as with it, as we 
 could not keep tenants there at all, they would not stay. It 
 
 2487 is also true that although there is no separate charge for the 
 water, we do derive a benefit by furnishing it because we 
 
 get people to live there. If we did not we could not. 
 
 We derive a financial benefit from the rent of the houses and 
 premises. That is, we get pay for them, but as to getting any finan- 
 cial benefit from them, that is stretching it a little. It is never per 
 se a profitable operation. The water, however, does enter into the 
 value of the premises in the way I have stated. 
 
 Redirect examination by Mr. Dawson: 
 
 It would be utterly impossible for Employes to live in these camps 
 unless we brought water into them, and the expense of bringing it 
 would be beyond the means of the workmen. 
 
 2488 I have been familiar for a number of years with the Des 
 Moines river in Iowa. It rises in northern central Iowa. I 
 
 was most familiar with it from Des Moines to its mouth. First be- 
 came well acquainted with it in 1852. There has been a remark- 
 able diminution in the amount of water carried in that stream since 
 I became acquainted with it. The water is not used there for irri- 
 gation. I could see no reason for the diminution in this water other 
 than the cultivation of the adjacent soil, and the destruction of tim- 
 ber, unless the precipitation has lessened, and I do not know 
 
 2489 about that recently, but I know it did not lessen materially 
 for some 20 years, subsequent to 1872, during which time I 
 
 was interested in the question of the advance of humidity towards 
 the Rocky Mountains, and procured the Government reports from 
 along the Des Moines river and westward in regard to precipitation. 
 There was no perceptible lessening in precipitation during that time, 
 but since then I have not continued my investigations in that direc- 
 tion. 
 
 When I first knew the river, a large part of its drainage area was 
 still the native sod. I lived some distance from the river as early as 
 
THE STATE OF COLORADO ET AL. 
 
 737 
 
 1846, when I was a boy. The whole country was wild and there 
 was practically no cultivation at all. It remained practically in its 
 native condition up to 1859. Since that time I think nearly all the 
 tillable land in the country that is not timbered has come under 
 cultivation. I do not know the percentage of diminution in the 
 river flow since I knew it, but below the lower dam where I 
 
 2490 lived in the early days we used a ferry to cross the river in 
 summer time. Now, in summer they take some slabs, put 4 
 
 legs in them, and set them end to end across the river, and walk 
 across. I should think the amount of water now carried by the 
 river in the summer time is one half less than in the earlier years. 
 
 In my early acquaintance with the river the United States spent 
 large sums of money in an effort to make it navigable. They com- 
 menced about 1850. I worked several years on this Government 
 work of building dams and locks for the improvement of the navi- 
 gation of the river. The Government spent $6,000,000. or $7,000,000. 
 on the work, but never completed it. It built some dams and locks, 
 and then turned it over to the State, and the State spent some 
 $3,000,000. more and then it quit. By that time the railroads had 
 got into the State, and the whole scheme of navigation ended. 
 
 2491 The steam-boats used to come up the river every spring. I 
 do not think there has been one up the river now in 15 years. 
 
 The ordinary flow of the river now is not sufficient for navigation. 
 It would be navigable in high water, but the locks have been broken 
 down, so that steam-boats could not get pass the dams. 
 
 Recross-examination by Mr. Ashbaugh: 
 
 I lived at 3 points on the Des Moines river — Croton, Keosauqua, 
 and Ottumwa. I never heard of any irrigation there. I am quite 
 sure there was no such thing there then. No, they did not build 
 dams and take water out of the river, and run it into canals, so it 
 was not irrigation which decreased the flow. 
 
 2492 Redirect examination by Mr. Dawson : 
 
 The water in the Des Moines river certainly decreased, notwith- 
 standing there was no irrigation. 
 
 With reference to the paid up capital of this company being about 
 $26,000,000., and the approximate investment in the Arkansas 
 drainage being $30,000,000., and the apparent discrepancy in the 
 figures, it is accounted for by the fact that there are bonds to the 
 amount of some $21,000,000., the proceeds of which and capital of 
 auxiliary companies have also gone into the property. I do not 
 mean to say that all this went into the property within the Arkansas 
 drainage, however. 
 
 Adjourned to November 30th, 1904, at 2 o’clock p. m. at the state 
 house in the city of Denver, State of Colorado. 
 
 47—7 
 
738 
 
 THE STATE OF KANSAS VS. 
 
 Denver, Colorado, December 7-10, 1904. 
 
 2495 Oliver P. Wiggins, Denver, Colorado. 
 
 Direct examination. 
 
 By Mr. Hayt : 
 
 I was eightv-one years of age last July, and live at Denver, Colo- 
 rado. I am bailiff in the district court of the city and and county of 
 Denver. I first came into Kansas in the year 1838. It was 
 
 2496 near where Kansas City is now located. I came up from St. 
 Louis on a steamer to Independence, Missouri. 
 
 I am familiar with the Arkansas river within the States of Kan- 
 sas and Colorado. I first saw the river in 1838 at Great Bend, 
 Kansas. It was about the first week in November. We crossed the 
 river. I was with a Santa Fe train, on the Santa Fe trail. About 
 five miles from where we then crossed the river we left the 
 
 2497 river. We were there at the river about a week. There was 
 a good deal of water there at that time. In 1839 I again saw 
 
 the Arkansas river. That was away west of here. In 1838 we got 
 to Taos, New Mexico, on the first day of Decembe?*, sixty-six years 
 ago day before yesterday. In 1839 I saw the river about the mid- 
 dle of June; it was at a point near the mouth of Walnut creek, 
 which heads in Kansas, about two hundred and sixty miles from 
 here. Walnut creek and Smoky Hill creek are about six miles 
 apart. At that time I was about a month along the river. We 
 started to go down to Great Bend to guard a train there and we went 
 over to the river and followed it down, on account of the water being 
 scarce all through that country there, and when we got over 
 
 2498 near the mouth of Walnut creek the water sank and then we 
 had a heap of trouble in getting down from there. We would 
 
 have to dig holes in some places to find water, and at other times 
 we could get it without digging. 
 
 I saw the river repeatedly from 1839 to 1848. (Objection.) In 
 1840 and 1841 I was on the river. In 1842 I went with John C. 
 Fremont on the Green river, and in 1843 I was with Fremont again 
 at Salt Lake and at Walla Walla, Washington. I next saw the Ar- 
 kansas river in 1844 at a point below Rocky Ford, near the mouth of 
 Walnut creek. In 1845 I went back East, but came out again in 
 1846. In 1847 I only saw the river in the spring. There 
 
 2499 was plenty of water then up to the middle of June, when it 
 began to fail very fast. In 1847 I was a volunteer for the 
 
 Mexican war. I saw the Arkansas river in June of that year. I 
 didn’t see it in 1848, as I was wounded. In 1849 I crossed it. In 
 1849 I took a wagon train through to California and came back in 
 1850. In 1854 I went down to the Great Bend to guard the train 
 through again. I saw the river in 1855 in July. In 1856 I crossed 
 the river at Pueblo and went to Fort Bridger. I didn’t see much 
 of the river after 1856, nothing more than to cross it. 
 
THE STATE OE COLORADO KT AL. 
 
 739 
 
 2500 In 1838 we crossed the Arkansas river at Great Bend, 
 where there was about two and a half feet of water, or maybe 
 
 three feet of water, — clear, nice water, running pretty swiftly and 
 about 125 to 150 yards wide. That was about the first week in 
 November. We were there for four or five days. In 1839 we 
 started to go down the river again and the river had gone dry. This 
 was a little over two hundred miles out from where Canon City is 
 now. There were holes of water along the river but it didn’t run. 
 That was at the mouth of Walnut creek, at the sand ridge, as we 
 called it. Before that it was all dry there and dust was blowing out 
 of the bottom of it. The river never went dry at Rocky Ford; it 
 always ran there. When I first saw it dry was one good day’s travel 
 below Pueblo, to Rocky Ford, and from that on down there was just 
 the water holes until you got down to this big sand ridge and there 
 it went entirely dry. That was the condition of the river in 1839 
 from below Rocky Ford a short distance to Walnut creek in 
 
 2501 the State of Kansas during the months of June and July. 
 Afterwards the train came out to Council Grove in Kansas, 
 
 about the last of July I think it was, when we left there. There 
 was then a little water in the river where we crossed, about two or 
 two and a half feet, but to lake it from the mouth of Walnut creek 
 down, well, a hundred miles below Walnut creek, it was not a run- 
 ning stream that year at all. In the months of July and August, 
 from Rocky Ford to Walnut creek and from Walnut creek to a hun- 
 dred miles below. It was very dry that season. I was along the 
 river two or three months. (Objection.) 
 
 In 1840 the river went dry pretty nearly in the same way, not quite 
 so dry as it did the year before, but there were water holes 
 
 2502 all along that year as near as I can recall. We didn’t have 
 much digging to do to get water for our stock. There was no 
 
 water running in the river from about the last week in June until 
 August. We left the river in August. During the time I have 
 mentioned we were scouting and riding up and down the river. 
 (Objection.) 
 
 In 1841 the river was pretty nearly the same. I cannot give the 
 months I was along the river that year exactly. We most always 
 went out the middle of June to meet the train down about Great 
 Bend or Big Grove, afterwards called Council Grove, and we would 
 meet the train there sometime about the first of August. By meet- 
 ing the train I mean that Kit Carson had a contract with the Santa 
 Fe Company to guard the train through from the Arkansas river 
 to Santa Fe, and he most always went with us. The train 
 
 2503 was a Santa Fe train of about two to five hundred wagons, 
 what we call prairie schooners, with eight or ten yoke of 
 
 oxen and eight or ten tons of freight on a wagon. 
 
 In 1842 I crossed the river at Pueblo. It was then a nice, clear, 
 running river about two and a half or three feet deep. It was as 
 clear as crystal. Two and a half feet is about what it was, and 
 about a hundred yards wide, I think. 
 
740 
 
 THE STATE OF KANSAS VS. 
 
 In 1844, about the middle of June, it might have been before or 
 a little after that we went down there, the river was in about the 
 same fix — water holes along. We passed down the river 
 
 2504 that year. I think the water ran then fifty miles, probably, 
 below Rocky Ford. After you got forty or fifty miles below 
 
 it disappeared. Below the mouth of the Pawnee the water seemed 
 to rise. There were big rains in Kansas down there, and the Wal- 
 nut creek and the Pawnee and two or three other streams there that 
 I don’t know the names of furnished the water. The further down 
 it went towards Great Bend the deeper the water got. Some good 
 springs down there helped to supply the water, but generally it was 
 rain that did it. In those years the snows here in the mountains 
 commenced melting very fast in May, and by the middle of June it 
 was pretty well out. 
 
 I went back home to Niagara Falls in 1845 and crossed 
 
 2505 the river at Big Bend. We didn’t go down the river. It was 
 a nice stream there. 1846 was a bad year. The river went 
 
 entirely dry by the middle of June and the buffalo all left there. 
 There were no water holes on the Arkansas river in 1846, and the 
 Smoky Hill and Solomon rivers went dry, and the Republican went 
 very nearly dry, but the buffalo went north and then the Indians 
 gave us notice that we would have to get out of there or go up to 
 the mountains. We went with the buffalo clear over to the North 
 Platte and to the Republican and went down the Republican. 
 
 2506 I was on the river that year from abont the middle of June 
 until about the first of July. We were there only two weeks. 
 
 We had to get out of there on account of water. There was none. 
 We went down the river to this sandy bluff where the water always 
 sinks so bad. The water was sunk all the way from Rocky Ford 
 that year. We thought we would find water at the mouth of the 
 Walnut creek, but we struck none, not a bit, and no game. There 
 we struck a big tribe of about five hundred Indians moving north 
 and east. We couldn’t get water by digging for it that year — in 
 1846. We had to make our way to some little springs. 
 
 2507 The Indians understood where the springs were. We struck 
 no water until we got to French Man’s creek or White 
 
 Men’s fork. That is about seventy-five miles south of the Platte 
 river. 
 
 I didn’t see the river in 1847 or 1848. I was lying at Taos, 
 wounded, for fourteen months. In 1849 there were two of us, Sol. 
 Silver and myself, detailed by Kit Carson to go to Independence, 
 Missouri, and take the train through to California for them. We 
 crossed somewhere about this sand hill I have mentioned, two hun- 
 dred and sixty or two hundred and seventy miles from Pueblo. There 
 were water holes there. We had no trouble in getting water that 
 year. We only went down to the mouth of Walnut creek. We 
 were on the river during the months of March and April. It 
 
 2508 had not commenced thawing then, or very little. There was 
 very little water in the river. It ran probably five or six 
 
THE STATE OF COLORADO ET AL. 
 
 741 
 
 inches deep and three or four rods wide, but it was continuous. In 
 1850 I came back from California and crossed the river at Rocky 
 Ford, about the first of July. There was plenty of water there at 
 that time. 
 
 In 1854 I was along the river for considerable distances, going 
 down the river only. Coming back we left the river at Rocky Ford 
 and went in a southwesterly course. We went down the river that 
 year about the tenth or twelfth of June. It was terribly dry. There 
 were water holes. We had to dig for water that year. That 
 
 2509 was the condition all the way down until we got below the 
 mouth of the Pawnee. Then there was water from there 
 
 down — good rains and plenty of water. We watered our stock by 
 digging holes and dipping out the water for them. We suffered a 
 good deal. In some places you might dig six or eight feet in the 
 sand and not find any water. That was the case in 1846 and 1854. 
 They were the two terribly dry seasons. These water holes I have 
 spoken of were generally dug in the bed of the stream at the mouth 
 of the creek. The wolves used to dig holes there to get water, but 
 the wolves all had to leave that year, 1845, and also in 1846. We 
 dug holes at the mouth of the stream where it empties into the Ar- 
 kansas, because the soil was hard, and in the hard soil the water 
 would rise, and it always kind of gouges out at the mouth of these 
 creeks by the sudden run of the streams, and that helped us 
 
 2510 out some. A good many springs that year went dry that we 
 all knew of. We would go to those springs and then we 
 
 would have to go back to the river again. In 1855 there was plenty 
 of water in June and July. I crossed in August at Great Bend and 
 there was water all the way down that year, a nice, big running 
 stream, on account of some big floods up here around Pueblo and 
 around the foot of the mountains — big rains — and that helped us 
 out. There was a big snowfall the winter before, twenty or thirty or 
 forty feet deep, and it took a long time to melt it out; but the floods 
 we had and the high water came from the rains. 
 
 During the earlier years that I was familiar with the river it most 
 always went dry in July. (Objection.) I only saw about four sea- 
 sons that we had good running water in July. As a general 
 
 2511 thing it went dry the last of July. There was always plenty 
 of water down there at the fort at Great Bend. I never knew 
 
 that to go dry. The least water I ever saw down there was about 
 two and a half feet — nice, clear water. In those years I have de- 
 scribed as dry years I don’t know how the water was above in 
 August and September, but it was pretty dry, I suppose, then, be- 
 cause it was dry up to the first of July. 
 
 Q. You have spoken about the buffalo having been driven 
 away from there in one year on account of the scarcity of 
 water. 
 
 A. That was in 1846. 
 
 Q. Did you ever see them hunting for water at any other time 
 when they could not find it ? 
 
742 
 
 THE STATE OF KANSAS VS. 
 
 A. No, they know enough to go away before the water all dries 
 up. That is one queer thing about thetn. 
 
 2512 1846 and 1854 were the two worst years. 
 
 Cross-examination. 
 
 By Mr. Ashbaugh : 
 
 The big sand ridge that I spoke of near the mouth of Walnut 
 creek ran out to the river. The river seemed to cut through this 
 big sand ridge. It was on both sides of the river, but higher on the 
 north side than on the south. It was away above Great Bend, I 
 should think, two hundred miles away, and above Fort 
 
 2513 Dodge. It was away above Fort Hayes; that is away down 
 on the Smoky hill, close to the mouth of Walnut creek, where 
 
 Walnut creek empties into the Arkansas river. During the years 
 when we started from here to go down there about June we would 
 be on the river five or six weeks. We would get down to Great 
 Bend and get to the train there and then go right out on the 
 Santa Fe train southwest, leaving the river about five miles 
 west of Great Bend. We took the south branch of the Santa Fe 
 trail. 
 
 Q. Was there any high water in the river during those years dur- 
 ing the month of June? 
 
 A. Yes, sir. In 1855 there was plenty of water, so big we had to 
 ferry the goods across. We couldn’t cross with the wagons. 
 
 2514 We ferried across the river at Great Bend in 1855. The 
 water came from the big rains in these streams like the Pawnee 
 
 and Walnut creek and those other streams that I don’t know the 
 names of. I don’t know anything about what streams entered be- 
 low Great Bend. I never was five miles below Great Bend in my life. 
 These floods all came from big rains. In the spring early, take it 
 in May and June, then it came from the snows. The river was 
 always well up in May and up to the middle of June ; then it began 
 to go down ; and those floods lasted about six weeks. The only time 
 I ever saw the river in the fall was during the first week in Novem- 
 ber, and that was the latest I ever crossed it. I never saw it in De- 
 cember or January. I don’t know how long the river remained dry 
 during those years when we went down in June and left it two or 
 three weeks afterward. All I know is what I understood from the 
 Indians — that it was very low and dry all winter. That 
 
 2515 would be during all the years. It was dry or would very 
 nearly go dry up above there all winter. The earliest I went 
 
 out on the river to go down was in the spring of 1849, in March and 
 April. I was never on the river during the winter. Oh, I was out 
 on the river to the forts, and it was alwa 3 r s a little bit of a stream, 
 and frozen up, — didn’t amount to anything in the winter time. 
 Several times when I had to go out from Taos to hunt for the forts — 
 Carson had a contract with the forts to hunt buffalo for them and 
 
THE STATE OF COLORADO ET AL. 
 
 743 
 
 the soldiers hauled them in and we would have to go there just 
 after it began to freeze up, because the water was so terribly low and 
 any little frost would freeze it solid and then the buffalo would go 
 off into the hills to the springs. The forts I refer to were Bent’s 
 fort. The forts were away above the sand ridge — west of the 
 
 2516 sand ridge. The buffalo knew the river was going dry. 
 When the buffalo were going to leave the Indians would give 
 
 us notice then to get out of there — to go to the mountains or to go 
 north. If we went to the mountains the Indians always wanted to 
 go with us, because we were well armed and they had nothing but 
 bows and arrows, and if we went to the mountains the Utes would 
 come down on all of us. During the times we went down the river 
 in June there was no high or flood waters, more than when there 
 came up a big thunder shower it would raise it a foot or two and go 
 down within a few hours. 
 
 Q. During those times when you went down the river in June was 
 there such a thing known as high or flood water in the river at that 
 time ? 
 
 A. Nothing more than when there came up a big thunder shower 
 it would raise it a foot or two and go down within the next two 
 hours. 
 
 Q. That was always, then, in the month of June after the snow 
 was melted in the mountains? 
 
 A. Yes, sir. We hardly ever have any storms in this country until 
 the last of June or July. July is our month for that. 
 
 Q. Then it is your recollection, is it, Mr. Wiggins, that the waters 
 formed from the melting snows always were out of the way before 
 you went down in June? 
 
 A. By the middie of June the snow water was run off, except this 
 one year 1855. That year there was so much snow fall in the 
 mountains it kept up a big supply all summer. 
 
 Redirect examination. 
 
 By Mr. Hayt : 
 
 2517 This sand ridge I have spoken of is away down below 
 Bent’s fort. I don’t think the sand ridge was as far from 
 
 Rocky Ford as from Great Bend. We had no way of measuring 
 distances in those days except by the distance we could travel in a 
 day. So many sleeps. That is the way we counted it. 
 
 2519 Frank B. Baldwin, Denver, Colorado. 
 
 Direct examination. 
 
 By Mr. Hayt : 
 
 I am sixty-two years old, past. I am at present brigadier general 
 of the United States Army, commanding the Department of Colo- 
 rado, with headquarters in Denver. I have been connected with the 
 
744 
 
 THE STATE OF KANSAS VS. 
 
 United States Army for a little more than forty-two years. My 
 duties in the army have taken me into the State of Kansas and upon 
 the Arkansas river. I came to Kansas first in September, 1866. I 
 was then first lieutenant in the Thirty-seventh infantry, and in com- 
 mand of a company. In going up the river from the south I landed at 
 Fort Leavenworth and remained there a few days and then marched 
 to Fort Riley, and then to Fort Harker, Kansas. Fort Harker is 
 near the town now known as Elgin. I marched from Fort 
 
 2520 Harker to Wichita in November 1866. We were, I imagine, 
 about a week on the road going down with foot troops. It 
 
 was probably the last of November or the first of January. In Sep- 
 tember, 1867, I left Fort Harker en route for New Mexico in com- 
 mand of the 37th infantry. We didn’t exactly get to the river until 
 near by Fort Zarah. Then we marched from there virtually in the 
 valley of the Arkansas river to Fort Lvon. Fort Lyon is about 
 thirty miles up the river from Bent’s old fort. That was in Septem- 
 ber. We arrived at Fort Lyon I should say about the first of Octo- 
 ber. There we crossed the Arkansas river and went up the 
 
 2521 Purgatoire and crossed over Raton pass and into New Mexico. 
 I remained in New Mexico until the winter of 1868-9. I 
 
 spent the winter of 1869 and all the year 1870 at Fort Hayes. I was 
 quartermaster there. During that time I very frequently crossed 
 the river at or near Fort Doclge. I was transporting supplies to old 
 Camp Supply, in the Indian Territory, even going down as far as 
 Fort Sill in Oklahoma. Rather late in the fall of 1871 I was sent 
 over to Fort Larned in the Arkansas valley, on the left bank of 
 Walnut creek. I may have the dates a little confused. There as 
 quartermaster I had a great deal of transportation and shipping to 
 do, crossing the Arkansas river up the river to Fort Dodge and down 
 the river to Fort Zarah. * Fort Zarah is not very far above where 
 Great Bend is now. 
 
 I have crossed the Arkansas river innumerable times almost all 
 the way from Pueblo down to Great Bend and at Wichita with 
 troops and wagon trains, and have travelled along its banks 
 
 2522 during those years. We couldn’t get away from the river. In 
 marching out from New Mexico we had to keep to the banks of 
 
 the Arkansas. Between Fort Zarah and Fort Larned the channel 
 of the river was very often a great wide sandy bed with no appear- 
 ance of a river or anything of the kind, and then again we would 
 find it probably for some miles running water. The banks are 
 always low. There were no precipitous banks at all. I think I 
 can describe the appearance of the Arkansas river a greal better by 
 repeating what Senator Depew once said about the Rio Grande — 
 that it was the only river he had ever seen where the sand was on 
 top and the water underneath. I don’t suppose there is a month of 
 the year in which I have not crossed the Arkansas river or travelled 
 up and down its banks. Sometimes without warning a tremendous 
 flood would come down the river that would tie us up so that we 
 
THE STATIC OF COLORADO ET AL. 
 
 745 
 
 couldn’t cross it. I have been tied up that way as many as 
 
 2523 five days at a time, and at the end of that time the water 
 would almost entirely disappear. There would be no water 
 
 there at all. We never used to hesitate to march on trips along the 
 Arkansas river or to cross it, and never hesitated going into camp if 
 there was not even asignof water, because we never failed to get water 
 by going down a foot or two or three or four feet. I have tried to 
 cross the river several times with wheels, and it was not infrequent 
 that we would have to dig our wagons out of the sand. It would 
 turn dry and the least wind would keep the sand moving. If we 
 had the troops, even with foot troops, we would march in two lines 
 the width of the wagon back and forth two or three times until we 
 got it treaded down so that the water would almost appear on the 
 surface, and then it would be packed hard enough so that the wagons 
 would go over it without any trouble. It was on account of the 
 quicksand in the bed of the river, and as we treaded it down the 
 water would come up and the wet sand would carry the wagons 
 better. The conditions I have just spoken of in reference to the 
 river being dry would extend for varying distances. Sometimes it 
 would be twenty-five or thirty miles and then again there would be 
 a rippling of water on top and this water would rise almost invaribly 
 at night when the sands would be damp and sometimes the water 
 would come up and be flowing in the morning, but as soon 
 
 2524 as the sun came up it would disappear. This dry bed of 
 sand extended all the way from Larned to Bent’s old fort. 
 
 After we got to Bent’s old fort I never saw the river dry above. I 
 should say that Bent’s old fort was about sixty or seventy miles 
 below the present town of Rocky Ford, and about thirty miles 
 below Fort Larned. I have never seen the river bed perfectly dry 
 during that whole distance. I have seen it when the water was in- 
 termittent. It would run a few miles and then disappear, as it does 
 in all those streams down there, — the Cimarron, etc. 
 
 2525 As to floods, I can say this, that in June, July and into 
 August we always looked for the Arkansas to be full of water, 
 
 and it was attributed by people who pretended to know that this 
 was caused by the melting of snows in the mountains. In other 
 months of the year we would have those tremendous storms and the 
 river would rise almost without any warning at all of its coming, 
 and would go off about as fast as it came. That was attributed to 
 heavy rains or cloudbursts or something of that kind, and it ran off 
 very quickly. It was seldom more than 24 hours that we would 
 have to wait for it to run off. I remember one year the buffalo 
 hunting for water. I think it was in 1870 or 1871; I would not be 
 sure about that. I had a big train at Fort Dodge going down to 
 Fort Supply with it, and we had to dig for water at Fort Dodge. I 
 camped about three miles down stream from the post and the buffalo 
 werejapparently crazy for want of water. We dug these holes and 
 we could scarcely keep them from the holes and get our mules down 
 
740 
 
 THE STATE OF KANSAS VS. 
 
 there to water, on account of the buffalo crowding in. That 
 
 2526 was on account of the scarcity of water. There was no water 
 in Walnut creek that year, which was quite remarkable, be- 
 cause Walnut creek has always had more or less water. 
 
 In July, 1874, what was known as the Indian Territory expedi- 
 tion against the Kiowas and Comanehes was mobilized at Fort 
 Dodge, and we crossed the river there dry shod. There was not 
 water enough in it to fill a canteen ; that is, on the surface ; that 
 was in July. We crossed it right opposite Fort Dodge. In 1871 
 when I crossed it it was, as I have already explained, — there were 
 places where it would be perfectly dry, and at other places there 
 would be water. That is the normal condition of all those streams — 
 the Smoky Hill, the Cimarron, etc. We could travel along the bank 
 and see running water for a few miles, and then there would be ab- 
 solutely no indication of water at all. 
 
 I have been more or less familiar with the river from 1866 up to 
 the present time. I went clear down to a little town called Chilocco, 
 where there is an Indian school, by railroad. We travelled a good 
 deal of the distance along the Arkansas river, and of course in trav- 
 elling east on that road I travelled over that portion of the road in 
 the night, and coming back I could see everything on the 
 
 2527 return trip in the daytime. I was interested in seeing the im- 
 provements of the country, and that led me to watch the 
 
 conditions and note them carefully, with no idea other than to see 
 if there were any changes in the river and in the conditions. 
 
 From my observations extending over this long period of years 
 from 1866 up to the present time, I do not note any material changes 
 in the condition of the river as to water since 1885, as compared 
 with the conditions existing prior to 1885. I don’t think I have seen 
 sufficient difference to even call to my mind the comparison. I 
 know that the country along the Arkansas river has advanced in 
 every way perfectly marvelous — absolutely surprising. I would not 
 have given a nickel an acre for the whole country west of Wichita 
 when I first went out there, and now you see fine big farms and 
 everything growing there that will grow in any place in the world. 
 In my judgment, there is just as much water in the Arkansas river 
 on the average between Great Bend, Kansas, and Rocky Ford, 
 
 2528 Colorado, as there was prior to the year 1885. (Objection.) 
 I can say that without any hesitation whatever. I can add 
 
 to that, that I make this statement backed up by the wonderful im- 
 provement in the country along the Arkansas river. As to the 
 months of July, August and the early part of September, we always 
 expected to see water in the river during that time. I never saw 
 the time in those months when the water was not running in the 
 Arkansas, but it sometimes got rather low — just a little rivulet 
 sometimes. It usually commenced to get low from the early part of 
 September and on up until the next June. I am speaking now of 
 the time when it got almost perfectly dry in places. This did not 
 occur frequently during the months of July and August. Of course 
 
THE STATE OF COLORADO ET AL. 
 
 747 
 
 it depended, I suppose, a great deal on the amount of snow in the 
 mountains that was melting and coming down. It usually 
 
 2529 got lower in July and August than prior to that time. It 
 dwindled down so that by the latter part of September there 
 
 was scarcely any water at all. I do not recall any time when we 
 had to dig for water for stock in either the month of July or August, 
 because in those months we always expected to find water in the 
 river. There would always be some water running, but not very 
 much. It depended on the snow fall for its source of supply. 
 
 Cross-examination. 
 
 By Mr. Ashbaugh: 
 
 I do not recall that I have ever been at such a place as Garden 
 City. I don’t recall the location of Garden City. 1 don’t think I 
 was ever in such a place. It is probably a town that has been 
 located and built up since I have been in the country. I have come 
 up through from Larned west by rail. There was no such 
 
 2530 town there when I was stationed on the river. I think I 
 remember that town now. I was passing through there last 
 
 July. I was there in July. When I was there in July there was so 
 much water we were held up with the train for two days and 
 couldn’t move. This was July, 1904. According to the newspaper 
 reports and weather reports July of 1900 was very wet all over this 
 country. I imagine that it was the wettest year ever known in this 
 country. I was down through the country in 1866, 1868, 1869, 
 1870, 1871, 1872, 1874, 1875 and in the spring of 1876, and I then 
 again was through there by rail in 1898, 1900, 1903, and 
 
 2531 1904. In 1898, as I have explained, the river in places 
 would be perfectly dry and in other places there would be a 
 
 trickling of water. I saw it dry in several places between Fort 
 Larned and where the railroad crosses the river. I have seen it dry 
 right there at La Junta. We always expected to find flowing water 
 in the river during the months of June, July and August. I mean 
 there would be running water all the time through June, July and 
 August. I have seen it twenty-five feet deep, and then 
 
 2532 again not an inch deep. The whole valley would sometimes 
 be absolutely flooded with water. You could not get near 
 
 the bed of the stream. Of course this would not be the average 
 flow of the river at all, but that is the best description I could give 
 of it. I would see it in that way, and then again there wouldn’t be 
 more than an inch of water. When the water was flowing during 
 these months, say from Fort Larned to Fort Dodge, it would be ou 
 an average from one to two feet deep. It very seldom came up over 
 the axle trees of our wagons. It was then fordable. I have seen it 
 when it was not fordable. I have been tied up repeatedly on the 
 banks of the river, as I have explained, ou account of very heavy 
 rains or cloudbursts or something of that kind. That is what we 
 feared more than anything else. We never thought of the high 
 
748 
 
 THE STATE OF KANSAS VS. 
 
 water of June, July and August. We felt that we were always sure 
 of finding water in the Arkansas river during those months, that is 
 all, and during those three months we very seldom had high 
 water from rains. This water during those months was at- 
 5083 tributed to the flow from melting snows. I couldn’t say of 
 my own personal knowledge that that water did not come 
 from rains in Kansas. I am outgiving the expressions and under- 
 standing I have gathered from people whom I have known, that it 
 was the result of melting snows. That was the source of the water 
 supply. The months of June, July and August were not months 
 when we had the rains in Kansas. I don’t recall anything of that 
 kind, nor any rise of water in the Arkansas river from those sources. 
 If it did come I don’t know anything about it. I never observed 
 any irrigating ditches at Garden City. I only know from descrip- 
 tions pretty nearly where it is. I don’t know anything about it — 
 that from about 1880 to 1887 there was plenty of water in the river 
 to supply these ditches at Garden City. I don’t know that since 
 that time they have not had any water to supply them. My 
 2534 observation has not been such as would warrant me in an- 
 swering the question affirmatively or otherwise. (Objection.) 
 
 Redirect examination. 
 
 By Mr. Hayt : 
 
 I have heard the supply of water in June, July and August attrib- 
 uted to the melting of snows, but I don’t know anything about it 
 myself. I simply know that we looked for water during those 
 months, and people who should know that country would always 
 say that this was the result of melting snows, and that has been my 
 experience with reference to other mountain streams — the Yellow- 
 stone, the Cimarron, etc. I know that in the Yellowstone it came 
 from the melting snows in the mountains. As to my statement on 
 cross examination that the water was high in the Arkansas river in 
 June, July and August, I wish to be understood as saying 
 2535 that there was more water in the river. Possibly on one or 
 two occasions, but very seldom, we were detained on account 
 of high water in those months in crossing with wagons; and when 
 I speak of finding water there I mean we found sufficient water for 
 our stock. We always found sufficient for watering stock. We never 
 hesitated to camp along the banks of the Arkansas river no matter 
 what was in sight. We could always find water. In fording the 
 river ordinarily during the months mentioned the water would very 
 seldom go above the axle trees and the wheels would sink into the 
 sand more or less. 
 
THE STATE OF COLORADO KT AL. 
 
 749 
 
 2536 Henry Hegwer, Denver, Colorado. 
 
 Direct examination. 
 
 By Mr. Hayt: 
 
 I live at Denver, Colorado ; I am sixtv-one years old ; I am a con- 
 tractor and builder. I have lived in Colorado permanently since 
 1889, and was State boiler inspector for the State of Colorado for 
 two years. I have also lived in the State of Kansas. I came there 
 in November, 1857, and lived there until 1879. When I came into 
 Kansas in 1857 I was fourteen years old and come there with my 
 father and mother from the State of Wisconsin and settled in Chase 
 county on Diamond creek, eight miles below the old Santa Fe trail, 
 at Diamond Springs. 
 
 2537 The first time I saw the Arkansas river was in 1859, in 
 November. We were hauling hay from Council Grove to 
 
 Larned, Kansas, for the Government. Fort Larned was about four 
 miles from the Arkansas river. The country at that time was called 
 the Great American desert, and I think it was very well named. 
 At the present time the country is most fertile, as good as any in 
 the United States, I think, — as productive. I saw the Arkansas 
 river again in the early spring of 1860. We also hauled hay dur- 
 ing that year. I think the next time I saw the river after 1860 was 
 in 1867. I saw it quite a number of times in 1867. The next time 
 I saw it was in 1871. In 1872 I moved to Hutchinson, Kansas, and 
 lived there until 1889. At Hutchinson I was engaged in farming 
 a big part of the time. I also saw the river in the fall of 
 
 2538 1865 and the spring of 1866. I had forgotten that. I had a 
 contract there at Fort Zarali. At the time I camped upon the 
 
 banks of the river in 1859 there was no water in it. That was near 
 Great Bend, where Ellinwood now is. Ellinwood is six miles east 
 of Fort Zarah. 
 
 In the fall of 1859 we travelled the river from Great Bend to 
 Larned, making four or five trips. The distance is about thirty-five 
 or forty miles. The river was dry all that time, and we got our 
 water out of the Walnut and then out of a big pool on Ash creek. 
 We got our next water out of the Pawnee. I was there in Novem- 
 ber and December, 1859, and in January and February, 1860. 
 
 2539 The buffalo were pretty scarce at that time. It was on ac- 
 count of the drought that they were scarce. The first herd of 
 
 buffalo that I had ever seen in my life was in 1858. That herd ex- 
 tended in width from Cottonwood, on the old Santa Fe trail, to Great 
 Bend or over onto the Walnut, a distance of about eighty miles. 
 They passed a given point for seven weeks. They left the country 
 absolutely barren of everything. There was nothing left but wal- 
 lows — and the surface of the country was as rough and barren as 
 you could possibly imagine. There was not a sign of vegetation 
 
750 
 
 THE STATE OF KANSAS VS. 
 
 anywhere. The next year the river was dry and there were no 
 buffalo there. 
 
 In 1805 I had a beef contract at Zarah. We drove the cattle 
 there in the fall. There was some water in the river when we came, 
 but along in the spring we had to take them away from there and 
 drive them up the Walnut river for water. There was not 
 
 2540 sufficient water for stock there in the fall without digging for 
 it. In 1867 I was contracting with Sharp and Shaw of the 
 
 Kansas Pacific road at Fort Harker. I then took a contract for sup- 
 plying them with buffalo meat and I established a camp on Plum 
 creek. While I was hunting buffalo there we often ran down as far 
 as the Arkansas river. It was about the mindle of August when 
 we reached the river and we stayed there for nearly a month, 
 
 2541 and finally were compelled to leave there on account of the 
 scarcity of water. There was not enough water for our stock. 
 
 When we went there there was quite a little flow, quite sufficient for 
 our use. As to the other years about that time, as a rule in the 
 spring of the year there was always water in the river, but along in 
 the fall of the year especially it was scarce always, especially from 
 Granada down to the mouth of Cow creek. The distance between 
 these two points is about 200 or 250 miles I think. As to the bed of 
 the river between the points named, well, there is a large ridge of 
 sand lying along the south bank, in many places running clear across 
 the river; that is, the river runs through the sand ridges and in 
 heavy wind storms very frequently it would drift entirely over across 
 the river, so much so that when the water raised when and freshets 
 came it would bank up high and finally break over the wash and chan- 
 nel through again. The river bed the whole distance was composed 
 of sand. The banks were very low, averaging possibly two to 
 
 2542 four feet. The last time I think I passed up the river by 
 wagon was in 1880. I have passed down by railroad several 
 
 times. I homesteaded on the Arkansas river for six months, in 
 1874 I think it was. This was six miles west of Hutchinson. Part 
 of the land I farmed lay across the river and I had occasion to cross 
 it every day. I lived there several years ; the balance of the time I 
 lived on the river at Hutchinson, and during the years I have men- 
 tioned I had occasion to see the river every day. In the spring of 
 the year there was generally a fair flow of water, sometimes 
 
 2543 bank full, and in low places it would overflow. In the fall of the 
 year there never was a time but what you could walk across it. 
 
 I don’t remember a year but what you could walk across it 
 without wetting your feet. As a rule, in the month of July there 
 was some water, but it was always so that we could cross it. The 
 difficulty in crossing it would be possibly in May and June. There 
 was always enough water for stock in July and August. 
 
 I built an irrigating ditch for my homestead in Kansas in con- 
 nection with my neighbors living east of me. We took out the ditch 
 from the Arkansas river. We completed the ditch, but by the 
 time we got done there was no water to run in it. There never was 
 
THE STATE OF COLORADO ET AL. 
 
 751 
 
 a time while I lived there that there was any water in the river 
 when it was necessary to irrigate. I mean when it got dry and 
 warm the river had no water, and when we did have water there 
 was enough moisture and rain so that it was not necessary to irri- 
 gate. The farmers in that locality depended entirely upon the 
 rainfall to produce crops. They did then and they do yet. 
 
 2544 There has not been a time from the time I first saw the 
 country but that it has improved constantly, and more 
 rapidly in the later years since they began irrigating in Colo- 
 
 2545 rado. In the early days when that country was hard and 
 dry it was an American desert, and it never rained only 
 
 when it poured down. It came in great storms sweeping over the 
 prairie at such a rate that you couldn’t hold your hat, and we 
 would have to back the wagons up against the storm to keep the 
 wind from blowing them over. These conditions do not exist any 
 more in these days. Of course thunder storms come over the 
 country, but they are mild and most generally small, little drizzling 
 rains, to what they were then. I attribute this change to the culti- 
 vation of the soil, the irrigation of the lands, the planting of trees 
 and orchards, and everything of that kind, holding the moisture, 
 instead of the surface being dry and hard like a paved street, run 
 over by the buffalo, for then when it did rain and these great storms 
 would sweep over the country the water would run off into the 
 gullies and streams and down into the creeks and rivers and the 
 next day the wind would be blowing the sand the same as before. 
 
 That same country where we had to haul the hay in those days to 
 feed the horses is now supplying us with hay. We get a great deal 
 of the finest hay in the market in Denver from that country, 
 
 2546 and even from farther west. The grass when it rains holds 
 the moisture. It soaks down into the ground, and when it 
 
 gets warm you can see the steam rise, and in the night when it gets 
 cool you can see the grass wet with dew, something that never could 
 have occurred in those days, because there was no grass for the dews 
 to fall upon and there was no dew to fall upon the grass. 
 
 We built the irrigation ditch I have spoken of in June and July, 
 1874. I have seen the progress of irrigation, and it surprises me 
 wonderfully, at Fort Collins, Colorado, in 1862. Others living in the 
 vicinity of my homestead in Kansas were cognizant of the fact that 
 irrigation was going on in Colorado all those years. We all knew 
 it. It was a general matter of discussion among the farmers of that 
 locality, and many along the river thought they would like 
 
 2547 to dry it, but after my neighbor and myself tried it and found 
 we couldn’t get any water out of the river to irrigate when it 
 
 was necessary there didn’t any more of them want to try it, and in 
 fact the seasons improved so much that we found it was not neces- 
 sary to irrigate. 
 
 I want to state that in the year 1858 when I saw my first buffalo 
 we were up on the Smoky hill where Salina stands now. They had 
 rooted up the country so dry and bare that there was nothing for 
 
752 
 
 THE STATE OF KANSAS Vs. 
 
 our cattle to eat. We were there three days and had to cut down 
 the cottonwood trees to let the cattle browse on them while westayed 
 there hunting, and the leaves on those trees were brown and dead, 
 I imagine from the sun shining on the sand and what they called 
 the hot winds that scorched and rusted the leaves of the trees until 
 from all appearances you would think the trees were dead. 
 
 2548 There were very few trees along the streams. There was a 
 little timber on the Walnut and the Pawnee — a little more 
 
 than on any of these other streams. These were all cottonwoods. 
 At that time there were some trees up and down the Cottonwood, 
 and down below Marion Center there was quite a little bunch of 
 trees, and when you got farther east you would find oak and hickory 
 and ash and all that kind of timber. They have got all kinds of 
 forests in that country now. The increase in the acreage of the tim- 
 ber has been quite extensive for the last fifteen or twenty years. 
 Crops in Kansas perish in some years by reason of droughts. In 
 1860 we iost everything, and we had partial failures in other 
 
 2549 years, but not as much as that year. When those dry years 
 came it affected the crops up to the banks of the stream. 
 
 There was no perceptible difference; in fact the corn on the very 
 sandy suil would wilt before that on the uplands — would show the 
 drought — because the highlands as a rule in Reno county have a 
 sub-soil of slate and soapstone. The sand would dry out so much 
 that the crops would be poorer in the valleys and along the sandy 
 lands than up on the high lands. I sold my place because it was 
 too sandy. My place was on the river, and the crops didn’t do as 
 well as they would on higher grounds to-day. 
 
 Q. You have never heard any claim made that the crops on the 
 bottoms got water from the river? 
 
 A. Well, there might have been spots, but I never saw any where 
 it was very low. If there was it was so low that when there was 
 water it would overflow. 
 
 2551 Cross-examination. 
 
 By Mr. Ashbaugh : 
 
 I located my homestead in 1873 on the north side of the river. 
 The corner of it ran about three hundred yards from the bank of 
 the river. And then I claimed a quarter section of school land that 
 ran across the river. I sold my homestead in 1881. It was bottom 
 land — sandy. In spots there was some loam. We reached water 
 at about five feet anywhere, and we supposed that would be about 
 the level of the river. I had a drive-well and drove it right down 
 through the sand about thirty or forty feet to get water. We 
 couldn’t dig a well because it was nothing but quicksand when you 
 got down in there and it would cave in on you and you 
 
 2552 would get to quicksand just as soon as you got below the sur- 
 face, about a foot or two. Another reason we didn’t dig any 
 
 wells was because the surface water wasn’t fit to use, as a rule, and 
 
THE STATE OF COLORADO ET AL. 
 
 753 
 
 when you would drive a pipe down thirty or forty feet you would 
 get good water. My land was underlaid with quicksand. My land 
 was not considered the very best. I don’t think it is considered the 
 best land to-day. 
 
 I lived in Kansas in 1889. I have been down there three 
 
 2553 or four times. I can’t recall the dates. I passed through 
 there two years ago on my way to Washington, over the 
 
 Santa Fe. The valley there back to the foot hills is about three 
 miles wide. Cow creek runs between the place I took up and the 
 sand hills, and the Cow Creek bottoms, as a rule, are not as sandy as 
 the Arkansas bottoms. In 1874 I had about ten or twelve bushels 
 of corn to the acre. It was sod corn. We had some turnips. In 
 1875 I had one piece that yielded from fifteen to twenty 
 
 2554 bushels of corn and another that yielded about sixty bushels. 
 My corn crop was better in 1875 than in 1874, because it was 
 
 owing to the condition of the soil. It was older. It was ploughed 
 and loosened up and it was more productive. I think it was not 
 any wetter in 1875 than in 1874. In 1876 my crops were fair. 
 Corn crops were always pretty fair, and 1 always raised some pretty 
 good wheat there. I couldn’t say just exactly just how much 
 I raised, but my crops were pretty good. Yes, crops were 
 pretty good there in 1874, generally, as far as the older lands — 
 lands that had been ploughed two or three years — were concerned. 
 It was better than land just ploughed. I think the crops in 1874 
 were about the same as in 1875, and I don’t think there was very 
 much difference between 1875 and 1876. About 1878 there was 
 some short crops in there, but I can’t tell which years they were. 
 We always suffered more or less in the fall of the year for want of 
 rain, but the crop averaged good, especially small grains. In 1871 
 that was a barren country and there was nobody there at all. 
 
 2555 The Santa Fe railroad ran as far as Newton in 1871. The 
 road was extended up to Hutchinson, and in 1872 C. C. 
 
 Hutchinson started that town and the people went in there and took 
 up homesteads. I was down in that country about three years ago, 
 when I passed through there. I just passed through there at that 
 time. Since 1889 I have passed through Reno county once 
 
 2556 and went there once. The observations I have made have 
 been based upon these two trips, and this one visit since 1889. 
 
 I was up about Garden City either in 1873 or 1874 and made a trip 
 to the river. There were a couple of little ditches there. I think 
 “ Buffalo ” Jones had a ditch and about two hundred and sixty 
 acres of land, and had nice crops. The last time I stopped off in 
 Garden City was in 1880. 
 
 When I spoke of the river being dry in the fall of 1859, I will 
 state there was not a general drought over all this western country 
 in 1859 and 1860. The drought came after that. This was 
 
 2557 just before the drought. In 1859 it was good, you know. In 
 1860 was the drought. There was no rain in that county at 
 
 all in the fall of 1859 or during the spring or summer of 1860. The 
 
 48—7 
 
THIS STATE OE KANSAS V£. 
 
 fs4 
 
 great drought was in 1860 but 1859 was a very productive season. 
 It commenced getting dry in the fall of 1859. I don’t know whether 
 it is deeper to water in than country now than it was then or 
 
 2558 not. I don’t know whether it is deeper to water in the wells 
 than it used to be. I spoke of the river being full of water in 
 
 the months of May, June and July. This condition was regular 
 every year. (Objection.) I have known lots of times at Hutchin- 
 son when you couldn’t ford the river. It was generally in the spring 
 of the year — May, June and July. Whenever there was 
 
 2559 plenty of water in the river we always had plenty of rain. 
 I never went up to the source and don’t know where the 
 
 water came from. The rainy season during those early years was 
 generally in June and July. It hardly ever extended iiito July. 
 Sometimes it did. It strikes me that the grasshopper year in Kansas 
 was 1873, because I am quite sure it was the year after I 
 
 2560 went to Hutchinson. It might have been 1874. We didn’t 
 have good crops in Reno county in 1874. The country was 
 
 too new to have good crops. I raised some sod corn — about ten 
 bushels to the acre. 
 
 2561 Redirect examination. 
 
 By Mr. Hayt : 
 
 I took my homestead in the fall of the grasshopper year. I took 
 it from a fellow that gave it up on account of the grass- 
 
 2562 hoppers, then I moved onto the homestead the next fall ; so 
 that if the grasshopper year was 1874 I moved onto the home- 
 stead and built a house there in 1874. I am not sure about the 
 grasshopper year. I think it was 1873, but still it may have been 
 1874. It was so dry during those years that it is hard to make a 
 comparison one year with another. I went up to Garden City and 
 saw that little irrigating ditch the year after the grasshopper year, 
 the year after I took my homestead, and if 1874 was the grasshopper 
 year it was 1875 when I went to Garden City. It was at the time 
 
 when Garden City was the end of the Santa Fe road, and 
 
 2563 Garden City was established, and “Buffalo” Jones was 
 there. When I speak of high water in the Arkansas river 
 
 during those years I mean a flow of two or three feet of water. 
 During June and July the water would run up pretty high 
 
 2564 to the wagon box when you undertook to ford it ; the balance 
 of the time it was away below that. After that it would get 
 
 gradually lower and lower until the fall of the year you could go 
 across without wetting your feet. During the month of August, 
 unless there was some rain — showers — it was generally dry. We 
 usually had more rain during the months of June, July and August 
 than in an}' other months. 
 
'TttK StATtt OF COLORAtX) ET AL. 
 
 755 
 
 2566 Louis G. Carpenter, Denver, Colorado. 
 Cross-examination. 
 
 By Mr. Ashbaugh : 
 
 In my direct examination I gave the drainage area of the Ar- 
 kansas river. The whole area of the Arkansas river down to 
 
 2567 the Mississippi is about 186,000 square miles. If on my 
 direct examination I gave the drainage area of the Arkansas 
 
 river above Canon City as 2,600 square miles, that was about cor- 
 rect. The drainage area of the Arkansas river in the State of Col- 
 orado is about 26,000 square miles, as I recall it. The drainage 
 area of the Purgatoire river is in the neighborhood of 3,000 square 
 miles. 
 
 The average rainfall on the plains of the Arkansas river in the 
 State of Colorado is about 14 inches. It will not be above 
 
 2568 16, and probably not less than 14. The earliest record is at 
 Port Lyon, which is now called Las Animas, which runs 
 
 back to 1871, I think, to the organization of the Weather Bureau. 
 The average rainfall in the Arkansas valley in the western portion 
 of Kansas is of course the same as that in the eastern portion of Col- 
 orado. As a whole, it may be said that the rainfall tends to in- 
 crease as you pass eastward from the mountains, especially after you 
 pass eastward the first hundred miles. There is a progressive in- 
 crease, reaching 20 inches at Dodge City and 30 inches at Wichita, 
 and an increase as you reach Arkansas City. From Dodge City 
 west to the State line the average rainfall I should say was about 18 
 inches, and I think at the western border of Kansas it is close to 16 
 inches. The measurements at Dodge City go back to 1874. I think 
 there are no continuous set of measurements along the Arkansas 
 river proper west of Dodge City. There has been “ fugitive ” meas- 
 urements, but not continuous, so far as I have been able to deter- 
 mine. 
 
 Deferring to plate No. 113, as shown in Defendant Colorado’s Ex- 
 hibit 23, I think the date when that plate was prepared is 
 
 2569 shown by the date of publication. It is in the Annual De- 
 port of the United States Geological Survey for 1899-1900. 
 
 The date of the preparation of the monograph of course I do not 
 know. It must have been before the time of publication, and I 
 think not long before. It would be my supposition that it was pre- 
 pared within a year or two before that. I think this plate does not 
 profess to show what the condition of the river was in the earlier 
 years, long prior to the preparation of the plate. It is a map with- 
 out explanation as to the date when it was prepared. 
 
 Defendant Colorado’s Exhibits 4, 5, and 6 were introduced, show- 
 ing certain measurements of floods in the Arkansas river during the 
 year 1904. I think I presented one of a previous year also. 
 
 2570 Those of 1904 were made by different parties under my direc- 
 tion. These measurements were obtained by observeis under 
 
?se 
 
 THE STATE OF KANSAS V8. 
 
 our different instructions and for different purposes ; that is, they 
 were to observe simply the river on a gauge fixed on rods by us, and 
 they were to simply note the height of the water. At several places 
 gauges were fixed by the United States Geological Survey and we 
 used the same gauge where that gauge was situated so as to be a 
 good record. One place was at Dodge City and another one at 
 Hutchinson. At Wichita it was put in place originally by the 
 United States Weather Bureau. At Arkansas City we put in a gauge 
 ourselves, and afterwards the Geological Survey put in one 
 
 2571 on another bridge. Another one was established at Kinsley 
 and another one at Garden City. These two were established 
 
 by Professor Meyers. The gauge at Kinsley has not been in exist- 
 ence except for 1903 and 1904. It was read by a young lady who 
 lived at the nearest house, which was the only house adja- 
 
 2572 cent to the gauge. The person who read the gauge at Garden 
 City was simply employed to report the river as it is on the 
 
 gauge. During these particular floods I believe I passed down the 
 river at Garden City in addition during the time of the first one or 
 two floods. We had other men stationed there. I was there myself 
 during part of the floods and took some of the readings of 
 
 2573 the gauges myself. I know that those readings were right 
 that were taken when I was there. I have not checked up 
 
 the readings constantly by personal attendance. I have said from 
 time to time that we have had others going there who have taken 
 readings which have corresponded with readings at that time taken 
 by the observers. So far as we can trace people’s testimony we have 
 placed faith in them. I don’t know whether their readings 
 
 2574 are correct or not, from personal examination. I was taking 
 their statements of the height of the water, and I have com- 
 plete faith in their accuracy. 
 
 I stated in my direct examination that the first flood of 1904 went 
 between two and three miles an hour, and that is correct. I 
 
 2575 remember another flood distinctly, which was at Dodge City 
 on Saturday mor-ing and reached Hutchinson at six o’clock 
 on Monday evening. The distance from Coolidge to Hutch- 
 
 2576 inson is 260 miles, and if a flood went two miles an hour it 
 would of course take 130 hours ; at three miles an hour it 
 
 would take eighty odd hours. That of course is different from the 
 velocity of the stream, that is, the velocity of a cross-section. In the 
 first flood of 1904 between Coolidge and Garden City the loss was 
 43 per cent.; in the second flood the loss was 41 per cent.; in the 
 third flood the loss was 46 per cent, and in the fourth flood the loss 
 was 48 per cent, between those two places. 
 
 I stated in my direct examination from our tables that for the 
 last sixteen years the average flow of the river at Canon City was 
 about 750 cubic feet per second of time. I stated in my direct ex- 
 amination that water passing the Colorado-Ivansas State line would 
 lose about 70 per cent, of its volume by the time it reached Wichita, 
 
THE STATE OF COLORADO ET AL. 
 
 757 
 
 and as a general statement that is correct. I will illustrate 
 
 2577 this as to one particular flood. In that flood we had 5,700 
 cubic feet at Dodge City, and at Wichita we had about 1,300 
 
 cubic feet, including what came in with the Little Arkansas river. 
 
 In my direct examination I made an extract from Major Pike’s 
 work, found on page 445, volume II, Coues’ edition, beginning : 
 “ Sunday November 16th.” The next two sentences are as follows : 
 
 “ Sunday, Nov. 16th . — After ascertaining that the Spanish troops 
 had ascended the right branch or main river, we marched at two 
 o’clock. The Arkansaw appeared at this place to be much more 
 navigable than below, where we first struck it ; and for any impedi- 
 ment I have yet discovered in the river, I would not hesitate to 
 embark in February at its mouth and ascend to the Mexican moun- 
 tains, with crafts properly constructed. Distance 11J miles.” 
 
 2578 The date I have reference to in the previous quotations 
 which I made in my direct examination I think was October 
 
 16. I am inclined to think that Major Pike here referred in the 
 upper part of the river to the navigation of the river in only canoes 
 or buffalo boats or buffalo skins. I think where he refers to “ crafts 
 properly constructed ” he means properly constructed with exceed- 
 ingly shallow draft. I think you will find some reference some- 
 where else, either in that or in Long, to the buffalo boats. 
 
 2579 It is my judgment that his idea was, where he speaks of the 
 river being navigable in the upper part, that the navigation 
 
 was for buffalo skin boats, or, as stated in the previous testimony, 
 for canoes. 
 
 In my direct examination I referred to the work on “ Kansas and 
 Nebraska” by Edward Everett Hale. On page 115 of the same 
 volume from which I quoted the following paragraph is found : 
 
 “ It is said, however, that a steamboat can ascend at full water 
 within twenty-four miles of the Great bend — the point where the 
 river gains its greatest northern latitude.” 
 
 Mr. Hale was not referring to steamboats made out of buffalo 
 skins, but is evidently stating it not on his own knowledge. 
 
 2580 The sources of the water in the river flowing at high water 
 in June, July and August come in the largest part from rains, 
 
 and in Kansas most of the water comes from rains. June, July and 
 August in Kansas are the heaviest water months, as they are in 
 Colorado. Near the mountains in May and June the largest part 
 of the water comes from snows or the rains coming during the same 
 time. In my direct examination I quoted from Colonel Richard 
 Irving Dodge as follows : 
 
 “In June when the mountains send forth their flood of melted 
 snow the river swells.” 
 
 He is stating his opinion of the matter. 
 
 I made a quotation from the “ Ford County Globe” of July 23, 
 1879, which was found in the historical library at Topeka. I did 
 not make the extract personally, but I think it was correctly 
 
 2581 made. This quotation was made by Mr. Daniels, the librarian 
 at the State Agricultural College of Colorado at Fort Collins. 
 
758 
 
 THE STATE OF KANSAS VS. 
 
 I do not know that in the very same article, a little later on, this 
 sentence is found : 
 
 “ On Sunday the river filled up again as suddenly as it went 
 dry.” 
 
 I do not recall that I gave all of his report, but I think that is all 
 that I gave. If the sentence just read appears on the same page of 
 the paper I would have no more doubt about it being correct than 
 the extract which I gave. 
 
 2582 In my direct examination I made an extract from the 
 “ Transactions of the Kansas Academy of Science,” volume 
 
 IX, by B. B. Sraythe, in which he says: 
 
 “ In summer when the prevailing winds are south the river is 
 filled with water and no sand is blown out.” 
 
 I have no doubt that this is his belief. As to his conclusions, I 
 do not guarantee that I believe all the deductions that are drawn. 
 At the bottom of page 131 of this work the following sentence 
 occurs : 
 
 “ The Arkansas bears evidence of being an older and maturer 
 stream than the Kaw — perhaps because its bed is filled every 
 summer with water from the mountains; perhaps because during 
 each platonic winter there may be many summer seasons when the 
 Kaw is bound in ice that the Arkansas is free to run.” 
 
 In my direct examination I read an extract from Major 
 
 2583 Long’s dairy, found on page 258. The balance of the para- 
 graph, found on page 258 and concluded on page 259, is as 
 
 follows : 
 
 “ The current of the Arkansa- is much less rapid than that of the 
 Platte, but the character of those two rivers in a considerable degree 
 corresponds, in their widely spreading waters of but little depth, 
 running over a bed of yielding sand. The rise of the waters at 
 Belle point takes place in the months of March and early April, 
 with a less considerable freshet in July and August. But to this 
 place navigation is seldom practical for keel boats, from the month 
 of August to February inclusive, though the autumnal freshet of 
 October and November frequently admits their passage.” 
 
 I quoted from “ The Journal of Jacob Fowler,” and I recollect that 
 he made some statement somewhere about the ice floating down the- 
 Arkansas river, and by looking at the volume again I find that oa 
 page 32, under date of November 1, 1821, he makes such a state- 
 ment. 
 
 I made an extract from the works of Captain Chittenden, in which 
 he says that “ the Arkansas river is not a navigable stream in 
 
 2584 this part of its course.” He evidently does not refer to the 
 river being navigable in some parts for boats made of buffalo 
 
 skins. He has had a good many years of experience between the 
 time when Pike wrote and the time when Chittenden wrote also. 
 
 I referred in mv direct examination to “ Executive Document No. 
 90, of the 49th Congress, first session.” At the bottom paragraph, 
 on page 2, of the date of 1886, the following sentence is found : 
 
THE STATE OF COLORADO JfiT AL. 
 
 759 
 
 “ There is no doubt but that a two-foot channel can be provided 
 whenever the development of the country warrants it, and the river 
 should be for all purposes of law rated as navigable to Wichita, 
 Kansas.” 
 
 That is the report of Captain Taber. 
 
 I referred in my testimony to the Arkansas river being similar to 
 a plains stream. It was such as is mentioned by one of those 
 
 2585 quotations read this morning, from Mr. Long, and such as 
 was read in direct examination, from Mr. Chittenden, that 
 
 the plains streams are streams that instead of receiving perennial 
 tributaries and an accretion to their volume from springs tend con- 
 stantly to decrease for some time instead of increasing as most streams 
 through humid countries do. 
 
 I referred to an article on the “ High plains and their utiliza- 
 tion ” prepared by Willard D. Johnson, on page 733, the second 
 sentence from the top of the page, is the following : 
 
 “ Perennial streams, strictly so called, lie below the water plane; 
 intermittent streams above.” 
 
 In the same volume, at the bottom of page 694 and the top of 
 page 695, the following paragraphs are found : 
 
 “It failed in turn, however, because of increasing demands 
 
 2586 on the river in the arid belt to the westward, in Colorado, 
 resulting finally in the drawing off of its total run during the 
 
 growing season. It soon came to be facetiously remarked of this 
 elaborate and well-devised irrigation system that it constituted the 
 finest display of dry ditches in the arid lands. 
 
 The out-of-season flow of the Arkansas at Garden still goes by, but 
 large undertakings already on foot looking to storage in the moun- 
 tains foreshadow the eventual complete disappearance of the river 
 in western Kansas, except as it may from time to time be briefly 
 rejuvenated by floods too large to be manageable.” 
 
 2587 I referred in my evidence to certain measurements that had 
 been made of the underflow or ground water at Mount Hope, 
 
 Colwich and Arkansas City, Kansas. These measurements at Mount 
 Hope were made by Mr. Hubbel and Mr. Payne. Mr. Hubbel is a citi- 
 zen of Colorado and Mr. Pavne lived at Wichita, Kansas. Yes, Mr. 
 Payne was employed by me, representing the State of Colorado, and 
 has been in my employ since some time in August, 1904. I 
 
 2588 did not make any of these measurements myself. In each of 
 these places a rod was placed at the river at a number of points. 
 
 At Mount Hope we had several lines of wells. For the Mount Hope 
 measurements, for a line of walls north of Mount Hope, the height 
 of the water m the river is measured from the top of a rim of an 
 iron pier on the east side of the bridge, which bridge is north of 
 Mount Hope, across the Arkansas river. This line of wells is straight 
 north of Mount Hope, on the east edge, I think, of the corporate 
 limits. These measurements were begun from the bridge di- 
 
 2589 rectly north of Mount Hope and ran both north and south, going 
 south practically a mile. In my direct examination I did not 
 
760 
 
 THE STATE OF KANSAS VS. 
 
 give any report of their measurements south. My recollection is, 
 without consulting the notes, that the well three quarters of a mile 
 south of the river at the corner of the road shows lower than at the 
 bridge. It is at a section corner. These measurements south are 
 not completed. We have no other reports of measurements south 
 of the bridge at that point and on that line. We have other wells 
 straight east of Mount Hope and south of the river. They show 
 that the water there is considerably higher at the river three miles 
 east of the point where the observation was taken. 
 
 Q. In other words, the water is higher up stream than it is 
 below? 
 
 A. Yes, sir. 
 
 2590 The line north from the Mount Hope bridge ran about 
 seven miles. There was a considerable rise there in the water 
 
 level above the water level in the river at the bridge. I do not 
 recall just those figures. The measurement of one set of walls was 
 made directly on that line running directly north of the bridge. I 
 myself was not up over that line, but I know something of 
 
 2591 what kind of a country is found up there. From the re- 
 ports of the observers and from the topographical maps 
 
 which I examined and used to indicate the points where to locate 
 the wells before they went, I knew the general lay of the country. 
 Shortly north of the river you cross the branch of a creek two miles 
 north that comes near a lake, which I think is called West lake. 
 We had no measurement taken very near it; half a mile away, 
 perhaps. A little less than half a mile, and at a distance of seven 
 miles, they found the ground was hard, clay and hardpan, and found 
 it impossible, with the means at hand, to sink wells clear down to 
 the water. I do not recall any more lakes there. The one I referred 
 to covered quite a number of acres. I do not recall Patterson’s 
 lake, at least not under that name. I could not tell how 
 
 2592 many lakes are located up there without referring to the map. 
 I could not tell what is the fall of the Arkansas river from 
 
 the Mount Hope bridge west for one, two or three miles, except by 
 comparing it with the general fall of the river. At Wichita the 
 general fall of the river is about four feet to the mile, and in my 
 direct testimony I gave the average fall all through there as it was 
 then fresh in my mind and I had the figures at hand. The fall of 
 the river at Mount Hope is not far from four feet per mile. 
 
 The measurements made on the Colwich line were begun at a 
 bridge as it crosses the river, I think on a township line, and I be- 
 lieve also a mile east of Colwich. It was the bridge nearest to being 
 north of Colwich. The bridge was practically a mile east 
 
 2593 and four miles north of Colwich and is located on the south- 
 east quarter of section ,27. These measurements were run 
 
 both north and south from the bridge. * We found, south, that the 
 line is running almost parallel with the river and that the wells 
 running down the river were lower than those up the river ; that is, 
 well No. 3 was lower than well No. 1 near the bridge. This is prac- 
 
THE STATE OF COLORADO ET AL. 
 
 761 
 
 tically the same thing that they found south of the river at Mount 
 Hope. The river in both cases runs southeasterly, although at the 
 Colwich line it runs almost south, close to the road. When they 
 went north from the Colwich bridge they found an increase in the 
 height of the water. In my direct examination I gave the exact 
 figures for the identical dates when the measurements were 
 
 2594 made. These holes or webs are there yet and they are con- 
 tinually making further examinations. When they ran 
 
 2595 north from the bridge at Colwich they found a well near the 
 farm of Mr. Hansen, a witness for the complainant in this 
 
 case, which is located about three or three and a half miles north of 
 the bridge. I do not now recall the level of the water found in the 
 Hansen well. I do not seem to have the memoranda here, and I 
 have no recollection of it except that it was considerably above the 
 river. I think it was about nine feet, but the exact figures I do not 
 recall. If in the figures that I gave the river was taken as 2 and 
 the measurement of the water in the Hansen well was 11.70, that 
 would show that the water level in the Hansen well was about nine 
 feet above the water level in the river at the bridge. I do 
 
 2596 not mean that that necessarily shows that the bridge is the 
 nearest point to the Hansen well at Bentley. When in mv 
 
 testimony I stated that the water level at the Hansen well was 9 
 feet above the level of the water in the river, we were taking it on 
 the available line of road which we could use — the public road. 
 This was taking it on a line directly north from the bridge. 
 The bridge is probably not the nearest point on the river to 
 the well, but prettylnear it. The fall of the river along there 
 I think is pretty close to four feet per mile. That is my present 
 estimate without remembering the figures. If the exact meas- 
 urement should show that the fall of the river there is six feet 
 per mile I should not be unprepared to accept it, though 
 
 2597 I should think that would be high for that place. The 
 fall of the river varies at places quite decidedly. At 
 
 Wichita the fall is four feet per mile. If a measurement from the 
 bridge at Colwich three miles up the river would show a fall of six 
 feet per mile, I would not be prepared to say that it was not a cor- 
 rect measurement. Then it would be true that a direct line across 
 from the Hansen well to the nearest point on the river would show 
 a rise in the water level of the river of at least twelve feet above the 
 water level at the bridge. Assuming that the nearest point in the 
 river to the Hansen well is two miles west of the bridge, then ac- 
 cording to my figures the water level in the river at the nearest 
 point to the Hansen well would be some three feet higher than the 
 water level in the Hansen well. I have not stated that the nearest 
 point in the river to the Hansen well is two miles west of the bridge. 
 Yes, on the supposition that it may be a mile and a half or two 
 miles or two and a half miles above the bridge to the nearest point 
 to the Hansen well, it would show that the water level in the river 
 was either as high or higher by at least two or three or five feet than 
 
762 
 
 THE STATE OF KANSAS VS. 
 
 the water in the Hansen well ; but this supposition is based on the 
 distance to the nearest point and is based on the fall of the river both 
 of which I do not know ; so the correctness would depend 
 2593 purely upon the supposition. I think this same supposition 
 is not true to so great an extent in the Mount Hope measure- 
 ment. I have not a map at present available outside of Sedgwick 
 county. By no possible conditions could the water from the bridge 
 north of Colwich reach the Hansen well if the river at that point 
 was lower. Water does sometimes flow up stream. It flows down 
 hill always. At the time when they made these measurements the 
 water would be flowing up hill to run from the bridge north of Col- 
 wich to the Hansen well. I will not say that it would be flowing 
 up hill at any time. It would evidently flow on the surface of the 
 ground. I testified as to what I found on those dates. On those 
 dates the water in the Hansen well was higher than at the bridge, 
 and on those dates the water would not flow from the river 
 
 2599 up hill to the Hansen well. I think it was up hill from the 
 level of the water in the river at the bridge to the water level 
 
 in the Hansen well on the dates I measured it. I don’t know that 
 the contour of the country and the bend of the river absolutely show 
 that your conclusion necessarily follows from these premises. I 
 doubt it. 
 
 2600 The measurements made by us were not extended very far 
 directly south either from the Mount Hope or the Colwich 
 
 bridge. At Colwich it was a little over a mile. There was no road 
 going farther south at that place, and we also would cross into the 
 Big slough. At Mount Hope the farthest south was about a mile, at 
 the corner of Mr. Jurgenson’s place. We found the level of the water in 
 the well lower than the level of the water in the river straight north. 
 According to the information I have, if you should go up the river 
 from the bridge at Colwich two and a half miles there would not be 
 very much difference in the distance to the Hansen well than when 
 you are at the bridge. I scarcely think that it is true that the river 
 two and a half miles above the bridge is at least half a mile 
 
 2601 nearer the Hansen well than the bridge is, though I have not 
 
 the exact measurement. The river comes from the north- 
 west, and whether that brings it nearer the Hansen well or farther 
 I cannot say. The distance appears to be just about the same from 
 the map I have here. The bridge is on the southeast quarter of sec- 
 tion 27, and the Hansen well on the southeast quarter of section 10. 
 His well is in the northeast corner of the southeast quarter of section 
 10. 1 think the river touches the southwest corner of the nothwest 
 
 quarter of section 21. The scaling of the map would show that the 
 
 northwest quarter of section 21 is over one-fourth and less than 
 
 2602 one-half of a mile nearer to the Hansen well than is the 
 bridge at Colwich. If that point is two miles above the bridge 
 
 then the northwest quarter of section 21 would hardly be ten feet 
 higher than the bridge if the river has a fail of four feet to the mile. 
 The way the river runs it may be more than two miles. It is two 
 
THE STATE OF OOLOKADO ET AL. 
 
 763 
 
 miles west. Assuming that it is more than two miles, of course, and 
 you call it four feet to the mile, it would be more than eight feet. 
 It would not be far out of the way, probably, to say that the nearest 
 point of the river to the Hansen well is ten feet higher than the 
 bridge, with a four foot fall in the river, If the river from actual 
 measurement should have a six-foot fall it would be something over 
 twelve feet at that rate above the level of the water at the bridge. 
 The measurements we made at Arkansas City were made by 
 
 2603 the same general method in all those cases. The wells were 
 placed on the roads that were available. The lines were 
 
 nearly at right angles to the river, I think. These measurements 
 I gave showed that the water was lower at the bridge than at the 
 Hanson well, and of course it could not go up hill. I never have 
 intended to have the court draw the conclusion from my testimony 
 that I thought that the water could go from the bridge to these par- 
 ticular wells whose measurements have been given. If the water 
 went from the river toward these wells it would leave the river from 
 one to four miles or more above the bridge and would leave the 
 river at a point from four to fifteen feet higher than the level of the 
 water at the bridge and from three to five miles away from the wells. 
 Then the distance, if the water left the river even at the north side 
 of section 20, would be something like three miles from the Hansen 
 well, and if the river falls six feet to the mile the north side of sec- 
 tion 20 must be at least twenty feet higher than the bridge, taking 
 that distance and that assumed fall. 
 
 2604 In speaking of seepage and return waters, I stated in my 
 evidence that they use in the aggregate more than appears to 
 
 be in the stream or than passes a particular place. If 750 cubic feet 
 per second of time should pass Canon City, the first ditch that would 
 have capacity to take that amount is the Fort Lyon, and possibly the 
 Amity. If this 750 feet should be taken by the Fort Lyon ditch 
 and should be used for irrigation, the whole of the 750 feet would 
 not be returned to the river and not all of the 750 feet would get 
 down there, even. Certain parts of that water when used for 
 
 2605 irrigation would be evaporated and go into plant life. From 
 one-half to two-thirds of the amount of water used in irriga- 
 
 gation is evaporated and goes into plant life. If 750 cubic feet 
 should be used for actual irrigation from one-third to one- 
 
 2606 half might find its way back to the river and from one-half to 
 two-thirds disappears by evaporation, leaving then, only one- 
 
 third to one-half to go back into the stream. If one-third finds its 
 way back into the stream by one use for irrigation, when that would 
 be used the second time the same rule would apply, and after two 
 usages there would be about one-ninth of it left, and when this 
 should be used the third time, about one twenty-seventh. When I 
 made the statement in my direct examination I had there in view 
 the return waters and also the full flow of the river. I said that 
 from one-half to two-thirds of the water was used in evaporation 
 
7<)4 
 
 THE STATE OF KANSAS VS. 
 
 and abosrbed by plant life. In the mountains, under a differ- 
 
 2607 ent type of irrigation, the loss is greater. Well, I beg your 
 pardon, I think I am answering a little different question 
 
 there, and inadvertently was thinking of the other side — meaning 
 the amount that soaked into the ground, which would mean 
 
 2608 that the amount lost by evaporation in that case would be 
 less. The water in the Arkansas river from Canon City to 
 
 the Kansas State line is used over and over again as often as it can 
 be used. The oftener it is used for irrigation the greater the pro- 
 portion of the original amount that flowed down the river is lost 
 to the general flow of the river. If this system of irrigation as 
 practiced in the valley of the Arkansas river from Canon Cit}' down 
 to the State line should repeat the application of the water to the 
 irrigated fields half a dozen times the greater per cent, of the origi- 
 nal amount of water would be evaporated and would find its way 
 into plant life. 
 
 Referring to Defendant Colorado’s Exhibits 28 and 29, 1 had these 
 different diagrams so prepared as to show the greater average yield 
 by the lines as they went up on the diagram and the lower 
 
 2609 average'yield as the lines went down on the diagram. I stated 
 in mv examination in chief that if the line goes up it indi- 
 cates an increase in production per acre. If the reports of the Kan- 
 sas State board of agriculture are correct they would seem to indi- 
 cate that. Particular acres, of course, will vary from the aver- 
 
 2610 age for the whole county. These diagrams show the produc- 
 tion per acre on the average; but of course any average is 
 
 not a complete indication as to what a particular farm or area does 
 produce. Of some particular farm it might not be any just indica- 
 tion at all. If one farm produced forty bushels per acre and that 
 was the only farm in that county that year, then the average and 
 the production would he the same. If the next year that same farm 
 produced precisely the same number of bushels per acre and there 
 was another farm in that county that only produced half as much, 
 the average would be very different, yet the first farm would, under 
 that assumption, produce precisely the same number of bush- 
 
 2611 els with precisely the same number of acres, probably. The 
 diagram as shown in these exhibits shows that the same gen- 
 eral conditions seem to be affecting the Arkansas valley, the 
 
 2612 Smoky Hill valley and the Solomon valley, and I think it 
 does show that as a whole. I cannot tell you how much bot- 
 tom land there is in Mitchell county, Kansas. I do not recall as to 
 the bottom land, and in fact I do not know that I noticed the state- 
 ment made there in regard to it. We had no means of knowing 
 what bottom land there was; we took the counties from the figures 
 and pages that were shown on those tables. We did not have the 
 means of showing the relative amount of bottom land and upland 
 in those counties from those same volumes, that I saw, at least. We 
 were comparing a series of years. We used the biennial report of 
 
HlE STATE OF COLORADO ET AL. 
 
 76S 
 
 1877-8 as largely as any others, but I do not recall that we 
 2618 used it any more largely. I do not recall that the amount 
 of the bottom lands and uplands in those different coun- 
 ties is shown in that volume of 1877-8 so that I could get a gen- 
 eral idea of them. I did not take that into consideration. If this 
 report should show that Mitchell county had only fifteen per cent, of 
 bottom land, and if the yield in Mitchell county rises and falls 
 correspondingly with the yield in another county for the same year, 
 I think it is a fair and true deduction to compare that through the 
 same years with a county that has fifty per cent, of bottom lands. 
 If you compare the yields in Mitchell county for that same year as 
 to whether it was higher or lower, unquestionably that would be 
 unfair, but we tried to eliminate that by showing that they both 
 rose and fell together. Usually the bottom lands in Kansas were 
 settled first. I think that was universally true. The figures that 
 were put upon these diagrams varied somewhat and began 
 
 2614 about the year 1873. They began just as soon as we could 
 get the figures from these reports. Probably the year 1873 
 
 was about the year that the great tide of immigration began coming 
 into the eastern range of counties. I should think it probable, but 
 I have no personal knowledge of that, that the bottom lands in 
 these counties were settled first and the yield per acre was higher 
 upon the bottom lands when they were first cultivated than it was 
 upon the uplands when they were first cultivated ; but I do not feel 
 warranted in stating that as a fact. I have heard some statements 
 to the effect that the bottom lands in Kansas are more productive 
 than the uplands, and I think I have heard some people for some 
 crops preferring the other way. 1 should suppose the bottom lands 
 would be more productive than the uplands for corn, especially as 
 you go westward. 
 
 Q. Hence in those counties in the northern part of the 
 
 2615 State, upon the Solomon, Smoky Hill and Saline rivers, the 
 average yield per acre for those first years that you gave in 
 
 your diagram may have shown the production of the bottom lands? 
 
 A. Quite probably to a great extent for the subsequent years, that 
 is, in the western counties. 
 
 Q. But for the later years they always showed the production of 
 the uplands, did they not? 
 
 A. Well, in those western counties I did not learn that there was 
 much production on the uplands even then. 
 
 Q. Then if you should learn that the greater per cent, by far in 
 the later years was on the upland that was cultivated in corn, it 
 would necessarily reduce the average yield, would it not? 
 
 A. Why, if the upland had a less yield than the bottom land, it 
 would. 
 
 Q. If the agricultural report that you use shows that there is not 
 to exceed fifteen per cent, of the total area of Mitchell county in 
 bottom lands and in the year 1902 that there were over 
 
 2616 113,000 acres of corn in that county, by far the greater per 
 
STATE OF KANSAS VS. 
 
 M 
 
 cent, of that area of cultivation would have to be uplands, would 
 it not ? 
 
 A. Well, I don’t know that that conclusion would follow from that 
 statement, without further knowledge. 
 
 Q. Fifteen per cent, of the area of that county would be a great 
 deal more than 113 acres, would it not? 
 
 A. Why, I suppose so. 
 
 2617 Q. Then your figures might show an entirely different state 
 of facts from what was really true, might they not? 
 
 A. No, the facts they show are true, I think. 
 
 It is the yield per acre that the line on the diagram shows, 
 
 2618 and the yield per acre was found first and the line drawn after- 
 wards. In the diagram nothing was said as to bottom or up- 
 
 2619 lands. I had the average there for the whole country, which 
 was the data we had at hand, as appears in those reports, and 
 
 that included the crops wherever they might be. Nothing was said, 
 I think, at all by this diagram that the bottom lands through 
 Mitchell, Saline and Cloud counties and the surrouding counties are 
 less productive per acre than they were twenty-five years ago. That 
 was not the purpose of the diagram at all. Nothing was said in the 
 diagrams about it at all — that the bottom lands in Sedgwick county 
 are either more or less productive than they were in the 
 
 2620 former years. The exhibit shows that it is the average for 
 the whole county. The exhibit does not mean to show that 
 
 any particular part of any of those counties is more or less product- 
 ive than it was in the earlier years; it is the whole county. 
 
 I stated in my direct examination that irrigation was very useful 
 and profitable and absolutely necessary in the Arkansas valley in 
 Colorado, and I think that would even be true in the western part 
 of Kansas. The conditions prevailing in the eastern part of Colo- 
 rado are largely the conditions prevailing in the western part 
 
 2621 of Kansas. If water enough could be found to irrigate the 
 whole valley, a good deal larger area, and therefore a good 
 
 deal larger number of people would be benefitted if it could apply 
 both to Colorado and to Kansas. Water and moisture is just as 
 much a necessity to raise apples in western Kansas as it is in Colo- 
 rado. 
 
 In referring in my direct examination to the conveyance of water 
 rights as now used in the Arkansas valley, I will add that 
 
 2622 the stock which represents them is subject to sale. The water 
 rights are sometimes sold. It is true that a person having a 
 
 prior right sometimes sells or sometimes attempts to sell his water 
 to some one who may not have an}' right to it whatever under the 
 law. This sale is more than a willingness to part with his rights. 
 The transfer by sale is not always sale for the party who attempts to 
 sell. I do not know of sales from the parties who have a prior right 
 to water for a single season from one ditch to another where people 
 are under different ditches, but where people are under the same 
 
TMft STATE OF COLORADO ET AL. 
 
 76? 
 
 ditch they may transfer their right or use, and if it were a 
 
 2623 temporary use I do not know as it could be called a sale. I 
 have known where parties who, having a right to water and 
 
 having no need for it, have offered to sell the water to some one else 
 who had no legal right under the statute to that water. I have 
 known where they have taken money, and of a good many cases 
 where they have not been able to transfer their right to the water. 
 The attempt or desire to transfer is one of the difficulties that you 
 have to meet in the actual application of the water under our system. 
 We find some having that desire, but that has to go through court 
 and becomes, then, a new decree before it becomes a sale. 
 
 2624 I referred in my testimony to one ditch at Canon City that 
 the State of Colorado had done something toward construct- 
 ing or developing. There is one also at Montrose, from the Gunni- 
 son river, on which the governor expended twenty-five thousand 
 dollars and which is the germ of the Gunnison tunnel, which is being 
 taken up by the reclamation service. I don’t know of any consti- 
 tutional provision that would prevent the legislature from taking this 
 work up and pursuing it. There is nothing impossible in it. A 
 subsequent legislature might now take it up and pursue it. 
 
 As to the control of the water in the reservoirs, that varies. There 
 was generally a proviso with each particular bill, that is, a bill ap- 
 propriating money for construction. In one or two cases it provided 
 that the water commissioner should turn that water out when 
 needed ; then there was another provision generally which said 
 that the county commissioners should be entirely responsible 
 
 2625 for the dam and for keeping it in repair. In one of these 
 reservoirs I think the water commissioner is to turn the 
 
 water out when there is need for it. When he knows there is a 
 lack of water in the river, that the supply in the river at that time 
 is not sufficient for the needs of irrigation, this reservoir 
 
 2626 is simply to supplement that supply. The Twin Lakes reser- 
 voir is not a State reservoir. It is located on the south side 
 
 of the Arkansas river, about eighteen miles southeast of Lead- 
 ville, on Lake creek. It is something over one hundred and 
 fifty miles up the river from the mouth of the canal that it supplies. 
 When the company needs any water in its canal it turns the 
 water into the bed of the river and takes that amount of water out 
 at the head-gate of its canal, less a certain per cent. The law pro- 
 vides that the State engineer may fix that percent. I think they 
 have fixed it themselves. It is a matter that certainly has not 
 come to the engineer’s office. I think they have taken out ten per 
 cent, for this loss by evaporation and seepage, or the loss be- 
 
 2627 tween the reservoir and the canal. The Twin Lakes reser- 
 voir supplies the Bob Creek canal, or, as it is also spoken of, 
 
 the Colorado canal. The}' have found it practicable to store the 
 water one hundred and fifty miles above the canal where it is used, 
 but the other people along the river have objected very decidedly. 
 Their objection is not to the principle but to the fact, or what they 
 
m 
 
 TftE STATE OE KANSAS VS. 
 
 think is the fact, that these people are taking water out that 
 2628 should go to them. I do not think that the method of stor- 
 ing water above the canal where the water is used is impossi- 
 ble or not feasible. It is in practice to quite an extent in this 
 State. This can be repeated in the Arkansas valley just as many 
 times as you have ditches and reservoirs and water to use. The 
 reservoirs that supply the works at Pueblo are not all located near 
 the canals or the place where the water is used, in fact the nearest 
 one is three or four miles away and the farthest one is above Lead- 
 ville one hundred and fifty or two hundred miles from 
 
 2829 Pueblo and not far from the Twin Lakes reservoir. This 
 belongs to the Colorado Fuel and Iron Company. 
 
 Examining Defendant Colorado’s Exhibit 28, I find it is incor- 
 rect as to the sources of the Smoky Hill river but correct as to the 
 sources of the Republican river, which rises in Colorado. This map 
 shows that in fact both the Smoky Hill and the Republican have 
 their real sources iu Colorado, and this is substantially correct. 
 
 Examination by Mr. Campbell : 
 
 2830 By the “ duty of water” is meant by engineers something 
 analogous to a term that is used in other engineering, like 
 
 the “duty of coal,” the “duty of a steam engine,” etc. It is in one 
 sense the service that can be gotten out of water. It is expressed 
 sometimes in different ways, but is generally used to mean the 
 amount of land that is to be served by a given quantity of 
 water, and that very frequently is a running quantity, like 
 a cubic foot per second of time. If we take the duty of water 
 as most commonly used we would speak of it as the amount of land 
 supplied by the average flow during the irrigating season. Thus, 
 if you had a cubic foot per second of time running for ninety days, 
 or whatever the irrigating season might be, you would have 
 2631 a certain result if they were the constant size stream. If the 
 stream should vary in size according to the needs of the crop, 
 so that no water ran to waste, there would be more acres supplied 
 by that amount. There you would have an average which would 
 not necessarily indicate the exact amount being used at any partic- 
 ular time. The average during the irrigating season in Colorado, 
 taking the average flow and comparing it with the acres, runs up to 
 150 acres or even more per second of time. Yes, there are some of 
 the decrees that I have spoken of in the Arkansas valley in Colo- 
 rado that are based upon a duty of a great deal less than 150 acres. 
 A man farming in June has to use water at a greater rate than 
 would be indicated by one hundred acres per cubic foot per second 
 of time ; that is, for one or two weeks he may have to use water or 
 have it at his command so as to be able to use more at that particu- 
 lar time, and then the rest of the year the use would lessen, so that 
 while the average might be 150, he might need it fora while at the 
 
THE STATE OB’ COLORADO ET AL. 
 
 769 
 
 rate of seventy acres, and in order to have it when he needs 
 
 2632 it at that rate he usually attempts to retain the water so that 
 he will have a cubic foot per second for sixty, seventy or 
 
 eighty acres. That really represents in that case not his average 
 amount of water that he uses but the maximum amount he can call 
 for at any particular time. It does not mean that he uses it at that 
 rate the rest of the year. Assuming that there are some decrees in 
 the Arkansas valley that are based upon a duty of about twenty-five 
 acres per cubic foot per second of time, most of that goes back into 
 the river or he (the person who obtained the decree) don’t get it. He 
 does not assume to sell it to other parties. There have been a few 
 cases in this State where the transfer of water has been made where, 
 through ignorance or other causes, there has been an excessive de- 
 cree and the owners of the water rights have thought they had an 
 excess of water which they thought they could dispose of or have 
 tried to when they thought the water might have a value. In the 
 administration of water the officials are not to give water to the 
 ditches more than is actually used. Some people who have 
 
 2633 decrees for excess water have in times past attempted to sell 
 some of the extra water, if you may so call it. I do not know 
 
 of any recent case of persons transferring their surface water, that is, 
 the excess decree. There is a statute that provides a limitation in 
 regard to leasing or renting water. The statute says for the imme- 
 diate purpose of saving crops or the more economical use of water 
 they may exchange or loan water one to another. The loan- 
 ing of water has been treated somewhat differently in the different 
 parts of the State. In some parts there has been almost none 
 
 2634 of it under any phase, and in some other portions of the State 
 there has been some loaning, but it has been found to be 
 
 abused and to affect the rights of others. It has gotten into the 
 courts but has not been passed upon by our supreme court. It has 
 been practiced to some extent in some places. I did not mean to 
 give the idea that it had been general. No, in a case where A has 
 a decree for one hundred cubic feet of water per second of time and 
 he only needs fifty, and B has a subsequent appropriation to A, and 
 C is subsequent to B, A cannot loan his surplus water under that 
 decree to G, who is subsequent to B. Under the only order which 
 has been issued under that, where it has come to the shape of an 
 order, it has been said that A could not loan any water except such 
 as he then was using and had occasion to use. In a case where A 
 has a decree for one hundred cubic feet per second of time 
 
 2635 and only requires fifty it has been the practice to allow him 
 to loan the excess to C, who is subsequent to B in appropria- 
 tion. In that case it might be that A can use the water to the detri- 
 ment of B by giving it 0. Water has been recognized in this State 
 as being independent of the land in some of the courts. 
 
 There are about 300,115 acres of irrigated land in the Ar- 
 
 2636 kansas valley in Colorado. I get these figures from the census 
 report of 1902 on immigration. There are 4,557 farms and 
 
 49—7 
 
W6 TltE STATE op Kansas VS. 
 
 795 irrigation systems, according to this census report. The acres 
 and farms refer to the Arkansas valley and its tributaries. We 
 
 2637 have in the State engineer’s office the number of the decreed 
 ditches in the Arkansas valley and will furnish that to the 
 
 stenographer later on. These decrees are in regard to the Arkansas 
 river and its tributaries. 
 
 A very good duty of water is obtained in the Arkansas valley, but 
 I do not mean to say that it is not capable of improvement. Irriga- 
 tion is in a progressive stage. Every five or ten years we see a no- 
 ticeable improvement and new means for saving are adopted 
 
 2638 and losses are prevented. The best results from irrigation, 
 that is, the largest returns, can be obtained near the moun- 
 tains, that is, so far as the mountain water is concerned. I say that 
 from the fact that we have at that point a larger amount of water. 
 The loss has not yet taken place, or a comparatively small amount 
 of it, and hence there is a greater aggregate of water to be used so 
 far as the amount coming from the mountains is concerned, and con- 
 sequently, as I have always thought since I began to examine the 
 question, it was a fortunate thing that irrigation began at the moun- 
 tains. An additional reason is because of these losses which take 
 place, and the consequent savings which can take place benefits the 
 lower valley, and the ultimate result is that the lower valley is con- 
 stantly being put under a better situation. It can ultimately be 
 irrigated. If the water in the first place had to go a considerable 
 distance from the mountains the losses which there result to the irri- 
 gation from those savings would apply to the land farther down and 
 the land above this point could then never be benefited in the fu- 
 ture. 
 
 2639 I think I am acquainted with the character of the public 
 lands undisposed of by the Government, as to whether they 
 
 are arid or arable. On the plains they are nearly all both arable 
 and arid ; that is, there is no intrinsic reason why they cannot be 
 ploughed, for instance, but they are dry. To get good results from 
 these lands they need irrigation. The future development of this 
 country is dependent upon the development of irrigation 
 
 2640 projects, because no agriculture, practically speaking, is pos- 
 sible for any of this western country without irrigation. Of 
 
 course there could be range stock and stock raising of that kind, 
 and there could be at times and in favorable places some agriculture. 
 It would be precarious, however, and it would be, like other places 
 on the earth’s surface in such cases, subject to famines at any rate. 
 The production, if there could be any without irrigation, would be 
 small as well as precarious, and the country could not raise in that 
 way even enough for its own consumption ; in fact could scarcely 
 raise anything. There could not be any successful agriculture, con- 
 sidering agriculture as the growing of crops. 
 
 I know that the average production of a square mile in the West, 
 that is, irrigated lands, is a great deal more than that of a square 
 
THE STATE OF COLORADO ET AL. 
 
 771 
 
 mile of arable land in the East, and the same applies as to an 
 
 2641 acre. The land on the plains not irrigated supports one per- 
 son to a great many acres. Practically, it takes twenty acres 
 
 to support a cow. This acreage has been a very frequent basis to 
 figure on. Under irrigation there are some methods of irrigation 
 which almost every irrigated section passes through as a stage where 
 they use grass crops, like alfalfa, for instance, that a relatively small 
 number of people are supported from at first. It then goes into 
 more intensive agriculture — first into wheat, then into cantaloupes, 
 small fruits, etc., and the tendency is constantly to subdivide and 
 break up into small tracts, and in those cases where at the present 
 time we see that development we find five and ten acres supporting 
 a family — and by family I mean there may be families 
 
 2642 of good size — and I think the limit has not been reached 
 there by any means as yet. I am acquainted with what 
 
 is known as the reclamation act passed by the Congress of the 
 United States. I think I know the difference between the doc- 
 trine of riparian rights and what is known in this western 
 country as the doctrine of appropriation of water for beneficial pur- 
 poses. If the riparian rights doctrine should be adopted in this 
 wetsern country the reclamation act could not be carried out at all, 
 because, as I understand that doctrine, the people along the river 
 low down or elsewhere or persons owning land along the banks of 
 the river would be the only ones who would have any right 
 
 2643 to the water of the stream and they also would be entitled to 
 and could claim the water to flow by them if they did not 
 need it. In order to reclaim the land we have in the arid 
 
 2644 country it is necessary to take the water out of the streams. 
 
 I did not mean to say in my direct examination that the 
 underground water in the Arkansas valley flows in subterranean 
 streams. The underground water is flowing down hill, and for most 
 of its course the water is flowing in laterally from the sides, the 
 same as in an eastern stream. It is passing down, to some extent, 
 the channel of the river, because there is a bed of gravel 
 
 2645 underlying that whole country. As I understand, not long 
 since a riparian owner could claim the privilege of having 
 
 all the water pass him whether he wanted to use it or not, but I 
 think some of the decisions of some courts later have recog- 
 
 2646 nized that he must have some beneficial use of it. If 
 the people of Colorado should be deprived of irrigating their 
 
 lands no one could live here, practically. There would be some 
 miners, and that would practically be all. Our industrial enter- 
 prises would have no customers and consequently practically every- 
 thing would shut up. 
 
m 
 
 THE STATE OP KANSAS VS. 
 
 Recross-examination. 
 
 By Mr. Ashbaugh : 
 
 In northern Colorado the irrigating season is practically through 
 the period from the middle of May to the middle of September. It 
 is natural that it should vary somewhat with the crops ; that 
 is. wheat, for instance, would cease to need irrigation early in July, 
 alfalfa by the first of September, and with the change in crops there 
 is some change in the notions of the season. Fruits, for instance, 
 need one irrigation at least late in the fall. Sugar beets or potatoes 
 will take irrigation up to the first of September, and there is some 
 tendency to make a little earlier irrigation. So that is somewhat 
 elastic. The statute has said that the ditches that are carrying 
 water under certain conditions must be prepared to carry water 
 from April 15 to November 1. That is the nearest distinction I 
 could give. That recognizes that while some crops may need water 
 as early or as late as that it does not follow that the farmer 
 
 2647 looks upon that as his season for any particular crop. Some 
 may be needed as early as the first of April and some late in 
 
 November. In the southern part of the State irrigation sometimes 
 takes place a little later or a little earlier, because it is milder. I 
 do not recollect that the supreme court of this State has recognized 
 the doctrine or custom of selling rights independently of the land, 
 unless it is in the case of Strickler vs. Colorado Springs. 
 
 2648 Examination of Mr. Campbell: 
 
 In answer to a question by the commissioner I stated that I 
 thought the California courts had recognized riparian rights in the 
 first place and then found that they simply could not apply them 
 in an arid country as part of their State was. I do not know that I 
 am clear as to what the modified riparian doctrine is, and I have 
 never found anybody who did know. I do not know of any form 
 that is generally recognized, and I have never in my experience 
 met any lawyer or irrigator who could tell what the courts mean by 
 the modified riparian rights doctrine. I do not see how there can 
 be any development in the arid region by irrigation if the common 
 law doctrine of riparian rights or any modified common law doc- 
 trine of riparian rights exists. 
 
 3649 The average flow of a cubic foot of water per second of 
 time in the Arkansas valley ought to irrigate from 125 to 
 150 acres, I think, now. Under more favorable conditions it might 
 run up to 175 or possibly 200 acres. I should not expect it to ex- 
 ceed the latter figures. 
 
 In extreme wefcern Kansas they need water for irrigation. Water 
 in the Arkansas valley through Kansas is just as great a necessity 
 for the production of crops as it is in Colorado. Crops cannot he 
 grown without water in any place that I know of. 
 
THE STATE OF COLORADO ET AL. 
 
 773 
 
 2650 Redirect examination. 
 
 By Mr. Dawson : 
 
 In answering the last question by Mr. Ashbaugh as to water being 
 necessary for the production of crops along the Arkansas river in 
 western Kansas, I meant water from any source. It may be dew or 
 snow or rain. Simply that life is not possible without moisture. 
 This is true as to the Arkansas valley as it is any where else. I did 
 not mean to state that it was true that the waters of the Arkansas 
 river as a river are as necessary for the growing of crops for the 
 greater portion of Kansas through which it flows as they are for 
 growing crops in Colorado. 
 
 In speaking of the average flow of a cubic foot of water serving 
 one hundred and twenty-five acres of land and the possibility under 
 certain conditions of its serving two hundred acres, I meant the 
 average flow as heretofore defined by me, and that through- 
 
 2651 out the irrigating season a party would have an average flow 
 of that amount of water for that amount of land. As a matter 
 
 of fact the farmers along the Arkansas river and its tributaries in 
 Colorado do have an average flow of that character. Sometimes 
 they have less. They almost never have more than their decreed 
 right, nor all the time have less. As explained before, the decree 
 really is the maximum amount which they can get at any one time, 
 not the average amount, and it is true that for the greater portion 
 of the irrigating season most of them have less than the average 
 amount. No, it is not true, as the water is actually used in the 
 valley of the Arkansas river and its tributaries in Colorado under 
 the decree rendered, that is is generally possible to irrigate 125 acres 
 under a decree of one cubic foot per second of time. Yes, as the 
 practice prevails aud conditions exist, the amount of land that can 
 be irrigated by a cubic foot of water per second of time, 
 
 2652 whether taken as an average or maximum, varies in different 
 localities, according to the soil, the crops and the man. In 
 
 the Arkansas valley in Colorado 125 acres cannot be irrigated with 
 one cubic foot per second of time. Approximately from 50 to 60 
 acres and occasionally up to 80 acres can be irrigated from this 
 amount of water. Counting the mountain drainage, the approxi- 
 mate average would be 60 to 70 acres. In a majority of the cases 
 the use of water for irrigation in Colorado as a whole is reasonable 
 and the lands are thereby made profitable. In many cases 
 
 2653 undoubtedly there is an excessive use of water. 
 
 As to my statement in the examination in chief concerning 
 
 2654 the underground waters along the Arkansas river, in my 
 judgment those underground waters lying outside of the im- 
 mediate bed of the river have no defined channel such as that used 
 to designate a stream by. Those underground waters are simply 
 oozing through the sand, mostly a fine sand, and of course going in 
 the direction in which the surface water falls, but at an extremely 
 slow rate. The underground waters travel from ten to fifteen feet 
 
774 
 
 THE STATE OF KANSAS Vs. 
 
 per day, but it is not in a channel. There are not those channels 
 that you find, for instance, in a limestone country sometimes, where 
 there ma}^ be underground streams, but every one is extremely 
 minute — simply a kind of oozing water. I used the term “ oozing” 
 as practically synonymous with “ percolating.” In speaking of find- 
 ing subterranean streams, there is no difference between a subter- 
 ranean stream and a surface stream except that one is an un- 
 
 2655 derground stream and the other on top. (Objection.) The only 
 reason why the term “ stream ” could be used in reference to 
 
 this underground water in the valley of the Arkansas river is 
 because of the fact that the valley has a slope parallel with the 
 river and the water is passing that way to some extent. (Objection.) 
 
 In answering a question by counsel for the Government in refer- 
 ence to the production of irrigated land as compared with land in 
 the humid region, I should think that the estimate that double 
 the amount of crops could be raised would be low. I was there 
 thinking of wheat. In other crops the increase is more than that. 
 In this State and throughout the West as a whole agriculture has not 
 been as skillful as it is becoming. Under irrigation there is an op- 
 portunity for skill to be shown in the production of crops, far more 
 so than where the element of reliance upon certain rains 
 
 2656 comes in. In the valley of the Arkansas sugar beet raising, 
 cantaloupe growing and fruit growing results in a much 
 
 more productiveness per acre of lands in Colorado than in the East- 
 ern or Middle States where the land is not under irrigation. (Ob- 
 jection.) Yes, I think it is true that where irrigation is practiced 
 on a large scale as in the Arkansas valley evaporation takes place 
 and the amount of moisture in the air is increased and the general 
 humidity rises. Our observations have indicated that. It is true 
 as a general proposition, and at Fort Collins the humidity is now 
 very much more than it has been out on the plains. Formerly in 
 Colorado, say along the Arkansas valley between Pueblo and the Kan- 
 sas-Colorado State line, dews were practically never found, and they 
 are now found there in the irrigated district. The prevail- 
 
 2657 ing winds along the Arkansas valley in Colorado are from 
 west to east generally, or from west to southeast, or to the 
 
 east or northeast. 
 
 No, I am not a licensed or practicing attorney at law, and in an- 
 swering the question of counsel for the United States Government 
 in reference to the loaning of water I took it up not so much as a 
 question of law as a question of administration. As a matter of 
 fact, from the information I have gained in the administration of 
 water laws in Colorado the courts held, and the supreme court of 
 this State has said that there must be read into every decree a 
 limitation of the amount decreed to the amount that a man actually 
 needs, and if a man had a decree for one hundred cubic feet 
 
 2658 per second of time and he only needed 50 cubic feet per 
 second of time, in administering that decree I would not 
 allow him to take one hundred cubic feet and waste the addi- 
 
THE STATE OF COLORADO KT AL. 
 
 775 
 
 2659 tional fifty. As to the sale of water referred to by counsel 
 for Kansas, the sale applies to the use of water. The water 
 
 itself is not sold outright. And in administering the water laws of 
 Colorado, if any given amount of water is sold, before a party can 
 change the point of diversion or transfer it he must make an appli- 
 cation in court and give notice to those who might be affected ; and 
 further, the party applying for such change must affirmatively es- 
 tablish that it can work no injury to anybody. 
 
 2660 In reference to the cross examination by Mr. Ashbaugh 
 regarding the Hansen well and its distance from the bridge 
 
 and the level of the water at the bridge and at this well, I will say 
 that the well at the Hansen place was lower than the point at the 
 river by four feet, I think. It had been previously shown in the 
 direct examination that the water in that well was about nine feet 
 higher than the river at the bridge. Now, the underground water 
 would flow much the same as surface water. It will flow down the line 
 of greatest slope and its speed is greater as the fall is greater. So if 
 there be a flow from the point mentioned yesterday to the Hansen 
 well, there would be a greater flow from that well toward the river, 
 south. The whole region there slopes in a diagonal direction, some- 
 what southeaster^, and without having the facts of a great many 
 other points at hand at present, yet those levels would agree with the 
 fact that the maximum slope of that ground surface is somewhat 
 southeasterly. The level of the water in the Hansen well was found 
 to be about nine feet higher than the level of the water in the river 
 at the bridge from which point the line of wells was started, and 
 whatever may be the assumed elevation of the point taken by coun- 
 sel for Kansas up the river, there will be a greater fall from that 
 point to the level of the water at the bridge than from that point 
 up the river to the level of the water in the well. Of course the 
 level at the point in the river as taken yesterday was an as- 
 
 2661 sumptiou, but it makes no difference what the assumption is, 
 if it is up the river it must be higher than down the river, 
 
 and whatever the assumption may be, the water in the well being 
 nine feet higher than the water in the river at the bridge, the fall 
 would be greater towards the bridge than towards the well. That 
 is, the fall from the assumed point up the river would be greater 
 from that point to the bridge than from that point to the well, unless 
 the river had a greater fall than was assumed. The fall from the 
 river to the well would depend upon the distance you went up, and 
 it would not make any difference at all what the fall of the river from 
 that point to the bridge was, if the water was lower at the bridge than 
 at the well. The fall from that assumed point to the bridge would 
 be greater than from the assumed point to the well, because the 
 well is higher. In other words, that water in flowing followed the 
 greatest grade, other conditions being equal. The investigations 
 with these lines of wells has not yet been completed. They 
 
 2662 are still being carried on. With the number of wells which 
 have been sunk in the vicinity of the river through Kansas 
 
776 
 
 THE STATE OF KANSAS VS. 
 
 it is not possible for one man to have charge of and make reports 
 upon all of them and carry on all these observations within the 
 time limited, nor is it possible that the gauges for the measurement 
 of water in the river can be in charge of one man. At each place 
 it requires a person who lives close by, because daily readings are 
 made, and these are scattered over a distance of a number of hun- 
 dred miles. I have myself taken readings on the same day and 
 nearly at the same hour as those taken by the observers at the same 
 points on the regular gauges, and of course have compared my 
 readings with those taken by then, and have|found them substantially 
 correct in most cases when the river was at a permanent height. 
 When the river was changing of course a difference of half an hour 
 would make a difference in the reading. These investigations of 
 the river and readings are still being carried on. 
 
 2663 You call my attention to pages 694 and 695 of the report 
 of Willard D. Johnson. Here is a quotation on page 694 of 
 
 the monograph by Willard D. Johnson on “The high plains and 
 their utilization,” in the Twenty-first Annual Report of the Survey, 
 1899-1900, part IV. This is next to the last paragraph on that 
 page, 694 : 
 
 “ The high plains present a larger expanse of accessible and cul- 
 tivable lands than this arid belt. To reach them across the latter 
 would involve so much loss from seepage and evaporation that the 
 area reclaimed would be much smaller than could be reclaimed 
 close to the mountains, and an area in proportion to the whole in- 
 significant. But the claims of the arid belt could not thus be wholly 
 disregarded. Hence, even with complete storage and even under 
 an equitable arrangement the high plains could expect to receive 
 no appreciable benefit. It is very doubtful, however, whether com- 
 plete storage will ever be found to be economically practicable. It 
 may be accepted as certain that it will not in any case be undertaken 
 for the reclamation of lands at a distance when lands are to be 
 found close at hand which are reclaimable at less cost.” 
 
 You call my attention to Document No. 90, report made to the 49th 
 Congress, first session, from which I read yesterday on cross-exami- 
 nation, and you call my attention also to pages 7, 8 and 9, 
 
 2664 which is also from this Executive Document No. 90. It is 
 entitled “Survey of the Arkansas river, from Fort Gibson to 
 
 Wichita, Kansas,” and includes a letter of transmission from the 
 Chief of Engineers transmitting the report from the captain of engi- 
 neers, including a report of Mr. Burroughs, assistant engineer. The 
 captain of engineers was H. S. Taber. Mr. Burroughs was the as- 
 sistant in charge of the survey line down the river. He states on 
 page 7 of that report: 
 
 “The method of quartering and transporting the party was found 
 to be in every way satisfactory after passing Arkansas City, but 
 above that point, a distance of sixty-five miles, the river was found 
 to be so shallow and full of bars as to make the moving of the boats 
 consume more time than the actual work in the survey. In several 
 
THE STATE OF COLORADO ET AL. 
 
 777 
 
 instances the party had to be withdrawn from the line for a day at 
 a time in order to get the boats over shoals, and this in spite of the 
 fact that they were only drawing some six or seven inches of water.” 
 
 On page 9, which is under the sub-head “ Wichita to the mouth 
 of the Walnut creek,” — this Walnut creek being at Arkansas City : — 
 
 “At a number of places the greatest available depth found was 
 from three to six inches. Our own experience in moving our own 
 small quarter boats is a practical demonstration of the condition of 
 this portion of the river during low water. In many instances it 
 was only by means of the combined power of the whole party ap- 
 plied to poles and purchase blocks that they were worked over shoal 
 places.” 
 
 Then on page 8, in speaking of the river, is the following: 
 
 2665 “ In the discussion of the river with reference to its general 
 hydrographic features — that is, depth, oscillation, character 
 
 of bed and banks, obstructions, both natural and artificial, and the 
 general feasibility, desirability and probable cost of making success- 
 ful navigation possible throughout the whole or a part of the river 
 embraced in this survey — it should be borne in mind that no por- 
 tion of it is at present or has ever been considered navigable. The 
 mouth of Grand river is now considered the head of navigation, 
 although, in fact, the commerce of the river for forty miles below 
 this point is practically nil." 
 
 The mouth of the Grand river, as shown in Defendant Colorado’s 
 Exhibit 3, enters the Arkansas river in the Indian Territory. Wal- 
 nut creek enters the Arkansas river at Arkansas City just below it. 
 Yes, I find another tributary of the Arkansas river bearing the 
 same name. There is a Walnut creek at Great Bend, Kansas. 
 
 You call my attention to the report from which I last read, at 
 page 10, and the sentence at the beginning of the next to the last 
 paragraph on the page, and you ask me to read it. This is from 
 Mr. Burroughs’ report or part of it. It reads as follows : 
 
 “The citizens have long since recognized the impracticability of 
 ever making this part of the river an artery of trade, and have 
 therefore not hesitated to obstruct it with bridges and dams. The 
 railroads built and projected will easily solve the problem of trans- 
 portation without the river being considered as a factor.” 
 
 2666 Yes, I was asked yesterday by counsel for Kansas to read 
 from the work of Edward Everett Hale entitled “ Kansas and 
 
 Nebraska,” and I read a sentence appearing on page 115, and at 
 your request I now read the sentence immediately preceding the one 
 which I then read, following it by a re-reading of the sentence read 
 yesterday. The whole paragraph reads as follows : 
 
 “ The droughts described render the Arkansas river a very un- 
 certain reliance for communication. It is said, however, that a 
 steam boat can ascend at full water within twenty-four miles of the 
 Great Bend — the point where the river gains its greatest northern 
 latitude.” 
 
 The second sentence is the one read yesterday, forming the last 
 
778 
 
 THE STATE OF KANSAS VS. 
 
 part of the paragraph. As to the navigation of the Arkansas river, 
 it would not be possible for any boat to make headway against the 
 stream in the Arkansas river as it gets very near to the mountains, 
 because it becomes a torrent. 
 
 Q. Would that or would ir not be practically true from the time 
 we pass the Colorado State line in times when there was suf- 
 2667 ficient water in the river for any boat to travel? 
 
 A. When there is sufficient water in the river — which is 
 only at times of flood — then the current is exceedingly swift. 
 
 In my examination in chief I was asked by the commissioner if 
 seepage and drainage were one and the same and answered then 
 “ By extension, yes.” I meant by that that the waters which ap- 
 peared in drains in the East and which I was used to hearing called 
 “drainage water” was the water which ran through the saturated 
 soil, and which, of course, is the case with seepage water. I did not 
 mean by drainage there that the term should apply to the surface 
 water at all but simply to the sub-surface water or underground 
 water that is collected in drains or that might be collected in drains. 
 In that answer I had in mind in the one instance the water which 
 is collected from a saturated soil and drained off and in the other 
 the water which is produced by a saturated soil by reason of irriga- 
 tion and runs off. The irrigation of land often produces a condition 
 of saturation of the~soil similar to that which you find in lands in 
 a country where there is a great deal of rainfall but no irrigation. 
 (Objection.) 
 
 Becross-examination. 
 
 By Mr. Ashbaugh : 
 
 6668 When in reply to a question by counsel for Colorado I 
 stated that the fall of the river toward the bridge mentioned 
 in the Colwich measurements is greater than toward the well, I 
 meant the total amount of the fall at least, and the slope is also 
 greater. The fall would be greater because the distance is greater. 
 Well, not because the distance is greater. The total amount, of 
 course, would be the difference between two specific heights. That 
 would be irrespective of the distance, but the rate, of course, would 
 depend on the distance. The total amount of fall w T ould be greater 
 simply because the elevation is greater at one place than at the 
 other. I do not recall and do not know that the distance is greater 
 in the one place than the other. It is a fact that the river at the 
 upper place is higher than it is at the lower place, no matter 
 
 2669 what the distance is, and the farther you go down the greater 
 the total amount of fall would be. 
 
 2670 Executive Document No. 90, from which I noted, refers to 
 the part of the Arkansas river upon which the Government 
 
 had made some appropriations, but to what extent for that portion 
 of the river I do not remember. These appropriations were expended 
 
THE STATE OF COLORADO ET AL. 
 
 779 
 
 from Wichita down the river to Fort Smith, wherever the en- 
 2671 gineers saw fit. The appropriations were specifically made 
 between Fort Smith and Wichita, and most of the money was 
 spent down toward the lower end. That is my recollection. These 
 appropriations were made upon that part of the river the upper por- 
 tion of which is at Wichita, Kansas. 
 
 Redi rect-examination. 
 
 By Mr. Dawson : 
 
 Q. In running these lines of wells from the river were you able 
 to run them at right angles with the river at all places, and if not 
 why not ? 
 
 A. They were not run at right angles at the places north of 
 Wichita — that is, Mount Hope and Colwich — because it was prac- 
 tically necessary to follow the lines of road, which do not run at 
 right angles to the river. 
 
 Q. Had you not followed the roads you would have had to tres- 
 pass or go upon lands of private individuals? 
 
 A. Yes, sir. 
 
 Recross-examination. 
 
 By Mr. Ashbaugh : 
 
 I don’t know of any case in that vicinity where they went on the 
 lands of private individuals to make measurements. I do not re- 
 call any such place in Sedgwick county. The observers were in- 
 structed to follow the lines of the road, and I do not recall any case 
 where that was not done. I would not state beyond that that it 
 was not done. 
 
 2673 Edward L. Berthoud, Denver, Colorado. 
 
 Direct examination. 
 
 By Mr. Hayt : 
 
 I reside in Golden, Colorado, and have resided within the State of 
 Colorado forty-four years last April. I am nearly seventy-seven 
 years old, and am a civil engineer by occupation, having followed 
 it more or less since 1849. I followed that profession in New York, 
 Pennsylvania, New Jersey, South America, the West Indies, In- 
 diana, Wisconsin, Kansas, Wyoming, Montana and Utah. I lived 
 in the State of Kansas for five years, beginning with 1855, to 
 
 2674 1860, at Fort Leavenworth and Leavenworth. I was in the 
 United States Army twice. I served a while in 1855 in the 
 
 Kansas troubles and then again from 1862 to October 19, 1865, in 
 the United States Army. In 1862 I was appointed in the fall ad- 
 jutant of the 2nd Colorado Infantry. In the spring of 1863 I was 
 
780 
 
 THE STATE OF KANSAS VS. 
 
 ordered to Fort Leavenworth and appointed post adjutant for Fort 
 Leavenworth, Kansas, and assistant adjutant general of the troops 
 in charge of the Santa Fe road from Council Grove to the Raton 
 mountains. When I speak of the Santa Fe road I allude to the road 
 that was used for the transportation of troops and goods from the 
 Missouri river to Santa Fe and the posts in the West along the 
 Arkansas river. 
 
 My duties as an officer of the United States Army took me along 
 the Arkansas river during the year 1863. T was along the Arkan- 
 sas river, 1 might say, from near Pueblo or below Pueblo sixteen 
 miles to a point about ten miles below Walnutcreek in Kansas, 
 
 2675 and south of the river bed, crossing and recrossing it at vari- 
 ous places. Walnut creek is a branch that runs into the 
 
 Arkansas river about three miles below FortLarned. Once or twice 
 that year I had to go to Fort Riley on orders and back again, and 
 otherwise I would go out with scounting parties or would go out on 
 the river up and down with the quartermaster. I had a squad of men 
 with me at times, not exactly under my command, but I was repre- 
 senting the command of the district, making notes and giving direc- 
 tions as they were giving to me. I had general supervision of the 
 whole thing, officers as well as men, and accompanied the scouting 
 parties up and down the Arkansas river and south. 
 
 I had been stationed at Fort Lyon from the end of January to 
 the end of April, 1863. That is right on the banks of the Arkansas 
 river about 65 miles below Pueblo, and in the end of April I was 
 ordered down to Fort Larned and followed the river down to 
 
 2676 the post. I was stationed there. Starting from the end of« 
 June and into July there was scarcely any water in the Ar- 
 kansas river at all, and at the end of July and in August we crossed 
 the river dry shod. There was no water in it at all. We crossed it 
 near Walnut creek, at the mouth of Pawnee Fork, and up above 
 about ten miles above Dodge. Near Fort Dodge, or where Fort 
 Dodge is now, we crossed the river and there was no water. I was 
 along the river from the mouth of Walnut creek to Fort Lvon in 
 Colorado in June and there was some water running then, but at 
 the end of July there was none. About the 15th or 20th of June I 
 
 saw the river at Walnut creek and Pawnee Fork. There was 
 
 2677 some water running in it then. The water was pretty low 
 already then. I should think there was not more than 
 
 half of what there would be at other periods of high water, and 
 not hardly that, even. I know it was so low that we sent men out 
 south of the river and they forded just above the mouth of Pawnee 
 Fork and paid no attention to the water. They just rode right 
 through without any halting or any stopping at all. There was not 
 over a foot or a foot and a half at the deepest place. That was at 
 the end of June. I didn’t follow the river up at that time but 
 came back to Fort Larned. Afterwards, in July, I went up the 
 river with a scouting party. We went up to a creek called Coon 
 creek at that time to see what the Indians were doing or whether 
 
idiE stAt e op Colorado et al. 
 
 m 
 
 there was any camp up there, and the water was very scarce. We 
 had to dig in the bed of the river to get water for the horses and 
 men. Then we came back. I should judge we went about forty 
 miles up the river from Fort Larned. There was no water run- 
 ning in the river at all where we stopped. There were pools of 
 water here and there, but no running water. We crossed over the 
 river again in August still farther up, and then we went down 
 
 2678 scouting on the borders of Texas near the Wichita mountains. 
 There was no water in the river at all except in little holes 
 
 here and there and little creek beds coming in from the south. 
 The place where we crossed the Arkansas river at that time must have 
 been at least forty-five miles above Fort Larned. There we crossed 
 with a wagon and about twenty-five men, most of them mounted, 
 and about fifteen or twenty Indians. There was no water running 
 there at all except a little that came out of that creek, enough to 
 water stock, on the south side of the river. That was the only 
 water we saw at that time. There was not a bit of water running 
 in the river. We camped right-on the bank there. That was in 
 the beginning of August, and I was there one day and two nights, 
 and then we went on south. 
 
 After that I was often up on the river, so often that I couldn’t 
 specif} 7 the times. I was down to the river probably every week, or 
 down to the bank. We went down there to hunt buffalo once or 
 twice, and crossed the river. We went down toward Walnut creek, 
 and then we sent a scouting party down below Walnut creek and 
 they came back and said they found no water at all. This was 
 such a dry summer that Pawnee fork didn’t run at that time and 
 all the water we had from Fort Larned was from two wells and 
 ponds above made by the beavers, and all the animals of the 
 country came to the Pawnee fork and around that fork to get 
 water. There was no water anywhere else. 
 
 2679 About the first of November I got an order to go to Fort 
 Lyon. I went up there with a couple of men and an ambu- 
 lance and stayed there probably three or four days. After I 
 started back, I think it was the first night out, we camped on the 
 bank of the Arkansas river with very much bother — we couldn’t 
 get any water. We finally found a little hole where there had been 
 some melted snow, and we got enough to make a cup of coffee and 
 water the horses. There was not a drop of water there. There was 
 some Indians around there, and they were on an island getting 
 water. And then we came home. The next morning we kept on 
 going down the river going eastward, and I don’t remember whether 
 we got a drop of water that day or not. I rather think we didn’t 
 
 get anything until evening, and very little at that. So our 
 
 2680 stock were in bad shape. . But we kept on. We stayed 
 there — I think the d liver found some water. We bought a 
 
 canteen then, and I don’t remember whether the mules got water 
 that night or not. Next day we started out and drove in a snow 
 storm all the way to Fort Larned, about eighty-five miles. We 
 
782 
 
 sTAtfl OP KANSAS VS. 
 
 found no more water in the river. We took melted snow. We found 
 snow there. The river was entirely dry from the boundary of 
 Colorado down to Fort Larned at that time. The men had been 
 out down below and some of them said that probably two hundred 
 and fifty miles of the river was entirely dry. There was no water 
 excepting by digging for it. This was in 1863. On this trip going 
 down the river we followed the banks of the river all the way down. 
 That was the only chance of getting grass or getting water. 
 
 2681 We just got enough water to keep body and soul together. 
 One place where we stopped, as I said, we found a small 
 
 water hole that the Indians had been using. There were Indians 
 camped on an island in the Arkansas river, and we got enough 
 water there to make a cup of coffee and water the horses. The next 
 night, as I say, the driver found some water for the stock, and 
 brought in some in the canteen. As for digging water for the stock, 
 there was none to get. When we were on the prairie there was 
 none, and when we were on the bottom again there was none at all. 
 We didn’t pretend to look for it. You couldn’t find any. There 
 was no water in sight at all in the bed of the river. You could 
 cross over anywhere dry shod at that time. 
 
 To go back a little bit and describe the condition of the river a 
 little more in detail, I went down the river about the first of Ma} r . 
 The river was at a fair stage then. It was not over the banks at all, 
 but pretty nearly level with the banks, and it was that way until 
 we got to Larned. At the beginning of June there was water in the 
 river. It was falling then pretty rapidly. It got down in June and 
 in July there was scarcely any water at all. From July, so 
 
 2682 far as I know, it was dry on to November up and down from 
 Fort Lyon to Larned. 
 
 The next time I saw the river was about May 1st, 1865, at the 
 mouth of Walnut creek. I saw it several times during that year 
 after that, west up the river as far as where Dodge City now is. 
 That is as far as I went up the river that summer. The river was 
 pretty low that year. There was water running. 
 
 I next saw the river in 1869. I meandered the Arkansas river 
 for the United States Government from Pueblo east about fifty miles. 
 I think the exact length of the line was forty-two miles, but I had 
 to go a little beyond that. The water was pretty low. We 
 
 2683 crossed it several times dry shod. That was in the winter 
 from about the first of February until about the end of 
 
 March. 
 
 Cross-examination. 
 
 By Mr. Ashbaugh : 
 
 After 1869 I was by the river half a dozen times. There was 
 water at La Junta and there was water at Pueblo. I was not down 
 there looking for water. I saw the river below La Junta after 1869. 
 
1’Me SLATE OE COLORADO ET At. 
 
 m 
 
 I passed up there in a car in the night, but I couldn’t see 
 
 2684 anything about it. I paid no attention to it at all. In May, 
 1863, there was water in the river, of course, coming down. 
 
 There was no high water then, though. The water appeared to 
 come from the west coming from the upper sources of the river, from 
 the Huerfano, from the Purgatoire, from the Fountain and from the 
 Chico and other streams — the San Carlos and a number of others — 
 Two Buttes creek. In going down the river in the month of May I 
 didn’t try to ford it. I had do occasion to do so. Going to 
 
 2685 Fort Larned the road was on the north side of the river. 
 
 Q. Well, when you dug in the river bed for water you got 
 better water than where you could find it in the pools did you not ? 
 
 A. Oh, yes, when it was running, the water was pretty good. It 
 was rather muddy at times, and sandy. 
 
 Q. But even when there was water in the pools in the river you 
 would prefer to dig and get water in that way because it was better 
 water, was it not? 
 
 A. Well, passable. If you had to dig any the water looked like 
 coffee color. It didn’t seem very good. 
 
 Q. But it was better than the water lying in the riverbed in the 
 pools, was it not ? 
 
 A. When we dug down ? 
 
 Q. Yes. 
 
 A. No, it was not, nor as good. 
 
 Q. It was not as good ? 
 
 A. No, it was not. 
 
 Q. So that if water lay in a pool all day in the sun 
 
 A. Well, it would be warm, but clear, if it was not full of dead 
 fish. 
 
 Q. Well, now, when you would go and dig in the sand in the river 
 would you not get clear water? 
 
 A. You would get cooler water, but a good deal of it seemed to 
 be alkali water, a good deal of alkali in it. It had a dark color, too, 
 frequently. 
 
 Q. Did you ever see the river when it had no water in it at other 
 times than you have spoken of? 
 
 A. Besides 1863? 
 
 Q. Yes. 
 
 A. No, sir, I never seen it dry since that time. 
 
 Q. You spoke about dead fish. Did you find dead fish in those 
 pools ?• 
 
 2686 A. Yes, some pools had alligator gars in them, and there 
 was some others. 
 
THE STATE OF KANSAS VS. 
 
 m 
 
 2687 Deane Monahan, Denver, Colorado. 
 
 Direct examination. 
 
 By Mr. Hayt : 
 
 I have resided in Denver over ten years. I am a retired army 
 officer and have been connected with the United States Army since 
 July, 1856. I served through the Civil War as an enlisted man, cor- 
 poral, sergeant and 2nd lieutenant. I was sixtv-eight years of age 
 on the 14th of last November. I was captain at the time I retired, 
 and have recently been promoted to the rank of [major by act of 
 Congress. 
 
 In 1861 I was a corporal in the army and my duties in that posi- 
 tion brought me into the State of Kansas in that year. 
 
 2688 I crossed the Arkansas river in the State of Kansas twice 
 during that year, once travelling east from New Mexico and 
 
 again in returning to New Mexico from the East. Travelling east- 
 ward I think I crossed in the month of June that year at what was 
 known as the Cimarron crossing. It was on the Santa Fe trail 
 going from New Mexico. That point was eastward from Las Ani- 
 mas about fifty or sixty miles. It is within the present exterior 
 boundaries of the State of Colorado I think, near the State 
 
 2689 line. On my return I crossed the river at the same point. 
 We were camped on the river from the Great Bend of the 
 
 Arkansas to the crossing place. I think we camped on the bank of 
 the river. The Great Bend I have spoken of is at the point marked 
 Great Bend on the map identified as Defendant Colorado’s Exhibit 
 3. It is near the present site of Great Bend in Kansas. We 
 marched down the river in the month of June from the Cimarron 
 crossing to Great Bend and returned in August. I travelled along 
 the river between those points several days marching, going 
 
 2690 and returning. In going in the month of June, that is, going 
 down the river, the river was fordable; it was low. There 
 
 was water at all points in it where I saw it. There was water run- 
 ning through the bed of the river at all points where I have seen it, 
 probably in some places twenty-five or thirty yards wide where the 
 stream was narrow and spreading out at other points to a much 
 greater width. That was when I went eastward. The water varied 
 in depth perhaps from a foot to eighteen inches. I don’t 
 
 2691 think there was more than that unless at some of the deeper 
 holes. As I travelled eastward I think it was a little lower 
 
 where I left the river or near that point than where I first struck 
 it. There was not quite so much water in it. When I passed up 
 the river in the month of August there was no running water at that 
 time at all. The stream was dry, with occasional water holes in 
 the bed of the stream, but no running water whatever. I crossed 
 the river even 7 day during the time I travelled along it. I hunted 
 along the stream. I was very fond of hunting and had no particu- 
 
THE STATE OF COLORADO ET AL. 
 
 785 
 
 lar duties at that time, and [ hunted each day and crossed the river 
 at least twice every day, and my testimony refers to the entire dis- 
 tance during that period. 
 
 I next saw the river in 1862. My regiment was then going from 
 New Mexico to Tennessee. We crossed the Arkansas river I think 
 at Fort Lyon ; that is near where Las Animas, Colorado, is now lo- 
 cated. I think that was September or early in October. 
 
 2692 There was considerable water in the river at that point at 
 that time, probably two feet at our crossing. During that 
 
 trip 1 didn’t cross the river as I had before, because I was engaged 
 with the troops, and my evidence refers just to the crossing — to the 
 ford. 
 
 I was along the river again in 1866. I was under orders 
 
 2693 at that time. I was going to Fort Stanton, ray station. I 
 had ample opportunity to visit the Arkansas river all the 
 
 time I travelled along it. I was quartermaster for the command 
 that I travelled with at that time. On leaving Fort Lilev in Kansas 
 there was a Russian pri-ce who was coming westward to hunt in 
 that locality, and the commanding officer had orders to afford him 
 every facility to enable him to hunt coming out, and I being quarter- 
 master, and very fond of hunting, accompanied him daily on those 
 hunts while he was out. I crossed the river every day during that 
 time at least twice. The river was then very low, so that you would 
 find only a little trickling stream occasionally, and again there 
 would be no water running but water holes all along. It was almost 
 dry. The sand was wet, but there was very little running water — a 
 little small stream here and there. You could wade through 
 
 2694 them without the water coming over the too of the shoe any- 
 where. That same condition existed all the way up to Fort 
 
 Lyon during that trip. There was a little more water perhaps 
 toward Fort Lyon as we went up the stream than where we first 
 struck it; that is, it appeared to increase as we travelled up the 
 river. On that trip I passed over the same ground that I did in 
 1861, from Great Bend to Fort Lyon. I think perhaps it was in the 
 latter part of October. The trip took about ten days, to the best of 
 my belief. There were holes along the river bed during that trip 
 where we found ample water for our stock. We always found 
 
 2695 holes where we could find sufficient water for the stock. If 
 not enough in one hole we could scatter the stock along and 
 
 water them in different holes. 
 
 Cross-examination. 
 
 By Mr. Ashbaugh : 
 
 I crossed the river again in 1869, early in the year, at Fort Lyon. 
 I think it was in January. There was a stream of water. I re- 
 member we forded it. The water was perhaps eighteen inches to 
 two feet deep where we forded it at Fort Lyon. By being fordable 
 I mean that we had no trouble in crossing it with wagons or horses. 
 50—7 
 
m 
 
 'rttfi state of Kansas VS. 
 
 I may have been mistaken as to the distance tli6 Cimarron 
 
 2696 crossing was from Fort Lyon, not as to its location. It was 
 where old Fort Aubrey was located formerly. There was to 
 
 trace of it there at the time I first crossed in 1856. The town of 
 Cimarron in Kansas has no relation at all to this crossing. It was 
 further west. This Cimarron crossing was named from an old dry 
 river bed that ran into New Mexico. The Cimarron crossing was 
 a branch of the Santa Fe trail that ran down and crossed the Cimar- 
 ron river and got its name because of the Cimarron river and not 
 because of any town on the Arkansas. I didn’t see the river 
 
 2697 at any other times in the years 1861, 1862 or 1868 than the 
 ones I have spoken of. 
 
 I never saw the river during the months of May or June when 
 there was any running water in it, that I recall. I think I didn’t 
 cross the river at any point in Kansas in the year 1869. That was 
 the year I went in on leave in January and February, I think, and 
 1 don’t think I saw it at that time. I have heard the name of the 
 Russian prince that I spoke of, but I don’t think it was the Grand 
 Duke Alexis. 
 
 2698 William R. Beatty, Denver, Colorado. 
 
 Direct examination. 
 
 By Mr. Hayt : 
 
 I reside in Denver, Colorado, and am sixty-six years of age. I 
 am a book-keeper by occupation. I have resided in Denver about 
 forty-four years. I was on the Arkansas river in the State of Kansas 
 or in the eastern part of the State of Colorado most of the summer of 
 1863, in fact during all of that year. I was a member of Corn- 
 
 2699 pany F., 1st Colorado Calvar} 7 , stationed at Fort Lyon. We 
 were recruited in Denver and first went from here on horseback 
 
 to Fort Lyon and then from there to New Mexico and back again to 
 Fort Lyon. On that trip going south we struck the river, I think, 
 about ten miles below Pueblo ; then we followed the river to Fort 
 Lyon. On that first trip we didn’t go east of Fort Lyon farther 
 than a few miles below. I think that was early in the spring of 
 1862. 
 
 I next saw the river coming from New Mexico to Fort Lyon during 
 the winter of 1862-3. I think we struck the river at Bent’s Old fort, 
 forty or fifty miles below Pueblo. We went down to Fort Lyon 
 along the river and were there the balance of the winter until in 
 the spring of the year. On account of Indian troubles the company 
 I belonged to and a section of the Wisconsin battery was 
 
 2700 ordered to old Cimarron crossing, somewhere near a hundred 
 miles below Fort Lyon. We were there during most of the 
 
 summer of 1863. We were sent there to protect the trains and 
 stages. We camped on the north side of the river. I was up and 
 
the state of Colorado et al. 
 
 78? 
 
 down the river more or less during the time, probably thirty or 
 forty miles below the Cimarron crossing, and I think I made two 
 trips to Fort Lyon during the time. To the best of my recollection, 
 Cimarron crossing was about one hundred miles below Fort Lyon 
 and I think was within the exterior boundaries of the State of Colo- 
 rado. I left the Arkansas river, I think, somewhere near the last of 
 September or first of October in 1863. We then came to Fort Lyon, 
 went down to Fort Union, New Mexico, probably stayed there 
 
 2701 a week and then back to Fort Lyon. I was at Fort Lyon all 
 of the winter of-1863-4. 
 
 When I first saw the Arkansas river in 1862 there was running 
 water all the time down to Fort Lyon and some miles below. It 
 was generally, w.ith few exceptions, fordable with a horse. My 
 recollection is that once or twice there was quite a freshet or flood. 
 
 I think at one time the rise in the river lasted from two to three 
 weeks. For two or three weeks it was a little hard to get across the 
 river. It was a little dangerous to cross it on horseback. In 
 1863 when we came there there was running water constantly at 
 Fort Lyon probably one or two feet deep. It would vary as you 
 crossed. It was about thirty or forty rods wide, according to my 
 recollection. In 1863 when we left Fort Lyon to go to Cimarron 
 crossing there was a good, fair stream at Fort Lyon. As we went 
 down the river it got less. When we got about fifty or sixty 
 
 2702 miles, to the limit of the timber, from there down there was 
 no running water in the river at all. All the time I was at 
 
 Cimarron crossing there was no running water in the river. It was 
 perfectly dry as a general thing. It was perfectly dry at a point 
 sixty miles below Fort Lyon, and that was the condition that entire 
 season of 1863 while I was there. The river was perfectly dry from 
 the time I got to Cimarron crossing the first time until I left it the 
 last time — no running water at all. (Objection.) My recollection 
 is that we got down there some time toward the latter part of June, 
 and I think that was near the latter part of September or a little 
 later when we left. As to getting water for the camp, and for the 
 stock, on the south side of the river probably half or three quarters 
 of a mile above our camp was a depression in the river which had 
 standing water in it all the time, where we watered our stock. For 
 camping purposes we had holes dug in the sand. You could reach 
 over and take a bucket and dip about one tin full of water and go 
 to another hole and fill your bucket. As a general thing, below 
 that point we got the water in the same way, by digging in the sand 
 in the bed of the river. We could always get a little water. 
 
 2703 To the best of my recollection the only irrigation ditch at 
 that time taking water from the Arkansas river between 
 
 Pueblo and Cimarron crossing was at what was called the Boone 
 ranch, about eight to twelve miles below Pueblo. As to the size of 
 that ditch, in going into the Boone farm you could easily step across 
 it. Probably if it was full it would hold a foot to a foot and a half 
 of water — possibly two feet. 
 
m 
 
 l’HE STATE OF KANSAS VS. 
 
 C ross-exa m i nati on. 
 
 By Mr. Ashbaugh : 
 
 This is the only Cimarron crossing that I have any knowledge of 
 on the Arkansas river. It is my impression it was within the State 
 of Colorado. My understanding was that it was a crossing of the 
 river to avoid the main crossing in the Raton mountains that went 
 over the country to the Cimarron river, and to avoid the main part 
 of the Raton mountains. There may have been another Cimarron 
 crossing away down the river near Fort Dodge, the trail from which 
 finally met this trail, but not to my knowledge. In my reference to 
 Cimarron crossing I do not mean the Cimarron crossing near Dodge 
 City. In my observations along the river in 1863 I was nearly 
 thirty or forty miles below this Cimarron crossing that I have de- 
 scribed once or twice. My impression was that we were very nearly 
 into Kansas, if not in Kansas. That was my impression at the time. 
 
 2705 Harris A. Newton, Denver, Colorado. 
 
 Direct examination. 
 
 By Mr. Hayt : 
 
 I have resided in Denver about ten years, the last time. I keep 
 a jewelry store, and am fifty-four years old. I was familar with the 
 Arkansas river from Las Animas clear to Great Bend, Kansas, in 
 1879. I drove a herd of sheep down along the river that year. 
 My brother, George Newton, who resides at Debeque, Colo- 
 
 2706 rado, and his wife, were with me at the time. We had six- 
 teen hundred head of sheep with us. We bought part of 
 
 them in New Mexico and the balance in Las Animas. We left Las 
 Animas about the middle of August and drove them to Emporia, 
 Kansas. We drove them about eight to thirteen miles a day. 
 From Las Animas down by Fort Lyon and Granada and down to 
 the Kansas line or a little below, sa}' about Holly, we seemed to get 
 plenty of water in the river most any place to water them. From 
 there on we had trouble about water. By nine or ten o’clock in the 
 morning we turned in on the river with the sheep, driving them 
 down in the river bed on the sand until we found water. There 
 was just a little running water in places. In the rest of the places 
 it was dry. I remember one day we had no water for the sheep. 
 We couldn’t find any water. After nine or ten o’clock in the morn- 
 ing we drove all day in the river bed. I remember we found water 
 next day somewhere. When you drive sheep they ought to 
 
 2707 have water every day. We couldn’t find water even in holes 
 on one day, but there was only one day on the trip when we 
 
 had no water for the sheep. We would generally find a little run- 
 ning water. The bed of the river was all dry. It was a little damp 
 sometimes, but just a bed of sand. All dry sand and no water in 
 
THIS STATE OF COLORADO FT AL. 
 
 789 
 
 the holes and no running water. We probably took, to make that 
 trip, three or four weeks from Las Animas to Great bend, arriving 
 at Great Bend some time in the latter part of September. When 
 we got to Dodge City there was a bend in the Arkansas river below 
 there and we took the route that went along by the railroad, by 
 Spearville, and then struck the river maybe twenty or thirty^ miles 
 below Dodge. It was dry along there more or less clear down to 
 Great Bend. From Coolidge to Dodge City was the driest part of 
 the river, through by Lakin and Garden City and along 
 2708 there. It was dry the whole distance except in places where 
 we found some running water. There might be several little 
 streams. It might run for half a mile or a mile and then it sank 
 back again. As the prairie man says, it rises in the river a little and 
 then sinks again. I didn’t see the river again that year. We left 
 the river at Great Bend. We came back in the spring of 1880 with 
 a team and travelled thirty or forty miles a day, and we didn’t need 
 any water only for our horses. We found enough for them. We 
 didn’t pay any attention to the river coming back; we travelled too 
 fast. 
 
 Cross-examination. 
 
 By Mr. Ashbaugh : 
 
 I was not along the river in the spring of 1879. There was water 
 in the river where we saw it in the spring of 1880. We came 
 
 2709 back in April, 1880. My observation along the river when 
 we had the sheep there was from some time in the latter part 
 
 of August until the latter part of September, 1879. I crossed the 
 river below Great Bend in 1872. There was water in it then, and 
 we swam cattle over it there. This I think was the first week in 
 June, 1872. We crossed the river there about five or six miles 
 below the mouth of the Walnut. We had about twenty-two hun- 
 dred head of cattle. Yes, we had to swim them across the river. 
 I remember there was a short distance there that we swam 
 
 2710 them. I had to swim the horse to get over. We were going 
 to Ellsworth, going north. We came up the old Chisholm 
 
 trail. This was the fore part of June. I had gone down to Texas 
 in February. In going down I crossed the river on a ferry in the 
 Indian Territory. I crossed the river two years later, in 1874, at 
 Great Bend. We had cattle then. There was not much water in 
 the river at that time. That was about the first of September or 
 latter part of August. There was just a little water — five or six 
 inches deep. It was shoe deep — water enough for the cattle — and 
 it might have been thirty or forty yards wide. At that 
 
 2711 time we had about 2800 head of cattle. These cattle we 
 brought up to Colorado. 
 
 In 1872 and i.874 are the only times that I saw the river in 
 Kansas in respect to my cattle business. In 1874 we crossed at 
 Great Bend and came up the Walnut and then turned north and 
 
790 
 
 THE STATE OF KANSAS VS. 
 
 followed up the Smoky Hill. At that time of the year there was 
 not very much water in the Smoky Hill. There was run- 
 2712 ning water in most places, not in every place. During the 
 early ’70’s I didn’t see the Arkansas river in the State of 
 Kansas at any other time or place than I have mentioned. 
 
 Redirect examination. 
 
 By Mr. Hayt : 
 
 I crossed the Arkansas river in 1872, I think, about five or six 
 miles below the month of the Walnut, at Ellinwood. I don’t re- 
 member how the Walnut was at that time, and I couldn’t say 
 whether any of the water in the Arkansas river was coming from 
 the Walnut or not. I think we crossed below it. We crossed it in 
 an hour or two and went right on north. 
 
 2714 Robert Roberts, Denver, Colorado. 
 
 Direct examination. 
 
 By Mr. Hayt: 
 
 1 am sixty-eight years of age and have resided at Denver, Colo- 
 rado, about ten or twelve years. I have been around there for 
 twenty seven years, I guess. I used to be in the stock business. I 
 don’t do much of anything lately. 
 
 I was along the Arkansas river in 1871 and was located at that 
 time at Emporia, Kansas. I was a stone mason at that time. I was 
 sent over to the Arkansas river by a party to see about getting some 
 rock and to look over the country to see if I could get some rock. 
 That was somewhere in the neighborhood of November or October, 
 1871. I struck the river on that trip not far from where the 
 
 2715 Santa Fe trail came to it, across from Newton, in there. I 
 should think that would be somewhere around Hutchinson. 
 
 I should think Hutchinson would be the nearest place. Of course 
 there were no cities there then. At that time I was at and about 
 the river perhaps a week more or less. I went up and down the 
 river from that point maybe six or eight miles; then Ijwent out in 
 the country some. T couldn’t say there was any flow of water in 
 the river at all when I saw it. There didn’t seem to be 'hardly any 
 on top. There were pools here and there, but I couldn’t say that I saw 
 any running water at all. I didn’t see it running very much any- 
 how. It was in pools. I saw quite a lot of holes. Hardly 
 
 2716 any little runs from one little pool to another. I crossed the 
 river at that time on foot and didn’t take off my shoes nor 
 
 get my feet wet. I crossed it dry shod. We had to go to one place 
 and we had to go a little higher up. That was the first time I ever 
 saw the Arkansas river in that country. I saw it again in 1872,. 
 either in March or April, about Earned. The first place I stopped. 
 
THE STATE OF COLORADO ET AL. 
 
 791 
 
 was maybe between Larned and what they called the Big Bend. 
 There was considerable water in the river at that time. It was not 
 very high, though. The water was in a kind of two streaks. There 
 was one on this side and one on the other side. The one next to the 
 side we were on was maybe ten or fifteen yards wide and about a 
 foot or eighteen inches deep, I should judge. The other stream was 
 small, and there was sand between these two streams. I was 
 
 2717 not up at that point very long at that time. I was laying 
 stone. 
 
 I next saw the river in 1872 about Dodge City, right between 
 where Dodge City is now and the fort. We camped right on the 
 bank there. I think that was in May. I was laying stone there 
 also. The river had quite a good deal of water in it there at that 
 time. That was in two streams also. The heavier body of water 
 ran on the side next to where we were — next to Dodge City. 
 
 2718 There was quite a stream there. It was perhaps a little 
 deeper than a foot and maybe twenty } 7 ards wide in one 
 
 place. I never went so much on the other side, but I could see it. 
 It looked like a small stream. There was quite a sand bank be- 
 tween the two streams. 
 
 I think the next time I saw the river was some time in the latter 
 part of July, about between thirty and forty miles up. The river 
 was smaller. 
 
 The next place where we were on the river was right near where 
 the State line between Kansas and Colorado is. The water was 
 very small then. It was still getting smaller and we had to sink 
 barrels to get water for our camp. We couldn’t get enough water 
 in the river. There was a little water there, but we had to sink 
 barrels in the sand in the bed of the river so that we could 
 
 2719 get it. I stayed there until pretty near Christmas. It seemed 
 as though the water was getting less all the time. There was 
 
 no running stream at that time near the State line that I could see 
 from the time I went there until I left. I know the boys took the 
 mules over the other side to water them in a hole. 
 
 Cross-examination. 
 
 By Mr. Ashbaugh : 
 
 We started from Emporia in 1871 and passed through Cot- 
 
 2720 ton wood Falls and Peabody. Newton was not started at all. 
 From Newton we crossed the Little Arkansas river. There 
 
 was quite a little bit of water in it. I should think it may have 
 been nearly thirty feet wide and six or eight inches deep. The town 
 of Hutchinson was not then started. There may have been a few 
 camping around there. I didn’t cross the river near where 
 
 2721 Hutchinson is now located. I believe we did cross the river 
 one day about six miles above. I crossed the river up above 
 
 the next year. I didn’t cross the river in 1871. We were away in 
 the middle of it anyway one day. But in November, 1871,1 didn’t 
 
792 
 
 THE STATE OF KANSAS VS. 
 
 cross it to the other side, but went far enough to see the 
 
 2722 banks on the other side. We were afoot then. We went 
 down into the bed of the river, but didn’t go across. We were 
 going from one point to another. There were no trees in the 
 
 2723 bed of the river. There was some drift wood, etc., however. 
 There were no trees growing on any of the sand bars, no wil- 
 lows, no cottonwoods and nothingof that kind. There were sand bars 
 in the bed of the river. I didn’t measure them. There were some 
 places lower than others, of course, where there was sand in the 
 water. I guess I am sure this was the Arkansas river. I crossed 
 Cow creek afterwards ; I didn’t at that time. I never saw any water 
 in Cow creek. I crossed Cow creek — I had to cross it. The bed of 
 Cow creek was quite wide too. Maybe a hundred feet or more. I 
 
 don’t know. The bed of Cow creek is not quite so wide as 
 
 2724 the bed of the Arkansas. Pretty wide though. I should 
 think a hundred feet. It seems like where we crossed Cow 
 
 creek the banks were a little deeper than the banks of the Arkansas, 
 maybe five or six feet where I crossed it. I was down there about 
 a week, I guess, and then went back to Emporia. There were no 
 towns built west of there. They were building a railroad 
 
 2725 there, you know. I went back the same way I came, through 
 Newton. There was not much Newton there. I stayed the 
 
 winter of 1871 and 1872 in Emporia. I crossed the Little Arkansas 
 on the cars in the spring of 1872. I crossed Cow creek in the spring 
 of 1872, but I don’t remember whether there was any water in it 
 then. There was water in the Arkansas then. I couldn’t tell you 
 how deep at that point. I never went down to the river. The rail- 
 road then came up not very far from Larned, but I am satis- 
 
 2726 tied that we came up as far as Great Bend in the spring of 
 1872. I know the railroad was built as far as Great Bend in 
 
 the spring of 1872. I saw the river at Larned that spring, but I 
 couldn’t tell you exactly how deep it was. There was plenty of 
 water in it, but not from bank to bank. The banks were in some 
 places pretty wide there, but I don’t know how wide. Maybe they 
 are in some places half a mile wide. The water was in little 
 
 2727 places. I couldn’t tell how wide it was. In May or June, 
 1872, I was near where Dodge City now is. Well, the river 
 
 was in two kinds of streaks there, one on the other side of the river 
 and another on this side. I came up the river that summer to the 
 State line, until the road stopped. It took all summer and pretty 
 near to Christmas. There was no time during the year 1872 that 
 the river was very dry. I guess there was some time when it was 
 three or four feet deep. I think it was. That is, not all over the 
 bed of the river. It was three or four feet deep a very short 
 time. I couldn’t tell. It was not very long. It was getting 
 down and down all the time. It got up at one time, of course. 
 That high water didn’t last very long ; it went down 
 
 2728 very quickly. It wouldn’t be any more than a week anyhow. 
 
 I couldn’t tell how long it lasted. I don’t think it rained 
 
THE STATE OF COLORADO ET AL. 
 
 793 
 
 along the river in the summer of 1872 all summer to amount 
 to anything. I don’t know whether it rained above or not. It 
 didn’t rain where we were to amount to much. It was very dry. 
 It was a very dry summer. During the summer of 1872 the river 
 never got any height at all. That was the highest, when a little 
 freshet came down. It didn’t come up practically as high as the 
 banks, not near. The banks at Dodge are three or four feet high, 
 I should think. They are low banks. I didn’t cross any other 
 streams that had water in them. I don’t remember, when I crossed 
 Walnut creek, just below Great Bend, whether there was any water 
 in it or not. If I crossed it I crossed it on therailroad. You 
 
 2729 see our work started this side of there. The railroad went 
 up to the State line in 1872. I was working on the grade on 
 
 the railroad in 1872, up to Coolidge, along from place to place. I 
 should think they ran construction trains up to Coolidge in 1871 
 which were carrying passengers. They called the town at the State 
 line Sergeant then. I think Coolidge is the same place. I 
 don’t think they were running any trains that way when we left, 
 but the construction trains were working, and then we came down, 
 and if I remember right we came down on box cars or flat cars or 
 something for quite a ways and then we got a regular car. 
 
 2730 It was either in May or June that the water was highest in 
 that year. 
 
 2731 William A. Pekry, Denver, Colorado. 
 
 Direct examination. 
 
 By Mr. Hayt : 
 
 I have resided in Colorado for twenty-one years. I was on the 
 Arkansas river in Kansas in 1870 for a short time. I was camped 
 probably eight miles above Wichita, for two or three weeks, in that 
 vicinity. I went to that place thinking of locating a claim 
 
 2732 for a homestead. During the time I was there I was pros- 
 pecting the country, driving around from place to place. I 
 
 was at Wichita at the time. It was quite a small place. I don’t 
 know what the population was. I didn’t see the river right at 
 Wichita, but I saw it above Wichita, from a point seven miles above 
 to twenty-five or thirty miles above Wichita. There was very little 
 running water in the river at that time. There seemed to be some 
 pools or depressions in the river bed that were full of water, but 
 very little running water. It was in small, narrow streams like. 
 There would be a strip of water and a strip of sand, and there would 
 possibly be more water there in the morning than in the evening. 
 In the cool evening the water would rise more, but I don’t think it 
 was over five or six inches deep that I saw the running water there. 
 That was the condition all the way along the distance that I 
 saw it. 
 
794 
 
 THE STATE OF KANSAS VS. 
 
 2733 I noticed the Little Arkansas river at that time about five 
 to seven miles above Wichita. I crossed the river. There 
 
 was more water in the Little river than in the Big Arkansas, as I 
 remember it. This was in the fall of 1870, probably in October. 
 I didn’t see the Big Arkansas river below its junction with the Little 
 Arkansas. I crossed the Big Arkansas river from time to time in a 
 wagon, and I noticed the condition of it. I don’t know as there was 
 anything in particular that caused me to notice its condition with 
 reference to the water, but we were remarking it was very little 
 water to be called a river. Where I had been raised there was a 
 great deal more water in the rivers. It was a matter of surprise to 
 me to find a stream of that kind called a river. 
 
 2734 Cross-examination. 
 
 By Mr. Ashbaugh : 
 
 I saw the river from about five miles above Wichita to about 
 twenty-five or thirty miles above. There was a town between the 
 rivers, about eight miles above Wichita, but I cannot recall the 
 name. It seems to me it was something like Moline. I 
 
 2735 couldn’t tell you how many people there was in Wichita. It 
 was a small place, I suppose two or three hundred, something 
 
 like that. I don’t remember meeting anybody there whose name I 
 could now give you. 
 
 The Little river was probably twenty or thirty feet wide and prob- 
 ably six or eight inches deep. The Big river was probably a quarter 
 of a mile wide. There were no trees on the sand bars there. There 
 might have been sand bars there, but I don’t remember, 
 
 2736 but no trees. We were along the river there about three 
 weeks. I didn’t see the river again only from the train, pass- 
 ing up and down. I never saw the Arkansas river in Kansas when 
 it had any water in it ; that is, none to speak of. I think it was in 
 October, 1870, when I saw the river above Wichita as described. 
 
 Redirect examination. 
 
 By Mr. Hayt : 
 
 I passed along the river on the train, both in the day time and at 
 night, I guess. I passed over that road pretty often, but I don’t 
 remember how the river was. I didn’t pay any attention to it. 
 
 2737 Henry T. Galbreath, Denver, Colorado. 
 
 Direct examination. 
 
 By Mr. Hayt : 
 
 I have lived in Colorado five and a half years, the last time. In 
 1861 I might say I was living on the Arkausas river. I travelled 
 that summer. I have been a tramp most of my life — a retired 
 
THE STATE OF COLORADO ET AL. 
 
 795 
 
 tramp, probably. I am yet in the business. I will soon be sixtv- 
 two years of age. I passed down the Arkansas river in 1861. We 
 started twenty miles east of Pueblo, opposite the mouth of the 
 Huerfano, and we travelled along the Arkansas river to where the 
 road leaves the Arkansas river. Now it is called Ellinwood but it 
 had no particular name then. There was an adobe and sod bouse 
 about six miles east of the present Great Bend, maybe eight, some- 
 think like that. I came back up the river that year. We were at 
 what we called Coon creek. That would be about three or 
 
 2738 four days’ travel west of that. I remember that very dis- 
 tinctly. We were on the river at Coon creek on the fourth 
 
 of July, 1861. We went up the river as far as South park, Colorado, 
 right up the river all the way. As we went down the Arkansas 
 river that year there was very little water about Great Bend. After 
 we passed Larned — that is where Pawnee fork comes in — there was 
 reasonably enough water for cattle. We could water the cattle with- 
 out any trouble after we passed Larned. There was just a little run- 
 ning water, but not any, you might say, above Coon creek, that is, 
 about twenty miles above, as I remember it. We had trouble sev- 
 eral days to water the cattle. We had sixty head of working cattle. 
 When we came up the river there was plenty of water — considerably 
 more than when we went down. There had been a rain above, but 
 1 couldn’t tell just where it fell, but not a great ways from Dodge. 
 In about a week after we struck the river we were all surprised to 
 get out of the water. There was about two days the low bottoms 
 
 2739 on the Arkansas river overflowed from this flood, but in two 
 days’ travel we were out of the water. We believed it was 
 
 local rains did it. After that we had some water, but only a little 
 more than we had when we went down. We commenced to notice 
 the scarcity of the water above the Cimarron, and then for two or 
 three or four or five days we had very little water. Cimarron is 
 about thirty miles above Dodge, as I remember it. For five or six 
 days we had but little water, and then we began to get what we 
 called the mountain water and had plenty of water then. We would 
 generally dig a little well when we camped to get clear water. 
 
 In 1866 I passed along the river again. We came from Leaven- 
 worth on the Union Pacific railroad over to Great Bend and then 
 up the river with three horses and a wagon. That is all the teams 
 we had that year. I might say that we put in there the last week 
 or two in May and the first week or two in June. There was plenty 
 of water there. 
 
 2740 I made the trip again in 1868, coming this way. We 
 passed from Great Bend all the way up to Pueblo in the lat- 
 ter part of May and first of June. We found plenty of water, 
 enough for our purposes. If we had had a herd of cattle we would 
 have had plenty but with just three horses we had no trouble in 
 getting water for them. Others complained a little of the scarcity 
 of water, but we had no occasion to. There was very little water 
 running in the river for quite a ways, you might say all the 
 
790 
 
 THE STATE OF KANSAS VS. 
 
 wav from Great Bend, almost, to where Coolidge is now. It was 
 called Big Timbers at that time. After we got above Coolidge there 
 was plenty of water at the Big Timbers, or Pleasant Encampment, 
 is what is called the Aubrey crossing. They are all right there at 
 one place. I never went all the way down the river again 
 
 2741 until 1870. I shipped cattle down. There was not a great 
 sight of water. After I got down always I noticed the water 
 
 was scarce. I generally went down in October, but I would ship 
 the cattle, of course, sometimes in November, after 1876, most every 
 year. Sometimes two times a year I would go down with cattle. 
 Most every fall I went with cattle, and frequently saw the river on 
 those trips and at other times. I have seen it dry at Larned, and 
 even down at Nickerson it was almost dry. We used to feed at 
 Nickerson. In 1883 I travelled on the river that year from Larned 
 east and found very little water. I had a bunch of about fifty 
 horses, and we had to look a little out for water. We made the 
 trip about the same months as the previous trips. From Larned 
 east there was no time when we didn’t find running water. I might 
 have, but it would only be very short. If you went to the river to 
 water stock }mu would find water, a little bit, going either up or 
 down. I was not on the river at Larned. I came in from the north- 
 west and went down the Smoky Hill country. 
 
 2742 I located in Kansas in 1883, in the town of Nickerson. I 
 farmed in Kansas every year. The last six or eight years I 
 
 farmed on the Arkansas river bottom on the south side of the river. 
 The farm was about a mile and a half from the river, on the north 
 side. That was from 1883 to 1898, you might say, at Nickerson, 
 eleven miles west of Hutchinson, in Reno county. I noticed the 
 water in the river from 1883 up to 1898. I generally noticed that. 
 I lived right on the bank of the river. The first few years I was 
 there I didn’t pay much attention to it, but after I bought lands 
 south of the river I crossed the river every day more or less, and I 
 noticed the last six years I was there, every time I crossed it almost 
 every day, if I went down, and often there would be a little stream 
 of water running there. As compared with the previous 
 
 2743 year, the water in the river was increasing. I noticed 
 that. I used to think the flow was steady, but once in 
 
 a while there was a dry year, and of course that would make a dif- 
 ference, but on the whole there was more water. It was increasing. 
 There was more water in 1884 than previously. I noticed it 
 was increasing, I think about four years there. I don’t think I saw 
 the river there right under the bridge where I used to cross 
 but there was a little running water there all the time for about 
 four years. In the earlier years — you see the point I last men- 
 tioned was east of where I was in the earlier years — about thirty or 
 forty miles east. When I first knew that country there was very 
 little of it farmed, but to-day it is mostly farmed. This seems to 
 have had the effect of holding the water from going into the river, 
 and if I should find the river less in Kansas about Wichita of late 
 
Statu: ofr Colorado fit al 
 
 Wi 
 
 years than daring the previous years I would attribute that 
 
 2744 to the local country there — the local conditions that I have 
 just mentioned. Most Kansas farmers like water, and if any 
 
 falls on their land they want to hold it. In the earlier years you 
 would find portions of the river where there was no running water 
 on top of the sand. I have noticed the river at different places. 
 Quite often and most anywhere you might be able to find a spot, 
 and then maybe the next mile you would find quite a little stream. 
 In certain places the winds would strike the river and whip across 
 and make a dry bed, and then it would rain in another direction 
 and make quite a rise in the river, and it would have quite 
 an effect on the river there at times. I have stated that in driving 
 cattle up and down there several times I found plenty of water for 
 stock. By that I mean so you could water cattle. I brought a herd 
 of cattle up there in 1866 and it was the only herd that crossed the 
 plains that year. It was not difficult to find water that year. 
 
 2745 We had no trouble. It was in 1861 that I had the trouble 
 in getting water, going the other way. These cattle that I 
 
 was driving belonged to me. I was the owner. They were 
 my cattle. I was in the cattle business in those days. I onl}r 
 brought that one herd across. The cattle that I shipped were my 
 cattle. In saying that my occupation was that of a tramp I meant 
 I was a tramp four years — “ bull-whacking.” I don’t mean what 
 we call a hobo tramp. We had tramps of a different style in that 
 country. I tramped across the plains and everywhere. I tramped 
 because it was my business, and I accumulated a few dollars 
 and got to owning cattle of my own, and was called a cattle king for 
 a long time, and after a while I got tired of the title and quit. I am 
 a tramp now. When I say I was tramping I mean to say I 
 was “ bull-whacking ” and walked to drive the cattle in those early 
 days. 
 
 2746 Cross-examination. 
 
 By Mr. Ashbaugh : 
 
 I left Kansas the last time the last day of April, 1889. I was 
 farming both ways from Nickerson — north and also across the river. 
 The bridge was on my land one hundred feet. I had 296 acres in 
 the tract south of the river. I owned it about six or eight years. 
 I don’t recall just how long. It was what we called first bottoms. 
 There was a little strip of land right along the river bottom that 
 was very low, just the height of the river bed, and then there was a 
 little sand ridge right along there probably eight feet. That sloped 
 back to the south to where in the dry time it was not more 
 
 2747 than two feet to water. Some of it was too wet to farm. We 
 found water at about seven feet, but our well was about 
 
 twenty-one feet deep. We struck a better stratum of water. It was 
 what we call a drive well. We put that well down about 1890 or 
 1891. I don’t know how deep it was to water in that well when I 
 
stA'tic (itf kANSAg VS. 
 
 left there. I didn’t measure it. It was a drive pump. There 
 
 2748 was no very good way of telling the depth to water. It was 
 in April that I went down the river to Ellinwood from 
 
 Pueblo, in 1861. We put in all the time from about the 8th of 
 April until about the first or second day of May, when we left the 
 river. We travelled about fifteen miles a day. There was no high 
 water in the river that spring. We met some water as we came 
 back. The high water came about the 26th, 27th, 28th or 29th of 
 June. It rained all night on us. The next time when we went to 
 the Arkansas river we were surprised to see such a river. We 
 
 2749 were also surprised again in a few days to be above it. There 
 was water in Cow creek that spring, and considerable water 
 
 in the Walnut. We met the mountain water near what we called 
 the Big Timbers, where Coolidge is now. That was when we came 
 back that summer. We found it came from the mountains. That 
 was our idea of it. The mountain water was muddy. It rolls 
 through a dirty country. The wave of the mountain water maybe 
 was a foot or a foot and a half high. It didn’t last very long. 
 We had water enough. Some of us used to go into tha river almost 
 every day to wash clothes, and we would wade out a foot deep or 
 so. This high water passed down in two or three days, what we 
 called the first wave, and the first water is always muddy water, when 
 there is a roll of water passing down the stream. There was some- 
 thing said about there being a drought through all that 
 
 2750 country in 1860 or 1861, but it didn’t seem to affect anything 
 where I was in particular. 1860 was generally known as a 
 
 very dry year. I was on the Platte river that year, and it was a dry 
 year there. 1861 was not as dry as 1860, but still the water was low. 
 In 1862 I came up the Platte river again and went down the Platte 
 in January, 1862, and then I came back again the last of June and 
 July. I was in Denver in August, 1862. I had come up the Platte. 
 I went to the Arkansas and hauled hay there pretty nearly 
 
 2751 all of August, a little of September and part of October, 1862. 
 I was there ail of three months in 1863, hauling hay. We 
 
 went down as far as to Fort Lyon, we called it then, at the Aubrey 
 crossing. The real Cimarron crossing was down near Dodge City. 
 In 1866 I came up the river from Great Bend and didn’t find any 
 high water in the river that summer. I got onto the Arkansas 
 river that year about the 11th or 12th of July. When we got onto 
 the river in 1866 I guess you might say there was a foot and a half 
 of water where I first came to the river there at Great Bend, and 
 then we came across what we called the dry route when we came 
 over to Dodge. There didn’t seem to be so much. And then up 
 from there I would drive the cattle to the river where they 
 
 2752 would wade in, and they would get enough water. The river 
 is variable during different times of the year. I think about 
 
 April might he called the dryest month down there. If you would 
 depend on the mountain water it would be a little late in the sum- 
 mer. Along down there it wouldn’t get there until probably in 
 
tMk StATE OF COLORADO ^ At. 
 
 m 
 
 July, but they sometimes have floods or freshets. The mountain 
 water would sometimes get there in June and sometimes it didn’t 
 get there, and sometimes it got there in July. In 1863 there was 
 not much water down there, probably not over one-half as much as in 
 1862, because there was less snow and rain ; but at Fort Lyon in 
 1862 the river was up considerably every day, though I crossed it 
 nearly every day. The next year I had no trouble at all, in the same 
 season ; and then the next year I was at Pueblo. It was very full 
 all summer. The water that fills the river in the spring may come 
 from two sources. I lived on the river there about forty 
 
 miles east of Pueblo several years. This high water 
 
 2753 would generally pass down in about a week or ten days 
 as a rule. A little bit longer, maybe. But in a few 
 
 days, it would pass down. I sometimes used to wade across the river 
 and generally didn’t have to wait long if I did. I went down the 
 river in 1876 on the cars — shipping cattle — and then I passed up and 
 down there almost every year. 1 don’t remember that I saw any 
 high water that year. There was one year after that that we had 
 some high water, but 1 don’t remember the year it was; but it didn’t 
 come down the Arkansas, it came down the Apishipa, every bit of it. 
 There were heavy rains up the Apishipa. I was at Nickerson from 
 1883 to 1889, but I was not there during 1883, and I know the last 
 few years 1 was there there was more water in the river than 
 
 2754 the first few years I was there. I was not familiar with con- 
 ditions at Nickerson until I moved there. I used to pass 
 
 through on the cars, but not to know much about the conditions of 
 the country. I think what caused the increase in the water was the 
 irrigation, if you want the question answered. That is the way I 
 understood it. I have understood it so for fifteen years and longer. 
 The irrigation in Colorado — the waste water strikes its level and 
 when it does it strikes the level of the Arkansas river, and the more 
 there is appropriated the more there is to run down the Arkansas 
 river; so the more it is confined the more water will be found down 
 there. If it went with a rush and was not taken out it would pass 
 down before time. This waste water leaves the fields generally 
 pretty close to the river — the early ditches. As a rule I think 
 
 2755 it leaves it on the surface. It is longer getting there and gets 
 there during the dry season. If they take all of the water out 
 
 of the river in Colorado for irrigation, certainly a part of it evapo- 
 rates and there is not so much water to go down the river as though 
 it had been allowed to flow right down, but it is longer getting there. 
 During the late years I wouldn’t think that the river could be as 
 dry during the fall as it used to be. Whether it would be impossi- 
 ble for the river to have been dry for nine months in succession 
 would depend on the seasons a good deal. I know down there 
 where I was the water ran all the time of late years, and it didn’t do 
 it in the earlier years. If my theory is correct, it would be impossi- 
 ble for the river to be dry in the fall for any considerable period If 
 the river was absolutely dry from August, 1903, until May, 1904, it 
 
800 
 
 TIIE STATE OF KANSAS V§* 
 
 would be contrary to my theory. Well, the seasons would regulate 
 that. 
 
 Redirect examination. 
 
 By Mr. Hayt : 
 
 2756 If they took out fifteen or twenty ditches in Kansas and 
 used the water it seems to me it would have the same effect 
 
 as if it was used in Colorado. It would take it some time to get 
 back to the river. Those ditches in Kansas are operated now, so far 
 as I know. I don’t know anything to the contrary. In 1860 I was 
 only on the Arkansas river at Pueblo in the month of Octo- 
 
 2757 ber. I was not on the river that year in Kansas. I heard 
 no complaints of the lowering of the water level in Kansas 
 
 while I was there. I left Kansas in .1898 or 1899. It was five and 
 a half years ago last May. I lived there about fifteen years. 
 
 Q. Did you notice any difference in the amount of crops grown 
 during the last years you were there as compared with the former 
 years ? 
 
 A. Yes, they seemed to have increased. I heard a great many 
 people say the same, men who had lived there six and eight years, 
 when I left there. 
 
 Q. That is true of your crops, if I understand you correctly ? 
 
 A. Yes sir. 
 
 I don’t know how it is of late years. They report good 
 
 2758 crops — better than ever. I only know this through letters 
 and from friends and acquaintances writing. (Objection.) 
 
 2759 F. W. Swanson, Denver, Colorado. 
 
 Direct examination. 
 
 By Mr. Hayt : 
 
 My age is fifty-seven years, and my residence is Alamosa, Colo- 
 rado. I am in the real estate and insurance business. I have been 
 a resident of Alamosa for twenty-six years. That is on the Rio 
 Grande river. I have been water commissioner for district No. 20, 
 covering the Rio Grande and its tributaries in that district. I was 
 water commissioner in 1900 and 1901. My duty was to distribute 
 the water to each one that was entitled to it according to their ap- 
 propriations. I had something over four hundred ditches under my 
 jurisdiction. 
 
 Yes, I have lived in the State of Kansas. I lived there in 1868, 
 1869 and part of 1870. In 1868 while there I was hunting 
 
 2760 most of the time for buffaloes and wolves. We started from 
 Ellsworth, Kansas, and followed the buffaloes over to the Ar- 
 kansas river and crossed the Arkansas river at a place called Coon 
 Creek bottoms. There was no city or town at that place, but it was 
 
THE STATE OE COLORADO EL AL. 
 
 801 
 
 about twenty miles below Fort Dodge. It was in the fall of the 
 year. That was the first I saw of the Arkansas river. In reference 
 to running water in the Arkansas river, there wasn’t any to amount 
 to anything. There was no running water at that time. We just 
 found water there in pools. We camped on the river for about a 
 week, and hunted up and down the Arkansas river, mostly 
 
 2761 on foot. We left our horses at the camp and went afoot. As 
 to travelling up and down the river, we never went out from 
 
 our camp more than eight or ten miles at the most. We crossed 
 the river and went up and down the river. We didn’t have to go 
 far for buffaloes. 
 
 I next saw the Arkansas river, after that hunting trip, in the fall 
 of 1869. I was then employed by the Government doing carpenter 
 work at Fort Dodge. I think this trip was in October that we 
 started from Hayes City, and we were upon the river until the next 
 May, in 1870, all the time from the fall of 1869 until May, 
 
 2762 1870. I was then travelling up and down the river. I was 
 doing carpenter work, and during that winter the contractor, 
 
 Fletcher, had not supplied beef for the fort, so I was selected to 
 hunt buffaloes and to supply the meat for the fort for the mechan- 
 ics and citizens working there. As to the condition of the river in 
 the fall of 1869, there was scarcely any water. There would be a 
 little here and there in water holes. I walked across the river very 
 often, sometimes three or four times in one day. We used to go out 
 and kill ducks or geese, and I could walk across without getting 
 my feet wet, most of the time. There were little pools of water 
 here and there in the river. These pools were not connected with 
 one another by running water in the fall. 
 
 As to the winter of 18b9-1870, well, towards the spring there was 
 a little more water, and in April I remember once the water was 
 quite high, but two days after I took the trip up the river about 
 ten miles west of what they called Cimarron crossing, about thirtv- 
 five miles above Fort Dodge, the river was comparatively dr}^. It 
 looked to me like it had been from rain or some other cause 
 
 2763 that the river was high below. And then I also camped on 
 a creek called the Saw Log. The Saw Log is located about 
 
 thirteen or fourteen miles from Fort Dodge, towards Hayes City. 
 We camped there in the latter part of April, and we had to break 
 camp on account of the water coming down there, and we moved 
 over on the Arkansas river and found that dry, almost, so that the 
 water must have come from up above somewhere in that creek. 
 During those years we had awfully heavy rainfalls in May. I re- 
 member one storm distinctly. I was between the Walnut and 
 Dodge. We had some teams coming across and the rain came 
 down so that we had to unhitch our mules, and we could hardly 
 stand up, and the water would be three or four inches deep on the 
 open prairie in half an hour’s time. I have seen more rain there 
 in April and May than at any other time. 
 
 Yes, I came to Bent’s fort in 1869, and at that point there was a 
 51—7 
 
TPHE feTATK oi' fCANSA^ VS. 
 
 £52 
 
 little more water in the river than below. From what I know of 
 the water now and my recollection of the stream at that time, I 
 should think it would have been as much as maybe a hun- 
 
 2764 dred cubic feet of water. It was about seventy-five to eighty 
 feet wide, and not very deep. I was at that place in May, 
 
 1869. The river was quite wide there from bank to bank. The 
 channel or the sandy bed of the river was quite wide. I didn’t take 
 particular notice of how wide it was, but down at Dodge I would say 
 maybe from a quarter to half a mile wide. 
 
 I saw the river again in 1871 at Pueblo. I crossed there with a 
 wagon in February, going into the San Juan country. There was 
 some water in the river at that time, but not a great deal. You 
 could easily cross it. There was a narrow channel in Pueblo. We 
 crossed it very handily with wagons. I returned from that 
 
 2765 trip in the San Juan country in the fall, I believe, from there 
 to Denver. On the return trip I crossed the river again at 
 
 Pueblo. I think there was more water than when I crossed on the 
 trip going out. I couldn’t state the amount of water in the river, 
 but we had no trouble in fording it at all. 
 
 Yes, I took up my residence in Pueblo in the spring of 1873, and 
 lived there until the spring of 1877. I lived in that part of Pueblo 
 called East Pueblo, in the house that is now used for the State 
 asylum. It belonged at that time to Senator Chilcott. I rented the 
 place from him and had some cattle and ran a dairy and farmed the 
 place. I saw the river repeatedly in 1873 from the spring of the 
 year until the fall of the year. In the months of May and 
 
 2766 June there was quite a little water for a while, but not very 
 high water. In August there was very little water. The 
 
 river never did go entirely dry. but got low in August and still lower 
 in September. Yes, I lived near the banks of the Arkansas river 
 and there were times that for a day or two the water would be very 
 high and muddy, and sometimes it would be a kind of yellowish 
 mud, sometimes grayish, like it came from different tributaries, from 
 rain. The high water in the river ran down quickly. In a day or 
 two it would be in the normal condition again. Yes, in 1874 I 
 farmed that year on Chilcott’s place. I had a little over thirty acres 
 of corn, and the water was very scarce. I only saved about four 
 acres of corn. Drought caused the loss of the balance of the corn. 
 Yes, I did something towards building an irrigating ditch in 
 1875. I had an irrigating ditch for this corn, but didn’t irrigate 
 
 2767 it, because we didn’t have the water. There was not enough 
 water in the Arkansas river for us. We had to put in a dam, 
 
 and that was more money than we could afford to expend. The 
 ditch was built to take its water supply from the Arkansas river. 
 At Pueblo the river is narrow there and the channel of the river in 
 the middle is deep and in order to have plenty of water for the ditch 
 it has to go up as high as the bank where the ditch is taken out. At 
 the time I saw the river so very low at Pueblo I don’t think there 
 was to exceed two hundred cubic feet of water running up where our 
 
THE STATE OT COtOHAbO ET AL. 
 
 803 
 
 headgate was. The general current was from ten to twelve 
 
 2768 inches deep and about forty to fifty feet wide. In 1875 I, 
 with others, built an irrigating ditch that was then known as 
 
 the Old Town ditch at Pueblo on the north side of the river. I helped 
 to put in the headgate and build the flumes and put a dam at the 
 headgate in order to get the water into the ditch. We got the ditch 
 completed and had the water turned in, and about five miles from 
 the headgate down the river was a dry arroyo that we had to build 
 the ditch across, and a water-spout came down the arroyo and 
 washed out the ditch so that we were not able to get an} r water 
 through it after that. The ditch was about twelve or thirteen miles 
 long, and at its headgate twelve feet wide. I didn’t know at the 
 time how many feet it was supposed to carry, but from appearances 
 I should think it would carry from fifty to seventy-five cubic feet of 
 water per second of time. We would not have gotten any water 
 into that ditch if we had not built a dam in the river. When we 
 built the dam we got quite a bit of water, maybe a hundred cubic 
 feet or something of that kind. The intake of the ditch was built 
 low for the purpose of taking water out of the river without a dam, 
 but the water at that time got so low that we couldn’t divert it into 
 the ditch without a dam. 
 
 2769 In 1875 and 1876 I went up the river above Pueblo to fish. 
 I generally went up as far as the mouth of Beaver creek, to 
 
 what they call Carlisle spring. I used to take my family up there to 
 camp. That is about twenty miles above Pueblo. And I made the 
 trip in the summer time. In 1875 I found a great deal of water in 
 the river. In 1876 1 remember particularly with reference to the 
 flow of water in the river — that there was no time that I couldn’t 
 wade across it. Of course I would get wet, but then I would wade 
 across the river fishing, but below Pueblo I have gone down fishing 
 when we used to catch the fish in deep holes. There was a small 
 stream running in the sand and very little water running in theArkan- 
 sas river below Pueblo. That was true in 1875 and 1876, except 
 occasionally there would be a freshet. I built a bridge on the Fount- 
 ain creek, just east of the main town of Pueblo, and in two hours after 
 the bridge was completed it was washed out by a water-spout. 
 There were frequent water-spouts came down the Fountain 
 
 2770 creek or some of those|dry streams or arroyos. The Fount- 
 ain creek discharges into the Arkansas river just below 
 
 Pueblo, near the farm of a man by the name of Goldstein. When- 
 ever the Fountain was high that way of course the river would rise, 
 but it would run off very quickly. Sometimes there would just 
 come a wave of water and it would just roll down and run off very 
 quickly. These freshets or sudden rises in Fountain creek were 
 caused by rains. I have sometimes seen a wave come down three feet 
 abreast, just like a wave on the ocean, and in ten or twelve hours it 
 would all be over and the Arkansas river would then go down 
 
 2771 to its normal condition. The Fountain creek was practically 
 a dry stream during the summer months. It was just like 
 
804 
 
 THE STATE OF KANSAS 
 
 it is now, only I think I have seen more water in the last two years 
 in the Fountain than I saw at that time. The last few years I have 
 never seen it dry, in fact they are irrigating there now, what they 
 couldn’t do in the earlier days when I lived there. Several that I 
 knew lived up there and tried to farm in the earlier days but couldn’t. 
 I don’t know what to attribute the increase in the flow of the Fount- 
 ain to except they preserve the water some way up above, which I 
 do not know, and that it seeps back into the Fountain after it has 
 been used up above for irrigation. 
 
 In these various trips I made up and down the Arkansas river in 
 Kansas, hunting, I had to dig for water in the bed of the river to 
 make coffee out of when I camped there. That was down below 
 Fort Dodge, and more than one time. I often went to the river and 
 I could find little holes by looking about on the river, little 
 
 2772 water holes along, so that I wouldn’t have to dig. The bed 
 of the Arkansas river in western Kansas and eastern Colorado 
 
 is very sandy. The banks in different places are of different depths, 
 in western Kansas and eastern Colorado, all the way from a foot to 
 three feet in height. The banks of the Rio Grand river as it flows 
 through the San Luis valley in Colorado are from six down to two feet 
 or afoot and a half in places. (Objection.) As you go up the river the 
 banks are lower. The bed of the Rio Grande is sandy, a great deal 
 of the same kind of bottom in the river as in the Arkansas river. 
 (Objection.) In performing my duties as water commissioner of 
 that district on the Rio Grande river, I have had occasion to 
 notice what is commonly termed return waters from irrigation. 
 I have had occasion to have experience in that. (Objection.) 
 I know at the Government measuring station above Del Norte there 
 was less than one hundred cubic feet of water running 
 
 2773 through per second of time. At the same time, below Del 
 Norte, down the river, clear down below Alamosa, I was dis- 
 tributing over three hundred feet of water into the different head- 
 gates. In speaking of the Government measuring station I refer to the 
 station operated by the Federal Government which is located three 
 or four miles west of Del Norte, up the river. There were no tribu- 
 taries of the Rio Grande between that measuring station and the 
 lowest point at which I distributed the water as above stated. 
 There were no tributaries that were running water at that time. 
 There were no rains along the river to augment the supply. I was 
 travelling up the river daily in the performance of my duties. I 
 
 worked about eighteen hours a day part of the time, and 
 
 2774 sometimes twenty-four. (Objection.) Yes, I distributed 
 water to the most southerly ditch, which belonged to Mr. 
 
 Wilkins. He was entitled to thirty-seven feet. He was getting over 
 sixty feet. (Objection.) That was accounted for by seepage water 
 seeping in from the surrounding country that had been irrigated. 
 (Objection.) If Iliad wanted to stop that water going into his ditch 
 I could not, because there was ten or twelve tight dams on the river 
 between his ditch and Del Norte. Each dam was taking all the 
 
THE STATE OF CO I. OR A DO ET AL. 
 
 805 
 
 water that was in the river, taking it out in a ditch, and a mile or 
 two below there would be a running stream in the river again, return- 
 ing from the irrigated lands surrounding. These ten or twelve 
 tight dams were constructed to raise the water to run it into 
 
 2775 the headgates of the different ditches. (Objection.) And 
 the reason Wilkins got more than he was entitled to was 
 
 because those having a prior right were above where this water 
 originated or came back into the river. I account for this return 
 water where it measured only about one hundred cubic feet per 
 second of time at the measuring station above Del Norte — and then 
 I distributed something over three hundred cubic feet of water to 
 the ditches below — by the fact that the water that has been used 
 earlier in the season for irrigation purposes on the land would seek 
 its level and run back into the river. Of course, it would take it a 
 long time to run underground, and therefore in the latter part of 
 the season there was always more water in the lower part of the 
 river than at the upper end, and there was always more water at 
 the lower end of the river in the valley than at the upper 
 
 2776 end, most of the years. 
 
 Cross-examination. 
 
 By Mr. Ashbaugh : 
 
 During the years from 1868 up to 1870 I said that I sometimes 
 found the Arkansas river dry. I occasionally found it when there 
 was water in it for a few days all along the river, as I said. I was 
 there along in April and May. I wouldn’t be positive, that I was 
 along the river in June. I don’t think I was. The highest water I 
 ever saw in the Arkansas river was in April, 1870, above Fort 
 
 2777 Dodge. I was there all that month. It lasted four or five 
 days. The river didn’t go entirely dry then. I don’t know 
 
 anything about the mountain water. I have heard of mountain 
 water. As to the snow melting in the mountains and running down 
 the steam, I never heard it mentioned by the name of mountain 
 water. I do know that the snows melt in the mountains and run 
 down the Arkansas river. They commence about the latter part of 
 February, I should think, or March, to some extent, and reach their 
 highest stage about in May. The flow of this mountain water down 
 in Kansas gradually rises, commencing, I guess, in the latter part 
 of February, and I should think it keeps on until June and 
 
 2778 sometimes probably as late as July. I should judge that the 
 highest water that I ever saw at the Cimarron crossing coming 
 
 fromthe melting snows was not toexceed one hundred and fifty to two 
 hundred feet. As to the depth in the river, that would depend on 
 the different widths of places. In some places it would be deeper 
 and in some shallower, according to the formation of the channel. 
 It may have been seventy-five or eight- feet wide, and maybe six, 
 eight or ten inches deep. That is the deepest I ever saw it at that 
 point except when there were very heavy rains. I can’t tell what the 
 
806 
 
 THE STATE OF KANSAS VS. 
 
 rainfall in the eastern part of the State of Colorado is on an average. 
 1 don’t know what the rainfall in western Kansas is on an aver- 
 
 2779 age. I don’t know what the average flow of the Arkansas river 
 is at Canon City. I never had occasion to measure it. I 
 
 couldn’t average it, because I kept no account of the flow of the river. 
 I couldn’t tell what the average flow of the Arkansas river was at 
 Pueblo because I didn’t have the experience then that I have 
 now. I couldn’t answer as to the average flow of the Arkansas 
 river at Pueblo during the time I lived there, as I said before, be- 
 cause I didn’t have occasion to be on the river all the time. 
 
 2780 There was at the time I tried to get the water for the irrigating 
 ditch maybe from one hundred and fifty to two hundred feet 
 
 of water in the river. I don’t know that that amount would be the 
 average amount of water in the river during the time I lived there. 
 (Objection.) I have seen more water in the river at Pueblo than 
 there was at the time I just spoke of. Sometimes it would 
 last a week and sometimes longer. This was above the mouth of 
 the Fountain. It came down past Pueblo, but I couldn’t say that 
 it came past Canon City, because I wasn’t at Canon City. There 
 were lots of tributaries between Canon City and Pueblo to furnish 
 that water, and rain storms also. Rain storms are not as regular as 
 the flow of the river up there. I never knew the river to go dry at 
 Canon City. I have known it to go very nearly dry at Pueblo. The 
 first point down the river that I knew the river to go actually 
 
 2781 dry was down near what they call Coon Creek bottoms in 
 Kansas between Fort Larned and Fort Dodge. I think there 
 
 is more water flowing in the river in the State of Colorado at certain 
 seasons of the year than there is in the State of Kansas. As to 
 where that water goes to, I suppose some of it evaporates and some 
 of it goes down into the sand and makes what we call an underflow. 
 I suppose that underflow must have a current to some extent. It 
 would most likely have to have a current. It would back up if 
 there wasn’t a current. I can’t tell what the rate of the current 
 is down there. (Objection.) I think there must be a flow to it, and 
 that flow is down grade, I should think, and I shouldn’t think 
 
 2782 it would go out of the valley and go up over the hills. (Ob- 
 jection.) My opinion about it is that it must have gone down 
 
 2783 the valley of the Arkansas river. 1 think the conditions of 
 the Rio Grande valley are very much similar to the condi- 
 tions in the Arkansas valley, only I think in the Arkansas valley 
 the water is more confined than in the San Luis valley. I don’t 
 suppose there is any difference between seepage and return waters,, 
 and these terms are used synonymously. Water that flows on the 
 surface would hardly be seepage or return water. It is almost im- 
 possible to tell, when you turn water onto land for irrigation pur- 
 poses, how much of it evaporates and how much of it becomes return 
 water. In some places, such as hay land, only a small portion is. 
 
 wasted or evaporates, and on plowed or farm land the great- 
 2785 est portion of it goes into the ground. I have never had any 
 facilities to measure the water being turned out on a farm and 
 
THE STATE OF COLORADO ET AL. 807 
 
 how much of it is returned so that I could give an estimate of it. I 
 have not measured the flow that comes back into the river. 
 
 As to the place in the Rio Grande valley where there was one 
 hundred feet above and I was turning out three hundred feet below, 
 two hundred feet seeped in from the banks. (Objection.) The seep- 
 age water doesn’t pass through the ground very fast. Of course it 
 would be impossible for me to say what part of that water came 
 through the ground and how fast it would come through. 
 278(5 Some of this water that was coming down into the river again 
 was used early in the season. It passed through the ground 
 very slowly. It is impossible for me to tell, or for an}' other man, 
 I think, to tell how far it would get in a day of twenty-four hours. 
 There may be people who do know, but I do not. I will say this, 
 that water that has been used say in May in the upper part of the 
 valley will commence to come back into the river in July, thirty or 
 forty miles below. I should think it would go a mile a month, but 
 I wouldn’t think it would go twenty-five miles a month. At least it 
 is very slow. 
 
 Redirect examination. 
 
 By Mr. Hayt : 
 
 2787 As to the return waters that were heretofore spoken of by 
 me as being over two hundred cubic feet at a point below 
 when there was only one hundred cubic feet above, I did not mean 
 that the two hundred feet came from the one hundred feet that was 
 spread out on the laud above. I meant that it comes from water 
 that has been used early in the season and spread over the land 
 when there is a great deal more water in the river that has been 
 used on the land and sinks down into the gravel or sand and will 
 form an underflow. I have had as high as five thousand feet and 
 more at the measuring station. I have one canal that ran as high 
 as fourteen hundred feet and the return water of which I have 
 spoken comes from the general irrigation early in the year. In case 
 the water returning from irrigation reaches the stream and flows in 
 a body on the surface, I have no particular name for it except that 
 it is returned to the river. It is return water all the same, and if 
 this water seeps out after it has been spread upon the ground, into 
 arroyos, and forms running streams to the river, as I understand it, 
 that would be return waters. 
 
 2789 James Gallena, Denver, Colorado. 
 
 Direct examination. 
 
 By Mr. Hayt : 
 
 I reside in Denver. I have lived there since 1888, and my busi- 
 ness is contractor and plasterer. I formerly lived in the State of 
 Kansas. I came into Kansas in 1866 and left there in 1888. I 
 
80S 
 
 THE STATE OF KANSAS VS. 
 
 caine to the State of Kansas in 1866 to work for the Govern- 
 
 2790 ment at Fort Riley. I saw the Arkansas river in the latter 
 part of September, 1866. A party of us went down where 
 
 Wichita is now. There was a little settlement there on Chisholm 
 creek. There was no Wichita. We were after buffaloes, At that 
 time I was located at Junction City, about eighty-three miles, in a 
 direct line, from Wichita. It is pretty hard to locate the particular 
 part of the river where I was, but it was about four miles below 
 where the city of Wichita is. At that tinle we rode across the Ar- 
 kansas river half a dozen times between those two points and came 
 back the same way. The Indians were pretty bad, and we came 
 back the same way so as to strike into the settlements. We crossed 
 the river three miles below Wichita and came back the same way. 
 We forded the river. We passed above Wichita several seasons 
 afterwards. 
 
 When I first saw the Arkansas river in September, 1866, the 
 
 2791 water in it was not ud to the horses’ ankles — up to the horses’ 
 knees — in the deepest places. At the deepest place where we 
 
 crossed it it was not over three feet deep. The width of the river at 
 that point I should judge was about three hundred and fifty yards. 
 The stream of water, however, was probably two hundred yards 
 wide, and the banks were sloped on both sides. I saw the river 
 almost every year between 1866 and 1888, except the years 1871 and 
 1872. Sometimes in the spring there would be a flood there that 
 would float a battle ship, and then along in June it would begin to 
 go down and in July and August lots and lots of times at Wichita 
 and Hutchinson I walked dry shod across the river. Yes, in June 
 and July, both at Wichita and Hutchinson. I remember seeing the 
 river in 1884 right there at Wichita at that time. In 1884 at 
 Wichita there was a boom and everybody crowded down toward the 
 river for town lots, as far as they could go. In 1884 we didn’t have 
 much water there. We had no trouble in getting all the sand we 
 wanted out of the river at that time. Occasionally little flat-boats 
 would come down. I can’t remember or distinguish the month of 
 September in 1884 as to running water. In 1884 we didn’t have 
 excessive rains there. 1 know that we got sand right straight along 
 in 1884, with teams. We drove out into the river and loaded up. 
 The teamsters did that. There was no trouble to drive in and cross 
 the river. Yes, I remember 1887, but I wasn’t in Wichita then ; I 
 was in Hutchinson. I repeatedly forded the river in 1887. In that 
 year it was dry around Hutchinson and up above it, and in 
 2793 the fall of 1886-7 and winter I shot geese along the river. I 
 wintered at Hutchinson. During those years I was hunting 
 and passed up and down and across the river constant^. 
 
 I know where the Little Arkansas river enters into the Big Arkan- 
 sas river. It is just above Wichita, about a mile above. I remem- 
 ber that they had the smallpox at one time in Wichita, and down 
 below the bridge that goes over to West Wichita was what they 
 called an island. They established a smallpox pesthouse on that 
 
THE STATE OF COLORADO ET AL. 
 
 809 
 
 island and put a lot of smallpox patients in that pesthouse, but one 
 .night one of the inmates started out and walked across the river to 
 West Wichita. I think there was only about eight or nine 
 
 2794 inches of water in the river, to the best of my recollection. I 
 fished in the river there in 1886, and at one time I remember 
 
 that the stream was no wider than this desk here. I don’t suppose 
 it was over eight feet wide. Then the water came up during the 
 week and then it must have been about four or five feet deep. 
 
 2795 It went down in three or four days after that. That was in 
 the latter part of June and July, 1886. At Wichita the river 
 
 was just in the same condition in August, 1886. The point of which 
 I am speaking, where the water was so low, was below the Little 
 Arkansas river. I always supposed there was more water in the 
 Little Arkansas river than there was in the big one. I have seen it 
 when there was water in the Little Arkansas river and none 
 
 2796 to speak of in the Big Arkansas river. I saw the Big river 
 repeatedly below the mouth of the Little Arkansas river in 
 
 June, July and August, 1886, but I never saw any considerable 
 water in it at any time during those months other than the few 
 days I have mentioned as a time of freshets. We used to get most 
 of our sand from about three-quarters of a mile to a mile below the 
 mouth of the Little Arkansas river. I only went there once in a 
 while. 
 
 I have farmed in the State of Kansas off and on from 1869. I 
 have a place there yet, located eighteen miles south of Junction 
 City, in Morris county. I last lived on that farm in 1881. While 
 I was living in the vicinity of Wichita I became acquainted with a 
 good many farmers through the country and they depended on the 
 rainfall for the growing of crops. I never heard any of them claim 
 at that time that the crops were moistened by water from the 
 Arkansas river. I paid no attention to that. I never heard 
 
 2797 that subject discussed by them. There were a great many 
 droughts throughout that part of Kansas during the time I 
 
 lived there. There was a drought in 1866 when I came there, and 
 in 1874 and in 1875 there were grasshoppers. Those droughts had 
 the effect of burning up the crops. We had nothing. I noticed the 
 difference between the crops that we raised on the uplands and 
 those on the bottoms. The difference was that there was a crop in 
 the bottom if properly attended to and there was no crop on the 
 high prairie. There was a good, full crop down there in the bottom. 
 I had twenty acres of bottom land myself. I don’t know as I have 
 seen an entire failure of crops on the bottoms. We would have 
 something. After I got to Wichita I plastered a house in the 
 country three miles west of Wichita and they had a failure of crops 
 there — a failure of oats and a failure of corn. They were burned 
 up. This failure occurred on what I would call the bottom lands 
 there. I don’t know much about the difference between the 
 . 2798 bottom lands — as between those that are situated close to the 
 river and those half a mile away. My farming was all done 
 
810 
 
 THE STATE OF KANSAS Vs. 
 
 in Morris county. I know they usually had better crops on the 
 bottom lands around Wichita than we ever had in Morris county, 
 year in and year out. 
 
 Cross-examination. 
 
 By Mr. Ashbaugh: 
 
 I saw the river in 1866, three miles below Wichita, and I was re- 
 peatedly along the river in 1867, 1868 and 1869. We crossed the river 
 above Wichita in 1867. I went to Wichita in 1883, I think it was, 
 or 1884. My memory is pretty treacherous upon those dates. When 
 I was at Wichita in 1870 we were hunting buffaloes. I was 
 
 2799 at Wichita repeatedly between 1870 and 1883. I was not 
 therein 1871 nor in 1872. I was there the latter part of 
 
 1873. The river in 1873 was as dry as a board where we crossed, 
 about three miles below Wichita, the same place where we crossed in 
 1866. There was no bridge across the river at Douglas Ave. at that 
 time. There was a cattle trail. In the grasshopper year I was up 
 on the place. That year we crossed above Hutchinson. I was in 
 Morris county in 1875. I was not down in the Arkansas 
 
 2800 valley at all. In 1876 I was at home. I don’t think I was 
 at Wichita in 1876. In 1877 I think I went to the Arkansas 
 
 river. I am satisfied we did ; but it was above Wichita. In 1878 I 
 was along the river at Sterling. I don’t think I was at Wichita in 
 1878, but was at Wichita in 1879. It was not much of a town 
 
 2801 then. In 1879, oh, there were eight or nine or ten thousand 
 people there then. The bridge at that time had been built 
 
 across the river. I suppose it was made of wood ; I am not sure. 
 Dates and circumstances, I lose track of them. The river at Douglas 
 Ave. in Wichita in 1879 was about four hundred yards wide from 
 bank to bank. I can’t remember how much water there was in it 
 in 1879. It was probably knee-deep. We forded it. The place 
 where we forded it was right at Kincaid’s place. We didn’t ford it 
 at Douglas Ave. I am not certain about the bridge being a wooden 
 bridge, but I think the bridge was there at that time. I never saw 
 a ferry at Wichita. There was no ferry there at any time I was 
 ever there. I was never at Wichita in 1880. I think I was there in 
 1881. I can’t state what kind of a bridge was across the 
 
 2802 river then. I didn’t come to live at Wichita until 1884. 
 I lived in Wichita in 1884, 1885 and 1886, and in 1887 went 
 
 to Hutchinson. I lived there a year and then came out here. I 
 was contracting and plastering in Wichita. I worked for myself. 
 You have got me as to what buildings I built there. No prominent 
 buildings of any consequence, but mostly four and five room frame 
 houses. There was not a cellar that i know of in town. They 
 didn’t build cellars, because they struck water. The Citizens bank 
 had a kind of cellar on Douglas Ave. in Wichita, but had to pump 
 the water out every morning. As to how far down they would 
 have to go before they struck water, I put a pump down iu 
 
THE STATE OF COLORADO ET AL 
 
 811 
 
 the street at one place three and a half feet and struck water, about 
 five blocks back from the river, on the east side. It was 
 
 2803 about four blocks north of Douglas Ave. and north on Main 
 street but south of the Occidental hotel. The Occidental 
 hotel is the third block north of Douglas Ave. 
 
 2804 We got the sand for our plastering out of the river. 
 I never bothered about loading the sand myself; I had 
 
 a teamster for that business. We got it from the east side of 
 the river, the most convenient place we could get. He sometimes 
 would drive across the river and get it from the sand bars over to- 
 ward the west side. He waded across to those sand bars. I 
 don’t think there was any bridge across the river in 1873. Well, 
 you have got me again. I have forgotten now whether there was 
 or not. 
 
 2805 Examining Complainant’s Exhibit A-l, I will say that 
 picture looks like the bridge at Clark Kincaid’s place the last 
 
 time I crossed it there in 1886. It looks like that bridge. It don’t 
 look like the bridge at Douglas Ave. to me. I suppose it might be. 
 It could be anything. The Arkansas river has been at times that I 
 have seen it in such condition that that could be a picture 
 of it. There was a flood there in the spring of 1886, I think it was, 
 that came up pretty near touching the bridge. I think it did touch 
 the bridge, if I am not mistaken. That would be ten or eleven feet 
 up there, I should judge. Old Colonel Black’s place was right on 
 the bed of the Arkansas river near the bridge. He encroached on 
 the river and planted some cottonwood trees on the right side 
 
 2806 of this bridge. That could not have been the Douglas Ave. 
 bridge across the Arkansas river in 1886. I don’t think it 
 
 could. It don’t look to me that it could be a bridge eight hundred 
 feet wide and the river as shown in the picture eight hundred feet 
 wide in 1886. 
 
 Examining Complainant’s Exhibit A-2, I recognize that as the 
 Douglas Ave. bridge in 1886. I can’t guess as to the relative width 
 of the river. Probably a quarter of a mile — four hundred and 
 forty yards. 
 
 Complainant’s Exhibit A-2 shows the river at high water, 
 
 2807 as it looks to me. If Exhibit A-l is the Douglas Ave. bridge, 
 it looks to me as showing high water. I can’t tell from this 
 
 picture how far it is from the surface of the water up to the bridge. 
 (Objection.) I don’t know that Exhibit A-l is the old wooden 
 bridge at Douglas Ave. showing the water at a low state. It might 
 be, I suppose, but I don’t recognize it as that. It don’t look to me 
 like a correct picture of the Douglas Ave. bridge on the Arkansas 
 river at low water at any time before 1878. 
 
 Complainant’s Exhibit A-3 looks like the Fort Scott bridge. I 
 couldn’t say that it is the Douglas Ave. bridge at Wichita. 
 
 2808 It don’t look to me like any condition of the river or the 
 bridge that I ever saw at Wichita. I don’t remember that 
 
 Exhibit A-3, so far as 1 can recollect, would show the river at a 
 
812 
 
 THE STATE OF KANSAS VS. 
 
 medium low stage of water. I wouldn’t state that that could not be 
 a picture of the bridge across the Arkansas river at Wichita from 
 1879 to 1886 when I left there. Exhibit A-2 is the only bridge I 
 recognize. I should not call the water as shown in Exhibit A-2 as 
 either at a low or a high stage. I can’t tell anything by that 
 
 2809 picture how high it is. (Objection.) I can’t tell that the 
 water as shown in that picture is ten or twelve or fourteen 
 
 feet below the bridge. I guess, judging from that picture, that the 
 water could rise ten feet and not strike the bridge. I have seen the 
 river as shown in Exhibit A-2. I have seen it at high water and 
 low water and no water at all. I have seen the river at the Douglas 
 Ave. bridge with no water in it. As to how the water from the 
 Little Arkansas river got down the river if there was no 
 
 2810 water in the Arkansas river at the Douglas Ave, bridge, it 
 didn’t get down. Time and again we crossed the river right 
 
 there at Doc Black’s place and didn’t get our shoes wet. There was 
 always more water in the Little Arkansas river when there was no 
 water at all in the Big river. I don’t remember whether I ever saw 
 the Little Arkansas river when there was no running water in it or 
 not. I didn’t pay much attention to the water at that time. What 
 caused me to pay more attention to the water in the Arkansas river 
 was the sand question. I said there was always water in the Little 
 Arkansas river when there was no water to speak of in the Big Ar- 
 kansas river. 
 
 Redirect examination. 
 
 By Mr. Hayt : 
 
 2811 Yes, I recognize Exhibit A-2 as being the Douglas Ave. 
 bridge at Wichita. 
 
 Q. Is that a wooden or an iron bridge? 
 
 A. Yes, a wooden bridge, and this is a wooden foot-board right 
 along here. The frames and the uprights are all iron ; the floor is 
 wood. 
 
 I don’t know when the bridge was built. They repaired it in 
 1886 and 1887, and in 1886 this foot-path was put across here on the 
 side of the bridge. I think I crossed the bridge there in the ’70’s. I 
 know I did. It was the year after the Santa Fe railroad ran down 
 from Newton. 
 
 Yes, I stated that with good cultivation they could grow crops on 
 the bottom lands up to the river at Wichita, and that was true dur- 
 ing those dry years when there was no water in the river. 
 
 Recr oss-e x a m i n a ti o n . 
 
 By Mr. Ashbaugh : 
 
 2812 Yes, the bottom lands always produced good crops down 
 there during those years when the uplands didn’t always 
 
 have good crops. I couldn’t tell why it was. We had seasonable 
 
f THE STATE OF COLORADO KT At. 
 
 §13 
 
 fains then. I suppose the rains fell on the uplands, but the uplands 
 were further to water. I don’t know and I have not studied the 
 question as to whether the good crops were dependent on the near- 
 ness of the water in the ground, but this at least is true — that they 
 always have good crops on the bottom lands along the Arkansas 
 river. 
 
 As to an inmate of the pesthouse walking out one night down on 
 the island, I will say the island was on the west side and he walked 
 across there because the island is on the west side of the river. 
 
 2813 B. D. Spencer, Denver, Colorado. 
 
 Direct examination. 
 
 By Mr. Hayt : 
 
 I was seventy-five years of age last March, and have resided in 
 the State of Colorado fort} r -five and a half years. I have been en- 
 gaged in various occupations. I freighted on the plains in the early 
 days, was a merchant here in the early days, and have done mining 
 and contracting. At the present time I am really doing nothing. 
 I first settled in Denver. I was interested in the settlement busi- 
 ness at Fort Lyon, Colorado, when it was called Fort Breckenridge, 
 and the name was changed about that time. I was in partnership 
 there with a man named Windsor. I think I went there in 
 
 2814 about 1859. I came here in 1858 or 1859 and went right 
 down there, going there from Denver. I struck the Arkansas 
 
 river first at Pueblo and then followed the river down to Fort Lyon. 
 I made several trips from the latter part of 1860, 1 think, 1861, 1862 
 and 1863. I came from Salt Lake here about September, 1859, and 
 I went down and went into partnership with Mr. Windsor. That 
 was in 1859, in September. I was along the river repeatedly in 
 1860, 1861, 1862 and on up to 1864. In 1864 I sold out there and 
 was married up at Boone’s place, and then I came back to Denver. 
 There were only two irrigation ditches on the river below Pueblo, 
 between Pueblo and Fort Lyon, I think, at that time. A Mexican 
 first settled the town of Pueblo. His name was Juan Jacqui, 
 
 2815 “Littlejohn.” This ditch came out of the Fountain, and 1 
 think was one-half or three-quarters of a mile long, and it 
 
 ran down to the mouth of Fountain creek, and there was about sixty 
 or eighty acres of very low bottom land. I suppose the ditch was 
 four feet wide and two feet deep. The second ditch was taken out 
 by a man by the name of Joe Doyle, on the Huerfano, twenty-five 
 miles south of Pueblo. He had a large place beyond there at that 
 time. That was above the mouth of the Huerfano, about twenty- 
 five miles from Pueblo, and I saw it in 1859 and 1860, along there. 
 There was one ditch built between Pueblo and Fort Lyon a little 
 after that. I bought Doyle’s corn in 1860, a little Mexican corn 
 raised there. I hauled it to Fort Lyon and a man by the name of 
 
§14 
 
 THE stfATii 6 $ kAttsAS VS. 
 
 Hicklin lived on what is called the Green Horn. It is called Hick- 
 lin’s ranch yet, I guess. He took out a little ditch to raise 
 corn. His ditch was about a mile and a half long and about 
 four feet wide and a foot deep. The Doyle ditch was the 
 
 2816 biggest of all of them. That was, I guess, four or five feet 
 wide and twenty inches deep. The Arkansas in two of the 
 
 years, and it might be three, between 1859 and 1864, got quite dry 
 after you got below what was called the Big Timbers, below Fort 
 Lyon, in two of those years anyhow. In 1861 and 1862 the river 
 went dry. There was a flow of water until you got below the Big 
 Timbers, just as it is on the Platte here, a flow of water below Fre- 
 mont’s orchards, then after that until you passed the Big Timbers it 
 got dry. It did the same thing here. It was dry from about the 
 first of August until the last of September, about the time 1 was 
 passing over the road — that road sometimes and this one sometimes. 
 From about the first of August during all of September and tnaybe 
 into October. That was during the years 1860, 1861, 1862 and 1863, 
 up to 1864. I was married in 1864 and then sold out my interests 
 down there and left the Arkansas river and came to Denver. No, 
 in 1864 there was plenty of water in every part of the river I saw. 
 There was more rain. I don’t know as the river ran dry 
 
 2817 every year before that time. There was more water in 1860 
 than in 1861. The dry part of this period was in 1861, 1862 
 
 and 1863. That is my recollection. There was no water in the 
 river after you got below what we called Big Timbers then. They 
 are all cut away now, I suppose. I mean the river was dry, more so 
 in 1861 and 1862, and one could find no water in the river during 
 that dry time below the Big Timbers. There were not many people 
 around camping in those days, and the} 7 could find where the river 
 would wash out next to a bank somewhere, wash out the sand a 
 little more than at other places, and they would dig for water, and 
 in going down to the river you would always watch for the wagon 
 track going into the river. It would go to one of those places where 
 the seepage water was, Sometimes you would dig a little deeper 
 than others. Generally you would find a little seepage water in 
 those holes. There was no running water in the river, of course, 
 anywhere ; it was dry. Yes, we went below tbe point designated 
 as the Big Timbers. I am not very clear about that, because these 
 names on the map now were not the names used in those days. 
 They didn’t have many names on the streams or towns or settle- 
 ments in that country. I recollect I went below the Big 
 
 2818 Timbers at one time about fifty miles, following the trail 
 on down the river. That was the Santa Fe trail. There 
 
 was no other trail, much. I think it was maybe fifty or seventy- 
 five miles down below Big Timbers. That was in the year 1861, I 
 think, and the water got so scarce that we left the river and 
 struck off a little nearer road to Kansas City — a little nearer 
 trail — and left it on account of the water, and the first stream 
 we struck, I think, was the Little Arkansas, about ten or 
 
fHE STATE OF COLORADO JET AL. 
 
 816 
 
 fifteen miles from the mouth of that stream, and there we found 
 plenty of water. T guess that must be the Little Arkansas that 
 comes in near Wichita. Pawnee creek and the Little Arkansas — I 
 may have got them mixed. Maybe it was Pawnee creek we struck. 
 The Big Arkansas river was dry that year after we passed the Big 
 Timbers. I think we made this trip in August or September. I 
 had been down once before and back. You see I was getting some 
 corn out for the Government to Fort Lyon. They were out of corn 
 and I was skirmishing around up this way to get corn of Doyle and 
 those people. I got what they had ; they didn’t have much. Then 
 I had to get some corn quick and I was back and forth hurry- 
 
 2819 ing them up with the corn. That is why I made so many 
 trips. There was water in the river in May, June and July, 
 
 I think, in 1861. There was as far as Fort Lyon, but I don’t think 
 I was below there. We used to go in bathing at Fort Lyon. The 
 river was probably three hundred feet wide and an average, prob- 
 ably, of six inches deep up there. If you got below that the water 
 spread out more and was shallower. I have described it for you be- 
 low that point, but merely to give you an idea I said in some places 
 it looked like it was a mile wide and an inch deep, and I said that 
 to show it would be almost impossible to get the water in a ditch 
 down there. It can’t be done. You can’t make any dam that will 
 withstand these freshets you know. It is all quicksand. I don’t be- 
 lieve I could state the amount of water in 1861 in May and June 
 when the water commenced to go down and when the river first ran 
 dry that year. The conditions there with reference to water 
 
 2820 were about the same in 1862 as in 1861. Yes, just about. I 
 think there was a little more water in 1863, and there was 
 
 quite a plenty in 1864. The water commenced to run quite plenty 
 in the latter year. I left there that year and sold out. I sold out 
 in September and went up to Boone’s place. He lived up there 
 twenty miles below Pueblo, and I stayed around there I guess a 
 week or two and then came up here (Denver). I think the place 
 called Big Timbers is about fifty miles below the State line between 
 Kansas and Cororado. The timbers began right there at old Fort 
 Lyon and ran about fifty miles down the river. There had been 
 two Fort Lyons— one designated as Old Fort L}mn, and that is en- 
 tirely abandoned. Old Fort Lyon was just below the mouth of a 
 creek called the Big Sandy, coming from the north. New Fort Lyon 
 would now be right opposite Las Animas, right across the 
 
 2821 river from Las Animas. They were about five miles apart — 
 I mean the new Fort Lyon was five miles from Las Animas, 
 
 across the river. The old Fort Lyon would be twenty or twenty-five 
 miles farther down the river, I think. The new Fort Lyon is up 
 the river. I have not been familiar with the river to any extent 
 since 1864. I have only been to Pueblo you might say. 
 
816 
 
 the state oE Kansas VS. 
 
 Cross-examination. 
 
 By Mr. Asiibaugh: 
 
 The drought, as I suppose, was in 1861 and 1862, and may have 
 affected the rivers during those years and may have begun 
 
 2822 back in 1859 and lasted two or three years. There was less 
 water in the river for two hundred miles in the western part 
 
 of Kansas than there was through the part of Colorado east of the 
 mountains in those early days. A great deal of the water in that 
 stream in those early days was freshet water from the mountain 
 spouts and heavy snows in the mountains, and it ran down and we 
 had none left. That is the best answer I can give you. It was 
 freshet water strictly and just allowed to run wild. During the dry 
 season from 1859 to 1864 there was more water in the river in the 
 State of Colorado than there was in the river in the western part of 
 Kansas. I don’t know how to answer the question as to what caused 
 that difference in the amount of flow. In western Kansas there was 
 not a great deal to sink in the sand. It disappeared in the sand 
 after you got below Fort Lyon. What water was flowing visibly in 
 the river in Colorado during the dry seasons of the year would sink 
 into the sands as the flow passed down into Kansas. It would sink 
 into the sands, because you could dig and get it. I think that is 
 evidence that it sank into the sand. 
 
 2823 Redirect examination. 
 
 By Mr. Hayt: 
 
 There was considerable evaporation from the winds and the sun. 
 I don’t know that I saw the river for two hundred miles east of the 
 Colorado line, but about one hundred and fifty miles, and that was 
 on our trips from Fort Lyon to Kansas City. I went down the river 
 in 1861 and left the river to get camp water, and that was on 
 
 2824 the Pawnee or Little Arkansas, and we didn’t go back to the 
 Big river at all. We generally had freshets in May and they 
 
 would last about thirty days generally. We had ferries in Denver 
 across the Platte and right there at Cherry creek, for stage and other 
 purposes, along about that time. I have thought a good deal about 
 the water in the river since the irrigating in Colorado, and I believe 
 they have got reservoirs and ditches sufficient to take out this 
 freshet water that is going to waste and to impound it in reservoirs 
 and ditches and spread it over the country. It goes to the bed rock 
 and some of it I think takes a year to get back to the natural 
 stream. That equalizes the water in those rivers all through until 
 September and October and all through the winter. It may get 
 back in some places where it is steep in a month or two, and in other 
 places where it is flat it will take it a year to get back, some of their 
 water. Now, that is proven out here in what is called the broken 
 loop. There is a creek there that is dry, I know that. There was 
 never water in that creek until the English company built what is 
 
THE STATE OF COLORADO ET AL. 
 
 817 
 
 called the English Highline canal, and they irrigated at the head of 
 this creek and now there is plenty of water in it. There is water 
 taken out of that creek now all the time; they get it from this 
 English company’s canal all the year round. 
 
 2826 Colorado Springs, Colorado, December 12, 1904. 
 Bobert Finley, Colorado Springs, Colorado. 
 
 Direct examination. 
 
 By Mr. Dawson : 
 
 I am living at Colorado City, Colorado, and have lived in 
 
 2827 this country forty-four years past. I first saw the Arkansas 
 river in Kansas about the middle of May, 1860, when I was 
 
 coming out to this country on what was called the Kansas City and 
 Santa Fe wagon road. I think it struck the Arkansas about the Big 
 Bend. We followed that road out. 1 think it was somewhere near 
 where Great Bend in Kansas is now. We left Westport in Kansas 
 about the first of May and got here about the 16th of June, travel- 
 ling with ox teams. From that point where we struck the river we 
 followed it up to near Pueblo in Colorado. All I can recollect about 
 the river in the neighborhood of Great Bend is that when we came 
 out I herded cattle, just the same as the others. The cattle, when- 
 ever they were up the river, would go across on the opposite side. 
 There was no water in the river, only a little bit. Up at Fort Lyon 
 the cattle got in the habit of going across, and they got past 
 
 2828 me one night and jumped across the river. I had occasion 
 to cross the river on foot near Great Bend in bringing the 
 
 cattle over, and there was not sufficient water there to cause me any 
 inconvenience in wading. I couldn’t tell about how deep the river 
 was. All I remember is that little circumstance. It was very shal- 
 low. I couldn’t say how the water at Fort Lyon compared with 
 that at Great Bend. I know it was deep enough to swim cattle 
 over, that is all, in 1860. There appeared to be a great deal more, 
 but there were no rains that I know of while we were travelling 
 between the two places. 
 
 I have been living here forty-four years at Colorado City and 
 have been occasionally down the Fountain. I have been farming, 
 running a ranch and doing surveying, and have run out a 
 
 2829 great many ditches as civil engineer from the Fountain. 
 The Fountain heads in El Paso county, up here near Pike’s 
 
 peak. The main branch of the Fountain is around Pike’s peak 
 and runs from there nearly south — a little southeast — and empties 
 into the Arkansas river at Pueblo. I hardly think there would be 
 any difference in the permanency of the flow of water in the Fount- 
 ain in the early years and in later years, but I have not been down 
 there in the last seven or eight years. We have a great 
 
 2830 deal of water sometimes, and other years it is scarce. I don’t 
 know anything about it during the last season or in late 
 
 52—7 
 
81 8 
 
 THE STATE OP KANSAS VS. 
 
 years. I have never been very well acquainted with the lower 
 Fountain above Pueblo. I have never been down there but little 
 for a good many years and I have not had occasion to observe the 
 effect of irrigation upon the stream, in regard to seepage or return 
 waters. 
 
 Cross-examination. 
 
 By Mr. Ashbaugh : 
 
 We left Westport, near Kansas City, about the first of May, 1860, 
 and struck the river at Great Bend, and arrived at Pueblo on the 
 16th of June. We travelled with ox teams about ten or fifteen miles a 
 day. I don’t recollect how deep or wide the river was. I could 
 
 2831 not tell whether there was a great drought through that part 
 of the country. It was my first year in the country and I 
 
 don’t remember anything about the conditions. Up at Fort Lyon 
 a few of our cattle got away. A few of them plunged into the 
 river near Pueblo, and I noticed it made them swim and they swam 
 back to the same side they went in from. This was near Fort Lyon, 
 below Las Animas. 
 
 I am seventy-four years of age. 
 
 2832 Anthony Bott, Colorado Springs, Colorado. 
 
 Direct examination. 
 
 By Mr. Dawson : 
 
 I live at Colorado City, Colorado, and have been in this part of 
 the country since 1858. I first saw the Arkansas river in 1858, in 
 about the month of September, at a point we called the Great Bend 
 of the Arkansas at that time. I was travelling with ox teams and 
 we came up the Arkansas river to the Fountain here, and from 
 about Fountain City down here about fifteen miles below we went 
 north to Cherry creek and from there to the Platte river. There 
 was no flowing water in the Arkansas where we struck the river 
 near Great Bend, about either the first day or the second day 
 
 2833 in September, 1858. There were pools of water that you 
 could go around and cross the river dry shod. I couldn’t tell 
 
 how far up the stream that condition continued. I don’t know that 
 it continued for any great distance from there, from this time that 
 I remember that I crossed the river dry-footed. I think it was 
 about the noon camp. The cattle went down to drink at these 
 pools and I went down to get water for the camp and looked around 
 and of course I crossed the river. I crossed it dry-footed, with- 
 out wetting my feet. There was only these pools standing in 
 the river bed, pools of water that came up through the surface, 
 and 1 went around them in some places, and jumped over them. 
 The sand was exposed, in little ridges. Not much of ridges, but 
 enough so that the water came to the surface in places. The next 
 
THE STATE OE COLORADO ET AL. 
 
 819 
 
 that I remember where we got water again, there was flowing water 
 again above, especially when we got up to Bent’s old fort. I think 
 there there was a steady, flowing stream and lots of water. 
 2834 There was running water, considerable water, in the Arkan- 
 sas river from there, and there was some in the Fountain. 
 In 1864 I was with the Chivington expedition down the Arkansas. 
 Of course since that time I have passed up and down that railroad 
 a great many times. I don’t remember how far the expedition 
 went, but it was a considerable distance. Really, I don’t know how 
 far. I think at a point called Big Timbers. Perhaps we went down 
 farther. I am not clear bow far we did go down and crossed the 
 river. The Indians crossed it down there somewhere, and my im- 
 pression now is that it was at the point called Big Timbers, but we 
 didn’t go so far down as where we struck it in 1858, at the point we 
 called Great Bend. I think the Chivington expedition was near the 
 first of December. I don’t remember what day the battle was, but 
 I was in the battle; and from the battle grounds we started down 
 Sand creek and struck the Arkansas down there and followed the 
 Indians and finally after two or three days the Indians crossed the 
 river and scattered. I think there was water above in the river that 
 year. I don’t remember down there. I don’t remember that we 
 crossed the river there, but I think a lot of soldiers did cross the 
 river and follow the Indians. I have been acquainted with Fount- 
 ain creek during all of the years since 1858. There was no irriga- 
 tion on the Fountain at the time I first came here. Of course I 
 have lived most all of this time on the Fountain here and have 
 been engaged a good deal in farming twenty-five miles below here 
 on the Fountain. In the early days, about 1862 or 1863, I had a 
 claim on the Fountain about twenty-two or twenty-three 
 2536 miles below here near where the Woodbury ranch now is. I 
 farmed by irrigation. Most of the farming is done here 
 principally by irrigation. There is very little without it. I think 
 the irrigation has increased the flow of the water in the Fountain ; 
 that is, it has made a more permanent flow of water than there was 
 in the early days. Nobody can tell you now in what way the water 
 ran off or passed down the streams in the early days. The seasons 
 differ here. We have rainy seasons and dry seasons, and 
 they differ in time. We sometimes get early rains in the early 
 spring, and floods, and again we don’t get them until fall, 
 and some seasons we don’t get any. I think the water is 
 taken in by the soil we irrigate, and of course a good deal of it will 
 come out again. It will come out into the bed again some place, pos- 
 sibly near the farm, and I should judge in some places farther 
 away or at a distance away from the farm ; but I think most of this 
 water that we put on lands for farming purposes will find its way 
 into the creek bed again or into the channel, for instance, of the 
 Fountain here, and from the Fountain into the Arkansas. 
 2837 Putting it on the ground has a tendency to hold it back and 
 make it go off more slowly. Of course when there is water 
 
§20 
 
 THE STATE OF KANSAS VS. 
 
 in the streams the farmers can take water. When there is none 
 they can’t take any and distribute it over the land, but when there 
 is water in the streams, more or less, the ditches are running. When 
 they are taking water out in the ditches at the head of a stream or 
 at the upper end it causes springs along the stream, and of course 
 in that way there is water in the stream that would not be in it 
 were it not for the fact that there had been some farming done — 
 some water taken out and put on the land. For instance, I know 
 from experience on my land here at Colorado City I used to have a 
 big flow of water on that land for farming purposes, and also for hay 
 purposes finally, and I noticed that it caused springs to spring out 
 on the banks of the creek and from there into the main creek again. 
 Well, since I have quit farming that land extensively as I did then 
 I notice these springs have dried up again, and before I commenced 
 farming there there were no springs, and after I commenced 
 
 2838 farming and irrigating there were springs. I know this from 
 the wells I dug. I laid out a portion of the land into lots 
 
 finally, about ten or fifteen years ago, and sank wells over the land 
 for water purposes, and in the fall I would have plenty of water in 
 the wells, but during the winter I wouldn’t irrigate, or there was no 
 irrigating done any more, and in the spring I wouldn’t have mu°h 
 water in the wells from the fact that there had not been much 
 water on the land for a year or two. When I laid out the land of 
 course I didn’t irrigate it any more, and just before that my land 
 was all covered with — of course I irrigated the grass land, and I got 
 water in the boulders, that is, about twenty feet deep. I got water 
 very easily, and towards spring the water would drop again in the 
 boulders, because there hadn’t been any water on the land during 
 the winter. I have noticed the creek at a place where some ditch 
 had taken all of the water and then noticed the creek at some point 
 below, but I couldn’t give any particular point only as going 
 up and down the Fountain from here to Pueblo. I passed up and 
 down frequently in the summer time and in the summer of 1863 
 I was farming down there and everything was dry up and down the 
 Fountain. Since that time whenever I passed up and down I no- 
 ticed that there was more water, no matter how dry the season was — 
 that there was more water in the Fountain at that season than when 
 I was farming down there in 1863, in the dry seasons. I 
 
 2839 noticed pools of apparently flowing water in the Fountain 
 when I knew that season everything was dry down to Pueblo. 
 
 I think I have noticed where a ditch took all of the water out of the 
 creek and then see water at the head of other ditches miles below, 
 but I couldn’t give any particular point. I think that was the case 
 where I was in 1863 that parties had a little underflow of water in 
 the creek for their ditches. I was only told that. 1 didn’t see it. 
 
THE STATE OF COLORADO ET AL. 
 
 821 
 
 Cross-ex a m i n ati on . 
 
 By Mr. Ashbaugh : 
 
 The wells I spoke of were about twenty feet deep. Up this way 
 the water is flowing all the time in the Fountain when it is not 
 taken out by ditches. When it is taken out by ditches at times up 
 in my neighborhood here there is very little water in the 
 
 2840 creek sometimes. This is in July and September. The water 
 is all taken out of the Fountain now for irrigation purposes 
 
 except when the creek is unusually high. Of course there are times 
 when there are floods in the creek, when it could not be all taken 
 out, which would last some time. There are seasons like last sum- 
 mer (1904) that I guess there was water in the river all the way 
 down to Pueblo. The summer of 1904 was an unusually wet season. 
 I should judge that the normal flow of the Fountain through this 
 part of its course is practically all taken for irrigation purposes. 
 There is not water enough. I should judge there is not water 
 enough for the number of ditches there are. Along the upper part 
 of the Fountain they don’t get as much water as they can take or as 
 they need during the irrigation seasons. In the Fountain below here 
 there is not water enough during the average year. As far as I know, 
 there was not water enough when I was down there in 1863, when 
 there was very little farming done in the country. When I 
 
 2841 farmed in 1863 we didn’t have water enough in some parts 
 of the summer. We suffered somewhat for water. I think 
 
 there is more water now for the last ten years than there was for the 
 ten years of the ’70’s in the Fountain. 
 
 2842 There are lots of irrigating ditches on the Fountain between 
 here and Pueblo. Some seasons they don’t get enough water 
 
 during the irrigating season. The season of the year when I spoke 
 of the Arkansas river not having any flowing water iii it must have 
 been in the month of September. I don’t know how long that dry 
 condition existed. We only stayed there and came right along at 
 the rate of fifteen or twenty miles a day, you know. I don’t 
 
 2843 know how far it is from Great Bend to Fort Lyon. We must 
 have been on the river ten or twenty days. There was no 
 
 place on the river that we could not get water for our stock, because 
 at this point that I remember well of where I crossed the river dry- 
 footed there was water pools there where the cattle could get enough 
 water by scattering out. There was lots of water at Bent’s fort. 
 This water sank. It sank in going down. As it went down in the 
 bed of the river of course it got less and less. It sank in the sands. 
 And at this dry point where these pools were it would come to the 
 surface. I have noticed that in the Fountain here the water would 
 rise in the afternoon and there would be more water than in the 
 morning, from the fact that the water was held back in the night 
 time. As it comes down off the mountains here of course it 
 
 2844 was held back during the night time and came down in the 
 day time. That water must have melted during the day or 
 
822 
 
 THE STATE OF KANSAS VS. 
 
 melted in the morning. The supply of water of the Fountain all 
 comes off Pike’s peak in different branches or up Cheyenne creek 
 here. Yes, the uniform regular flow of the Fountain is all supplied 
 from the melting of snows on the mountains around here and from 
 the rains falling on the mountains, and this is supplemented by the 
 rain storms down here on the foot hills or the plains or the valleys. 
 The Fountain draws some water from the divide up near Palmer 
 lake as well as from Pike’s peak. 
 
 2845 Henry McAllister, Colorado Springs, Colorado. 
 
 Direct examination. 
 
 By Mr. Dawson : 
 
 I am living at Colorado Springs, Colorado, and have lived in this 
 part of the country since the tenth of April, 1872. About that time 
 I saw the Arkansas river first at Pueblo. I had seen it several 
 times below Pueblo, but not very far until the latter part of July, 
 1873. I was then down at a point about eleven miles east of the 
 mouth of the Las Animas river. That was some distance below old 
 Fort Lyon. At that time — I was nearby there three days and 
 crossed the river three times on foot. It was dry. On the south 
 side of the river where the sand was something lower than it was on 
 the north side, where the current had been just before it went dry, 
 the sand was moist or wet but there was no water running in it 
 when I was there. I did not at any time after that have occasion 
 or opportunity to observe the river that far east. I have been ac- 
 quainted with the Fountain for about thirty-two years, and 
 
 2846 have had occasion to observe the increase in the number of 
 ditches taken from the creek in that time and the quantity 
 
 of ground under irrigation now is larger than it was thirty-two 
 years ago Of course I knew nothing of the Fountain until early in 
 1872, but my experience has been that the flow of the water in 
 Fountain creek is larger during the summer season, and particularly 
 the late summer season, now, than it used to be before many of the 
 ditches that are now flowing were created. The flow is more regu- 
 lar and comes from a number of sources that were not known at 
 that time. I think the greater regularity is due to the distribution 
 of the waters on either side of the creek through the many irrigat- 
 ing ditches. It has greatly increased the seepage in many places. 
 For instance, when 1 came here in 1872 there was no water 
 flowing in the little stream along the eastern side of the 
 
 2847 town of Colorado Springs known as Shook’s run. At that, 
 time there was no running water in Shook’s run. After we 
 
 brought the water from the mountains or from Fountain creek near 
 the mountains by our canal — the El Paso canal — water commenced 
 running in Shook’s run and it has run in a considerable stream 
 ever since, winter and summer. The water brought in this canal 
 was used for the purpose of supplying this town with irrigating; 
 
THE STATE OF COLORADO ET AL. 
 
 823 
 
 water, and it practically supplied it also with water for drink- 
 ing and culinary purposes. We dug a large number of wells 
 on this town site in the latter part of 1871 and 1872 and found water 
 in none of them. We were upon the point of abandoning the site 
 as a site for a town when we turned the water into the canal that 
 supplied the town or that was to supply the town when the wells 
 that we had previously dug and that were dry filled up to the ex- 
 tent of several feet, and for several years we drew our water supply 
 from those wells. These wells were filled up from the sub- 
 
 2848 soil bottom and not from the top. They were filled from the 
 soaking of the soil. There was no water running into the 
 
 tops of the wells. When the water from this canal was distributed 
 over the town site of Colorado Springs for irrigating purposes the 
 natural slope or drainage was towards the east and the south. 
 Shook’s run lies along the eastern borders of the thickly built up 
 part of the town. It was formerly, prior to the time of the construc- 
 tion of this canal, known in this part of the country as a dry creek 
 or arroyo. The water running in that stream since the canal has 
 been used was only occasionally turned in from the surface, some- 
 times only once a year, where this ditch crossed it some two miles 
 above and ran around on the hill-side east of Shook’s run, but it 
 was very rarely turned into it directly. When it was not turned 
 into it directly it derived the water by seepage only, the banks in 
 many places being quagmires, as well as the land immediately south 
 of the town which it drained into the Fountain. The ground lying 
 immediately south of the town since the irrigation of lands has been 
 made wet and swampy where it was formerly as dry as a 
 
 2849 bone. This swampy land drains into the Fountain and 
 partly into Shook’s run, and Shook’s run empties into the 
 
 Fountain. I have one particular instance in mind showing the 
 effect of irrigation upon adjacent streams or draws. Until recently 
 I owned a ranch about two or two and a half miles southeast of 
 town on the Fountain. I moved there in 1888. At that time a 
 stream or a dry gulch ran through the farm which run water only 
 after a heavy rain. Two years after that the city impounded a part 
 of the water that was carried in a pipe from Bear creek, leading 
 from the lower part of the town, in a reservoir out on the hill east 
 of town, and in about two months after the reservoir was filled the 
 water commenced running on the surface down this creek that had 
 been formerly dry. The quantity of water increased and the whole 
 hillside on my place, half a mile to a mile below the reservoir, be- 
 came a quagmire, and the hillside yielded down toward the creek 
 and one could hear the water running out of the hillside at half a 
 mile distant, and that continued until it reached about five cubic 
 feet per second, and it continued that way until lately when the 
 city did something in the way of puddling the reservoir, and since 
 then the water has lessened in the creek, but it is still flowing in 
 considerable quantities. Until that puddling was done that 
 
 2850 creek became a considerable tributary to the Fountain. I 
 have had occasion to notice the flow of water in the lower 
 
824 
 
 THE STATE OF KANSAS VS. 
 
 Fountain south of Colorado Springs and to compare the volume of 
 water in late years with former years, and in my opinion the flow 
 of water during the summer months has increased. 
 
 Cross-exami n ati on . 
 
 By Mr. Ashrauoh • 
 
 The sources of the water of the Fountain during the early season 
 I should say were mostly from melting snows in the gulches and 
 ravines on the north side of Pike’s peak, and that is supplemented 
 later in the season by rains. The snow soon melts on the tributaries 
 of the Fountain creek. It does not run very far in the mountains 
 through any snowy country excepting the top of Pike’s peak, but as 
 the snows melt the waters go down and saturate the ground, and the 
 ground along the sources of the Monument keeps giving out water 
 from the melting snows that saturate the ground in that - way until 
 the later part of June and July when the heavy summer rains usually 
 commence. As to the average season for the melting of snows, 
 there is usually very little snow to be found after the 4th of 
 
 2851 July. The quantity of snow on Pike’s peak usually increases 
 until the middle of April. The snow on the mountains is 
 
 actively melting, I should say, for not over two months. But there 
 is a little snow melting at different times of the year. The greater 
 part of the snow melts in May, some melting in March and some in 
 February. When the water was taken out in the canals, or for city 
 purposes or for irrigation purposes below, that caused the flow of 
 water underneath the soil toward the outlet, and that has continued 
 in proportion to the amount of water that has been supplied 
 
 2852 on the upper lands. I think if the water of the Fountain 
 creek or in the Monument, one of its tributaries, was ail dis- 
 tributed in the winter and spring there would be an abundance of 
 water in the Fountain creek every summer to irrigate every acre of 
 land between here and its mouth. I think it would be practicable 
 from an engineering standpoint to store that water and finally dis- 
 tribute it in that way. Whether it would pay or not I do not know. 
 The water I spoke of coming into the wells came in about eight feet 
 deep in my well. If that water was withdrawn from the lands from 
 which it went into the wells, they would doubtless go dry again. 
 
 So when this water was put upon this land it supplied an 
 
 2853 underflow toward these streams and outlets ; but this water 
 of course did not come near enough to the surface to be of 
 
 any value for crops. I suppose it went down until it found either a 
 rock bottom or shale or clay or something that was solid enough to 
 make a bed for it to flow on. I have never had implicit faith in 
 the ability to hold back the waters of our mountain streams to any 
 great extent by means of reservoirs ; but that can be done to an ex- 
 tent considerably beyond what is being done now. But this whole 
 country is liable to water spouts that would be very likely to carry 
 cut any reservoir that might be built in the locality in which the 
 
THE STATIC OF COLORADO ET AL. 
 
 825 
 
 water spouts were. This, however, would of course go to the 
 
 2854 question of civil engineering. The main value of any reser- 
 voirs that I believe could be made would be in the seepage 
 
 of those reservoirs rather than the drawing of water directly from 
 them in ditches. 
 
 Old Fort Lyon on the Arkansas river was two or three miles north 
 of the river and ten or twelve miles west of the town of Las Animas. 
 When I saw the river below Fort Lyon I cannot now tell whether 
 there was any water in the river or not, but there was considerable 
 water in the river at Pueblo. There was no flowing water in the 
 Arkansas river near Fort Lyon where I crossed it. I think it had 
 gone down into the bed of the creek, into the sands. I can- 
 
 2855 not account for it in any other way. Then flowing on down 
 the valley again. When the water is put on land for irriga- 
 tion it is a difficult matter to say how much is lost through evapo- 
 ration, but I think when } t ou run water on land very little of that 
 water after it gets on the land is lost by evaporation. (Objection.) It 
 practically all goes down into the ground. The greatest amount of 
 evaporation is in June after it has been spread out upon the land. 
 I cannot tell what proportion finally gets back into the creek as 
 
 seepage. 'Of course it depends a good deal on the character 
 
 2856 of the ground, and possibly on the year, too. A great deal 
 more will evaporate in a hot, dry year than in a damp, cool 
 
 year. In some places and over some limited areas the seepage may 
 be very little or none, while in other places nearly all that you 
 run on the ground will seep off. This depends on how far from 
 the surface the impervious shale or clay may be. A fine, thick, 
 heavy adobe soil will have less seepage and more evaporation than 
 a sandy soil. But very little more evaporation, because those 
 who irrigate would not run so much water upon a heavy soil. The 
 longer it takes to seep away the longer it is there for evaporation, 
 but it don’t take it long to seep away. The water would not stay 
 upon the surface because the surface would be damp. The 
 
 2857 evaporation would go on all winter, for that matter, as the 
 water keeps coming up to the surface and evaporates. I can’t 
 
 give anything like an estimate of the amount of water that becomes 
 seepage and finally gets back into the creek in proportion to the 
 amount of water that was put on the soil for irrigation purposes, but 
 I should say that a vast majority of the water that is run on ground 
 goes down in the ground and comes out in the way of seepage some- 
 where. A great deal of it goes into plant life, and some evaporates. 
 I should say very much more than half of the water that is run on 
 ground in this part of the country comes out again. It goes down 
 into the ground into an impervious bed and comes out in the 
 
 2858 streams below — the natural drainage. (Objection.) I think 
 a good deal depends on the condition of the ground. If the 
 
 ground is ver} r dry most of the watm* that is run on in the first irri- 
 gation will stay there near the surface, but after the first irrigation 
 the drainage is very much greater and is very considerable. 
 
826 
 
 THE STATE OF KANSAS VS. 
 
 Redirect examination. 
 
 By Mr. Dawson : 
 
 The character of the soil along the Fountain is largely a sandy 
 loam, in some places very sandy or gravelly. (Objection.) In some 
 places along the first bottom of the Fountain creek below here the 
 gravel is very near the surface. There is a pitch everywhere toward 
 the stream. The drainage is toward the stream. The first bottom 
 would be nearly level in most places, but there is a second 
 
 2859 bottom upon which most of the crops grow, I think. The 
 second bottom pitches toward the Fountain and is more 
 
 gravelly than the first bottom, and in some places the seepage is so 
 great that it is not necessary to irrigate the low bottom at all. I 
 know of meadows that are not irrigated at all. That is where lands 
 lying above them are irrigated for other crops and the water seeps 
 from the upper levels to the lower meadows. The irrigated farms 
 along the Fountain, generally speaking, are very seldom a mile from 
 the creek, and are near to the stream. The Fountain drains no other 
 country except a limited basin bounded on the south side by Pike’s 
 peak, on the west by Hayden’s divide and on the north by the range 
 of mountains within sight. The source of the water of the Fountain 
 is quite limited. It drains the country which is commonly known 
 as the divide, on which is situated Palmer lake, Colorado, and 
 it drains that through its tributary, Monument creek, reaching 
 about twenty-five miles north of us; but most of that water, except- 
 ing in summer time after heavy rains, comes from the moun- 
 
 2860 tain tributaries west — the Monument and other streams. 
 It drains some country lying to the east of the stream 
 
 through two tributaries. The mountain drainage is very much 
 heavier than the drainage from other sources, excepting after heavy 
 local rains in the summer time when some of the eastern tributaries 
 of the Monument are in a flooded condition for a few hours only. 
 I allude only to that part of the Fountain and Monument above us 
 here and west of Colorado Springs. There is a good deal of the 
 drainage of the Fountain that lies south and east of here that is not 
 in the mountains. Some forty-five miles of it is on the creek. The 
 country called the Divide is a country of more rain in the summer 
 than we have here or south of us. It is one of the wettest countries 
 from rain that w e have in this part of Colorado. The rainfall up 
 there is sufficient to grow crops that w T ould dry out here in a very 
 few r weeks. 
 
 Recross-exam ina tion. 
 
 By Mr. Ashbaugh : 
 
 2861 The area of drainage, when estimated in square miles, does 
 not indicate in itself anything as to the amount of either snow 
 
 or water that falls upon it. If the waterfall was fifteen inches a 
 year, that would be fifteen inches all over that water-shed. It de- 
 
THE STATE OF COLORADO ET AL. 
 
 827 
 
 pends a good deal upon the character of the country. If the natural 
 fall of a square mile of land was very great, the water from a foot 
 of snow would run off very much quicker than if that ground was 
 level or nearly level. If one stream, for instance, had five miles of 
 a drainage area and another stream had twenty-five miles of a drain- 
 age area, that in itself does not indicate that the second one has five 
 times as much water to run off as the first, and particularly if one 
 originates in the mountains and the other in the plains. 
 
 2863 T. B. Pyles, Colorado Springs, Colorado. 
 
 Direct examination. 
 
 By Mr. Dawson : 
 
 I reside in Colorado Springs, Colorado, and at present am engaged 
 in publishing a newspaper and doing job printing. I have lived in 
 this locality about twelve }^ears. I resided in Kansas, at Garden 
 City, in 1887 to 1889, I think only two or three years at that place, 
 and during my residence there I observed the Arkansas river at 
 Garden City and down as far as Dodge City and west to the 
 
 2864 Colorado line frequently, and there was more water in it 
 sometimes than at others. I have seen the creek full to the 
 
 banks often, but ordinarily it ran pretty low throughout the summer 
 time — two inches deep and maybe a quarter of a mile wide — and 
 then later in the season it was practically dry. You could walk all 
 over it or across it. I have driven across it often. You could walk 
 across it. You might have to jump a little puddle now and then. 
 No running water. This would be through perhaps two or three 
 months in the summer. Maybe longer than that. And this con- 
 dition prevailed during each of the three years I was there. I think 
 I could not state as to the time of the year. Since living in Colorado 
 I have resided at this point for the last ten years. I was up in the 
 mountains a few years. I held the office of water commissioner for 
 six years here. Eight years ago next spring was my first appoint- 
 ment. Probably 1895, in April — 1895 or 1896 — and for 
 
 2865 six years thereafter. Mv duties as water commissioner took 
 me along the Fountain all the time in the summer. I covered 
 
 that stream to the Pueblo county line and about six miles into 
 Pueblo county, from here. That would be perhaps thirty-five or 
 forty miles of the stream, and then up the stream from Monument 
 creek to Palmer lake. That was the district. During the perform- 
 ance of my duties as water commissioner I have observed but made 
 no particular study of the subject of return waters, nor of measure- 
 ments. I can state the practical action as to the stream, illustrating 
 it, perhaps, best, in this regard : Number 6 ditch is one of the older 
 ditches right below town here and about four or five miles below 
 the city. It has a priority of thirty cubic second feet. It often takes all 
 the water in the stream when the stream is low. Within half a mile 
 below where this ditch takes all the water there would commence to 
 
828 
 
 THK STATIC OF KANSAS VS. 
 
 be running water in the stream; and about eight miles below is No. 5 
 and No. 8 ditches, close together. We have the decree of No. 5 — about 
 9 feet of water. At such times as I speak of when this No. 6 ditch 
 takes it all there would be perhaps five or six feet for No. 8 in addi- 
 tion to the decree for No. 5 — one half, perhaps. No. 5 would 
 
 2866 be taking about nine feet, I think. It is eight and a fraction. 
 Then there would be from five to ten feet for No. 8. There 
 
 were no tributaries in the way of natural streams coming in between 
 the point of the first ditch named and the two last ones. When I 
 speak of feet I mean cubic feet per second of time. In following 
 the creek I have noticed visible evidences of waters coining into 
 the creek from lands that were under irrigation. In going down 
 the stream the first one here opposite the Beaver ranch is No. 10 
 ditch, and No. 10 ditch is above No. 6. When they are irrigating, 
 and most of the time through the summer — because No. 10 runs 
 water all the time — there are four to six feet — four feet I have 
 measured — coming in at one place. That is, there is an old creek 
 bed comes around and all of the seepage water runs into this. 
 Seepage from the lands irrigated comes into this stream and comes 
 in a body there. At times I have measured four feet of water at 
 one place. That much was visible. And at another point, I sup- 
 pose it is six miles below that, there is water running into 
 
 2867 the stream, enough to be running from the ground, a distance 
 of thirty yards, perhaps, at one place, so that water crests 
 
 form there, and it takes running water to make that, along the bank. 
 From there down the stream along to the Pueblo line water comes 
 in in two places visibly. At the lower end of the county I have 
 seen more water at times, not all the time, than there was passing 
 here, — twice as much. But that would not prevail the season 
 through. We use the w T ater between here and the Pueblo line five 
 times, if there is water. In the later summer I think the flow is about 
 equal on the lower stream and the upper one. When there is more 
 water at the lower end it is probably a week or two or three weeks 
 after there have been heavy rains up here and the water has not only 
 run down — the creek will be down but the water on the land 
 
 2868 coming inis used up here. The taking out of water from the 
 river on the upper reaches of the stream and distributing it upon 
 
 the lands unquestionably increases the flow farther down the stream 
 later in the season. I got that by deduction, from the fact that at points 
 where there is no land irrigated along the stream where the water is 
 very low the stream is dry. There is dry sand. You could drive up 
 and down and across it. Opposite irrigated land usually at the lower 
 end of this irrigated land or just below it, there would be running 
 water in the creek again. To illustrate : In taking the water out for 
 No. 6, take it all and there is water enough for No. 5. No. 5 is below 
 No. 6. When we take it all out for No. 5 and adjacent meadows irri- 
 gated by No. 5, No. 19 ditch gets water at that time when No. 5 
 takes it all, and it is not over a mile and a half below, but it is di- 
 rectly opposite the meadows. And then the creek will be dry again 
 
THfi STAtE Otf COLOKADO fiiT At. 
 
 829 
 
 through a woods that must be three or four miles long, maybe 
 more. I mean the bottoms not irrigated. There is timber growing 
 on the bottom land. No. 19 I mentioned, I don’t know how else to 
 describe it. It is just below No. 5. It is meadow. It carries its 
 water three miles, I presume, before it is used, or two and a 
 
 2869 half miles. All along there the creek is dry. Opposite the 
 meadows irrigated by No. 19 is No. 13 ditch, and it has a 
 
 head of four or five feet of water. I have always supposed — and I 
 think it is right — that this water comes from the meadow that is ir- 
 rigated by No. 19. Not from the surface flow, however. But there 
 is a little strip of woods, perhaps a hundred yards wide, between the 
 meadow and the creek, and there is no water running over the sur- 
 face. It gets back to the creek by seepage, by a flow underneath 
 the surface. Below No. 13 the creek is dry again for two miles. 
 Just below the meadows irrigated by No. 13, No. 9 has a head of 
 water. There are a number of ditches between those two points 
 that get no water at all. The lands irrigated from the Fountain 
 and its tributaries are so situated that their drainage is back into 
 those tributaries, or the Fountain, and they are all close to it. I 
 think the extremity — the outer edge — of the farthest farm 
 
 2870 from the creek would not be over a mile or a mile and a half, 
 and most of them are within a mile. The outer edge of the 
 
 farm, I mean, where the ditches go out, often the inner line of the 
 irrigated land borders the creek. It comes right up to the creek, 
 many of them. Of course there is a little strip of woods perhaps 
 twenty or thirty yards wide. Most farms have that right along the 
 stream. 
 
 Cross-examination. 
 
 By Mr. Ashbaugh : 
 
 The sources of the waters of the Fountain are in the mountains 
 here — the drainage from the mountains. There is a little tributary 
 coming into the Fountain right here. It runs up to Palmer 
 lake. It is Monument creek. The sources of Monument creek 
 are the mountains on one side of the creek and a little val- 
 ley. It is not very wide, simply a narrow water shed. 
 
 2871 Palmer lake drains north and is right on the water shed. 
 The Monument reservoir is at Monument town, about a 
 
 mile this side of Palmer lake. It is supplied from Monument 
 creek, which is dammed and is supplied by the mountain drain- 
 age from Palmer lake down. The Monument reservoir 
 
 2872 opens right into pipes, and the overflow or spill-wa}^ goes into 
 Monument creek. When the water is taken out onto irri- 
 gated land I think it unquestionably comes back; otherwise we 
 would not know how to account for this water that continually comes 
 into the creek. I have never made an investigation of that fact. I 
 don’t think that it necessarily follows that the seepage goes to a bed 
 rock through which it cannot go, because the lay of the land would 
 
8S0 
 
 THE STATE OP KANSAS VS. 
 
 make it drain that way without reference to the bottom. I have 
 never investigated the question of the seepage having a current, but 
 it would have to move, certainly, and move down. I have 
 
 2873 no idea at what rate of speed. I could not even guess how long 
 it would take water put on irrigated land one mile back from 
 
 a stream to get back into the stream. I would assume that the water 
 would get back into the creek within six months here along 
 
 2874 the Fountain ; but that is only a guess. When we put water 
 on land along the Fountain, part of it evaporates, part goes 
 
 into plant life and part becomes seepage. I believe the absorption 
 by crops is greater than the evaporation. I couldn’t say what part, 
 however, went into each of these two items. It would be a guess. 
 I should think that more than one half of the water got back 
 
 2875 to the creek. That would be a pure guess. If thirty feet of 
 water was used in the upper ditch once it might be somewhere 
 
 near correct to say that one half of that evaporates and goes into 
 plant life, but I don’t know how to divide it from that on down, be- 
 cause all before this, as I told you, big ditches were irrigating on 
 both sides of the creek. We give to two ditches about ten miles be- 
 low there about twenty feet of water at such times, but I don’t 
 
 2876 know whether that is the same water or whether it comes 
 from other sources. I have said that we have water in the 
 
 creek. I say that at points on the creek it comes in. I said at that 
 time I did not know whether it was the same water or not. I don’t 
 know that the water that comes in below is the water that used to be 
 above, used for irrigation, and I don’t think anyone could know that. 
 The natural assumption is that it would be, there being no other 
 source of water. If I had to give an assumption also I think that 
 at least one half of it would get back; but that is purely 
 
 2877 speculation. If one half of the thirty feet used the first time 
 should get back there would be fifteen feet of that water; then 
 
 the second time we used it seven and one half feet would get back, 
 if you took that hypothesis, and the third time about three and 
 three-quarters feet, and each time we would use up one half of it in 
 evaporation and plant life. If you take that hypothesis it would be 
 true, but I don’t testify to that. If about one half of the water used 
 for irrigation is evaporated and used in plant life, and if we use this 
 water five times over, the fifth time there would be but very little of 
 the original thirty feet to be used, on that hypothesis. 
 
 2878 When I was in Garden City in 1887 to 1889, they were 
 using water for irrigation a little in the valley at Garden 
 
 City and up at Deerfield on the bottom lands. It was through the 
 summer time that I observed that the water was very low in the 
 river. I could not locate the months, but I think in July the water 
 was down. There was water in the river in the springtime, and it 
 was often bank full, and would be from four to five feet deep from 
 one bank to the other. 
 
THE STATE OE COEOEAEO ET At. 
 
 831 
 
 2879 Redirect examination. 
 
 By Mr. Dawson : 
 
 In saying there was a certain amount of water deemed seepage 
 in the lower reaches of the stream, I think it came from water used 
 earlier when all these great ditches irrigated their immense acreage 
 there. No. 29 ditch irrigates two thousand acres, I think, and they 
 use the most of the water early in the spring, commencing in March, 
 and that is when there is the most water in the creek, during the 
 early spring months, and it is then that these lands above are all 
 irrigated. I would not attribute the seepage or water returning in 
 the stream below the ditch all to the thirty feet then being taken 
 out because, as I stated at the time, about half a mile below 
 
 2880 the head of this No. 6 ditch there is water in the creek again, 
 and that water that was being taken out at that time was be- 
 ing carried a mile before it was turned loose. There is water above 
 any point where the No. 6 water is spread, but No. 10 laps onto that 
 and No. 29, the big ditch. 
 
 2881 A. Z. Sheldon, Colorado Springs, Colorado. 
 
 Direct examination. 
 
 By Mr. Dawson : 
 
 I live in Colorado City, Colorado, and have lived in this locality 
 nearly forty-five years. I was engaged in the business of surveyor 
 or civil engineer for forty years, about, and was only once on the 
 Arkansas river in Kansas. I think it was in the latter part of May, 
 1860, but I forget whether it was east or west of Walnut creek, but 
 my impression is it was west of that creek several miles, some dis- 
 tance west of the Big Bend. The condition of the Aakansas river 
 as to water at that time was quite disappointing to me. I expected 
 to find a live, flowing stream, instead of which I found abed of sand 
 with places where the water seemed to be flowing a little, but I 
 could walk across the river without getting into water at 
 
 2882 that time. I was only on the river a short time. We camped 
 some distance from it, and two or three of us went down to 
 
 get water for our cattle. It was only half an hour, not to exceed 
 that, on both visits. We followed the stream up along the old trail 
 or road, which rarely approached very nearly to the river. The 
 nearest point that I remember was at the Big Timbers. I don’t think 
 I went to the river on that occasion. I don’t think I saw the stream 
 until I got to Pueblo. That was about the 28th day of June, and I 
 found a nice stream of water there. There was apparently more 
 water there than at the stream where I first struck it. I 
 2283 meandered this stream for the Government in 1869, 1 should 
 think some thirty miles below Pueblo. I meandered the 
 stream nearly to the mouth of Sand creek, and platted a map of it. 
 
832 
 
 THE STATE OF KANSAS VS. 
 
 Sand creek is somewhere below Fort Lyon — below Las Animas. I 
 think it was sometime in the summer, about the last of June, that 
 I did this work. There was water enough then in the stream to 
 irrigate half of Kansas. It was high water over the banks. I at- 
 tributed this high water to the melting snows in the mountains. We 
 had several very heavy showers while I was there, but the body of 
 water in the stream was such that all we got from these showers 
 didn’t seem to affect it materially. The river, however, was an im- 
 mence body of water at that time. I had no knowledge of the rain- 
 fall farther west in Colorado or along the mountains. I think I had 
 finished up my work somewhere near the first of August. It 
 
 2884 was in the early part of June. 
 
 I have been familiar with Fountain creek for forty-five years, 
 I might say. I surveyed a large majority of the ditches on that 
 stream, and I farmed about thirty years along it, and I took water 
 from the Fountain. I made the Government surve} 7 of this country 
 between here and Pueblo in the summer of 1863, and during that 
 survey I found the lower part of the stream very much in the same 
 condition in which I found the Arkansas river in 1860. The lower 
 part was almost a continuous bed of sand, with an outflow of water 
 here and there. I remember particularly that I walked several 
 miles in the bed of the creek without moistening my boot soles with 
 water. I returned to Colorado City and measured the volume 
 
 2885 of water there and found 2,200 inches, running at the rate of 
 sixty feet per second, and I conjectured that the Fountain 
 
 was a sort of index to all other streams in this arid country in the 
 same conditions. In the course of my farming experience I observed 
 that about one-third to one-half a mile on my farms along the bluffs 
 adjacent to the stream there were springs flowing. Before intro- 
 ducing the water onto my ground those bluffs were as dry as the 
 grounds, and these springs would continue to flow after I had ceased 
 irrigation until late in the winter, and that excited my attention 
 and I commenced making observations generally until I became 
 fully satisfied that by pouring water into the ground we were con- 
 stituting a reservoir for supplying the stream. In fact I was 
 thoroughly convinced of that, so much so that at my own expense, 
 several miles east of here, having a successive number of sink holes, 
 I made a survey for a ditch through which to pour the water into 
 those sink holes when we were not using it for irrigation, and I 
 was fully satisfied it would afford a reservoir for the storage of water 
 during the following season; but for the want of necessary capital, 
 and a proper interest on the part of those interested in the 
 
 2886 matter, nothing was done towards such a consummation. I 
 don’t think I am prepared to testify definitely as to the flow 
 
 in the lower Fountain since irrigation has been generally practiced 
 above as compared to what it was before irrigation was largely prac- 
 ticed on the upper stream. I merely observed far enough to confirm 
 my theory that the water could be stored in the ground, and pro- 
 ceeded no further. Neither am I prepared to testify as a matter of 
 
TftE St ATE ot COLORADO ET AL. 
 
 833 
 
 direct observation wliat effect the irrigation of large tracts of land 
 adjacent to a stream would have upon the regulation of the flow of 
 that stream, if any. My observation would certainly confirm that 
 the taking out of large amounts of water when the stream was high 
 would affect the stream below when the water was naturally low in 
 the stream. I saw springs running from the banks adjacent 
 
 2887 to the stream, which were received by it, and the supply of 
 water would be enhanced to that extent. It depends entirely 
 
 upon the ground as to how long it takes for the water to return to 
 the stream. There are some formations through which the water 
 will find its way quite rapidly ; there are others in which it will be 
 retarded, and where in one case a month or six weeks would be suf- 
 ficient, it might take five or six months in another. 
 
 Cross-examination. 
 
 By Mr. Ashbaugh: 
 
 I saw the river down near Great Bend only once, and of course do 
 not know its condition at any other time. I know that during the 
 latter part of the year 1859 and during all of the year 1860 there 
 was a drought all over this part of the country. From 1859, 
 
 2888 I remember, to 1860, was a very dry year in Kansas. As 
 against that, before I reached the Arkansas river on this oc- 
 casion I encountered one of the heaviest rain storms I ever experi- 
 enced in my life. I meandered the stream down to Sand creek in 
 1869, beginning on the western boundary of the Indian reservation. 
 
 I estimated that to be about thirty miles below Pueblo, and 
 
 2889 I meandered the stream from this point to Sand creek. I 
 undertook to trace the boundary of the stream. Of course 
 
 the stream was devious in its course, and whe-ver I could find a line of 
 sufficient length along I surveyed that line. Where I could not I 
 would survey a base line and make offsets to the stream. Where 
 the bank was submerged or any object was available, instead of 
 measuring it, it being inaccessible, I would triangulate it and take 
 the distance. When the Indians were removed to that reservation 
 there was an allotment to certain half-breeds of a section of land to 
 each individual and I was designated to survey these lands 
 
 2890 along the margin of the stream. Of course that made it neces- 
 sary to meander the stream to get that part of the boundary 
 
 line. I surveyed these lands in 1869 for the Government and my 
 instructions came from the United States Government. To that ex- 
 tent I understand as a surveyor that the Arkansas river through 
 this part of Kansas is a meandered stream, and 1 understand what 
 surveyors mean by the term “ meandered stream.” The Arkansas 
 river through that part of Colorado is a meandered stream, so far 
 as territory is concerned. I suppose this is a matter of record with 
 the Government. Of course in all my surveys I made the ordinary 
 surveyor’s return to the proper Government officers. 
 
 53—7 
 
THE STATE OF KANSAS V8« 
 
 Examination by Mr. Campbell: 
 
 2891 The Indian reservation I spoke of was made for the Arap- 
 ahoe Indians in the early history of Colorado as a Territory. 
 
 I had special instructions with respect to surveying the lands in 
 that reservation along the Arkansas river and the meandering of 
 that river was in view of those special instructions. A surveyor, 
 under the general instructions given to United States Government 
 surveyors, has to make a note of the fact of his touching any point of 
 a stream, describe the stream at the point of touching it, and wher- 
 ever he touches or describes it he is required to describe the points 
 at which he reached the stream and the distance at which he left it. 
 This was a peculiar survey. In ordinary surveys, unless it is a nav- 
 igable stream or something of that kind, they are crossed, and the 
 Government sub-division is carried across. In this case a part of the 
 boundary line of the Territory was the stream itself, so that it be- 
 came necessary for me to meander it and describe it faith- 
 
 2892 fully. The meandering of a stream is not an object but 
 merely a necessary incident of the survey. That stream was 
 
 navigable when I meandered it. There was water enough there. I 
 have described the condition of the stream. But that was not its 
 normal condition. It was never considered navigable at the point 
 where I meandered it, in its normal condition. 
 
 2893 John R. Sitlington, Colorado Springs, Colorado. 
 
 Direct examination. 
 
 By Mr. Hayt : 
 
 I reside in Colorado Springs, Colorado, and have lived in El Paso 
 county about thirty -four or thirty -five years. I am sixty-five years 
 of age, and have been a stock raiser and farmer up until the pres- 
 ent time, when I am not doing anything. I am acquainted to a cer- 
 tain extent with the Arkansas river. I first saw it in 1870. I 
 
 2894 was with a herd of cattle coming from Missouri, driving them 
 to Colorado. I struck the river at the Great Bend of the 
 
 Arkansas and followed it from there up to Pueblo. I think that the 
 Great Bend referred to and the town of Great Bend are about one and 
 the tame place. It was the last of June or the first of July when I 
 made this trip. Iliad one hundred and fifty head of cattle of my own; 
 there was about a thousand head iu the bunch. I got to Chico basin 
 about the last days of August. Chico basin is fifteen or twenty miles 
 north of Pueblo. I was in sight of the river up from Great Bend 
 most of the way. We camped on it every night. Not every 
 
 2895 night, but we would be right on theriver. We watered thecattle 
 from the holes along the Arkansas river. Sometimes there would 
 
 be running water and again for miles there wouldn’t be any 
 in sight. There was a scarcity of water in the river. There was 
 not a great deal. Sometimes there would be for a mile or two at a 
 
THE STATE Otf COLORADO JiT AL. 
 
 835 
 
 time that there would not be any in sight, then there would be 
 holes where the current when the river was up had washed them. 
 There would be holes of water standing there. The farther up the 
 stream we got — when we got up about Fort Lyon and along through 
 that country there, and Rocky Ford, there was no water in the 
 river, but the farther up the stream we came the greater the supply. 
 It was some place through the section of the country around Rocky 
 Ford that the holes occurred in the river. There was con- 
 
 2896 siderable more water at Rocky Ford, and considerable more 
 at Las Animas even, than there was at Dodge City. We 
 
 made about eight to ten miles a day on that trip. I saw the river 
 in 1871 at about the same point. I was in the same business — 
 driving cattle. It was somewhere in July, I don’t remember 
 the dates, and we passed over practically the same ground. I made 
 the same trip right over the same ground in 1872 and found 
 
 2897 the conditions just about the same, and in about the same 
 months. We had no difficulty in finding water for the stock, 
 
 because we made it a point for some men to go ahead and hunt up 
 these places and have our regular camps picked out. We would 
 camp where there was the most water. We had quite a bunch of 
 cattle. I don’t know as it was quite an object for a person driving 
 cattle to find water, but we generally tried to find where the water 
 was running in the river. I have seen these dry stretches for a 
 mile or two where there would be no water on the surface at 
 
 2898 all. This was rather a frequent occurrence down on the 
 river. I didn’t notice any difference in the flow of the water 
 
 in the river with reference to the hours of the day or night. I have 
 seen the river frequently since that time as low down as the 
 state line. I have not been below the state line, only on the rail- 
 road, since then, but I have been that far frequently. I have farmed 
 on the Fountain. The first years were in 1885 and 1886. My ranch 
 was located sixteen miles south of here. I believe it was about 
 twenty-seven miles from Pueblo. I was stock raising at that time, 
 and farming, both. I lived there in 1885, then I was away for a 
 time, and in 1890 or 1891 I bought the farm and lived there for 
 ten or twelve years, up until last fall. 
 
 2899 We contend that we have more water in the Fountain the 
 last few years than we had previous to that time. I believe 
 
 that is true as a matter of fact. There is decidedly an increase in 
 the flow of the water, in the amount of it, in the creek. I 
 don’t know as I can give the dates in regard to when I first noticed 
 this, but it was a year or so after I bought the farm that I 
 could notice quite a difference in the amount of water in the creek 
 and it has been increasing from that time to this. I think 
 there has been a great deal of increase in the flow of the water. 
 
FflE STATE OF KANSAS V& 
 
 Cross-examination. 
 
 By Mr. Ashbaugh : 
 
 2900 I don’t know that there has. been any decrease in the snow 
 fall in these later years. We have had but very little snow 
 
 fall here in the late years from some cause or other, but I don’t know 
 whether it is decreasing or not. 
 
 I came up the Arkansas river on three different occasions along 
 the Santa Fe trail, but whether the Santa Fe trail runs down 
 
 2901 to Kinsley or not, I can’t say. I don’t know where Kinsley 
 is. In our cattle driving I didn’t follow the old Santa Fe 
 
 trail. I couldn’t tell anything about that. The country was not 
 settled up and there was nobody living in the country and I went 
 where I pleased. That was the most convenient time in the 
 
 2902 year to drive our cattle through. I did find high water in the 
 river during my trips down there, but I don’t know whether 
 
 there was any high water in the river at any time during the year. 
 I didn’t see any. We were on the river about two months a year. 
 There might have been high water during the ten months and 
 we not see it. I don’t know as to the condition of the river 
 
 2903 at other times than during the two months when we were on 
 the river with our cattle. I have heard this contention — 
 
 that there was more water in the Fountain for eight or ten years. 
 Two reasons are given that I know for more water being 
 
 2904 in the Fountain. One of them is the irrigation and the other 
 is that the water is being stored above and held back. I 
 
 couldn’t answer the question as to what proportion of the water that 
 is used for irrigation becomes seepage water and gets back into the 
 river again. 
 
 2905 Thomas Shidelar, Colorado Springs, Colorado. 
 
 Direct examination. 
 
 By Mr. Hayt: 
 
 I reside at Colorado Springs, and have lived in El Paso county 
 about thirty-five years. I am seventy-one years of age and most of 
 this time has been spent in office work. I have been justice of the 
 peace here, police magistrate, and water commissioner. I was water 
 commissioner of district No. 10 for six years, from 1886 to 1892. 
 El Paso county was embraced in this water district. My duty 
 was to distribute the water to the ranchmen according 
 
 2906 to their priorities. I was familiar with the Fountain in 
 the early 7 70’s — 1871 and 1872. I have been over it several 
 
 times from here to Pueblo. 1 was not so familiar with it from 1871 
 to 1885. About 1870 and 1871 I was most familiar with it, and 
 very little after 1871 and prior to 1885. I don’t think I was along 
 the river during those 3 7 ears. I have been pretty familiar with it 
 
THE STATE OF COLORADO ET AL. 
 
 837 
 
 since 1892. From 1885 to 1892 I was very familiar with it. Tsaw 
 it pretty nearly every day in the summer season from March 
 
 2907 to September. My duties required me to go up and down 
 the river nearly every day. I travelled over the entire 
 
 reaches of the river in El Paso county during those years frequently, 
 from Palmer lake to the county line south and up the Ute pass to 
 Woodland park and the lake. There has been a good deal more 
 water in the Fountain river during the last years than there was 
 during the first. I noticed this increase first after Colorado Springs 
 was located and they got to irrigating here. I think that was in 
 1871, but the flow did not increase for several years after that. 
 They didn’t irrigate a great deal at the beginning. The flow has 
 increased — take it from 1888 and from that time on — every year 
 more or less. I attribute this to the ditches being taken out along 
 the creek, and the irrigation. The water taken out in these ditches 
 goes back to the river underground. It is what is commonly known 
 as return water. 
 
 2908 Cross-examination. 
 
 By Mr. Ashbaugh : 
 
 I don’t think that all of the water that is taken out for irrigation 
 becomes seepage water and flows back into the creek. Part of it, of 
 course, goes into evaporation. There is not as much gets back into 
 the creek as there is taken out. I know that a good deal of 
 
 2909 water must evaporate in the use by irrigation and be taken 
 into plant life. If a plant were plowed under ground, 
 
 then some of the water taken into that plant might get back. Some 
 of it. The plant before it was plowed under might become dry or 
 it might not. If it was plowed under to manure the ground it 
 would be dry. The amount of water taken into the plant comes 
 nearer being evaporation than seepage water. I don’t think the 
 water would be destroyed. It would go some place; I know that. 
 
 2911 Canon City, Colorado, December 13, 1904. 
 Dall De Weese, Canon City, Colorado. 
 
 Direct examination. 
 
 By Mr. Dawson : 
 
 I reside in the suburbs of Canon Cit} T at this time and have lived 
 in this general part of the country about twenty years. I 
 
 2912 have been engaged principally in constructing irrigation 
 canals and ditches and in reclaiming land and planting it to 
 
 orchards in this vicinity and in Garfield county, and for the twenty 
 years I have taken a general interest in irrigation matters and the 
 reclamation of land by irrigation, in fact I have done nothing else. 
 Lincoln park is in the neighborhood of Canon City and on the 
 
838 
 
 THE STATE OF KANSAS VS. 
 
 south side of the Arkansas river, and before it was put under irri- 
 gation it was known as a mesa, covered with cactus and sage brush, 
 and was flat. There were no crops raised by cultivation grown 
 upon it prior to irrigation. It is not possible to raise any 
 
 2913 crops successfully in that locality without irrigation. I built 
 the extension of the South Canon ditch from the top of the 
 
 hill on to the southeast; then I was the builder of the De Weese 
 ditch and reservoir company’s ditch, and have reclaimed some 
 eighteen hundred acres in Lincoln park. Ninety per cent, of this is 
 orchard and ten per cent, alfalfa, and it has been about eighteen years 
 since the first of it was reclaimed, and it has been four or five years 
 since the last of it was gotten into crops ; that is a very small per 
 cent, of it. Lincoln park lies about one hundred and twenty feet 
 above the river. The break-off' from Lincoln park is very abrupt. 
 The soil is from eight to sixteen feet deep ; then comes a 
 
 2914 gravelly stratum of twenty to thirty feet, and from that on to 
 a shale. The break off is commonly called a bluff. It is very 
 
 steep and straight-off. There are three gulches or arroyos running 
 through this land, to the south and east of a good portion of that 
 brought under irrigation, and I remember in 1885 when I built my 
 house and corrals, at the lower end of the park half a mile above 
 the lower end of this first gulch through the canon, I noticed in 
 February the ground would be a little moist in one place or two and 
 I thought it might be possible for me to get stock water there. As 
 it was, I had to build a cistern up at the house and had been water- 
 ing my stock there. There was a gentleman living next place 
 to me that had about ten acres — Elliott McRae of Cripple 
 
 2915 Creek. I suggested that we dig a well there. We started 
 to dig and went only two and a half to three feet and 
 
 had water, so we put in a barrel and used that for stock water. 
 We would turn about and go down and dip the water out for them 
 that winter. That was in the winter of 1884-5. I came there in the 
 spring of 1884. That same season I extended the ditch to within 
 half a mile of this spring as we called it, and the next season the 
 water ran out of this barrel, one year after the time we first set it 
 out. When we extended the ditch we placed lands lying immedi- 
 ately higher than the spring under irrigation — higher by half a 
 mile. The ditch was half a mile up the hill from this barrel. 
 Within four years there was at least from one to two cubic feet of 
 water per second running from that spring. During the last four or 
 five years there has been from three to five cubic feet of water run- 
 ning in it, in fact I had surveyed it in and have worked hard to try 
 to work that water out on some land, but the land was rough and 
 broken and it would have to go through a sand and gravel stratum 
 for two or three miles and it would necessitate the cementing or lin- 
 ing of the ditch and fluming it, so I didn’t think it was prac- 
 2918 ticable. There have been two parties living on the bank of 
 the river just under this mesa, lower down, that have had a 
 ditch out of the Arkansas river four or five years. They have aban- 
 
THIS STATE OF COLORADO ET AL. 
 
 839 
 
 doned that almost entirely, doing nothing other than just to keep it 
 open a little to claim their rights in the stream and have appropri- 
 ated and used this water out of this spring gulch on their lands, that 
 is, in the first gulch. The flow from it has been constant and does 
 not stop in the winter. It seems to run more the first two or three 
 months after the ditches are shut down, that is to say, in November, 
 December and January. This water from the irrigated lands goes 
 under ground. There is no stream, no irrigation ditch heads iuto 
 that to cause the water to run from that particular point. It 
 
 2917 is simply sub-irrigation. There never was any flowing stream 
 in this gulch to my knowledge prior to the time of irrigating 
 
 this land. The other gulch is over in what is called Davison’s 
 gulch, half or three-quarters of a mile farther to the southeast. It 
 comes out of the little foothills over near the Brookside shaft. I 
 never saw any water running there myself prior to this irrigation. 
 In the gulch I have just described I didn’t see it before the lands 
 were put under irrigation. I know it was not a regularly flowing 
 stream before the time of beginning irrigation. There is now 
 
 2918 there from two to three cubic feet of water in that gulch, 
 flowing regularly. The lands which are irrigated and which 
 
 would naturally drain toward this gulch come right up to it, in fact 
 this De Weese ditch terminates now at this gulch. The water is not 
 carried over the surface. Allow me to explain there : This might be 
 something that would give the wrong impression. I don’t mean 
 that the terminus of this ditch has been at the head of this gulch 
 all these years. It was never extended there until two years ago, 
 because we would have absorbed and used all of the water in the 
 ditch before any could get to the end of it. The water that has ap- 
 peared of late years in this last gulch has reached there b}^ percola- 
 tion through the soil. There are no other gulches that show the 
 effect of irrigation, but I can say that all along this break-off 
 
 2919 or bluff from fifty to eighty feet below the crest line or top of 
 it there are little springs coming out in intervals of a hun- 
 dred or two hundred yards, but they didn’t exist prior to the irriga- 
 tion of the uplands. And there are no sources of supply so far as I 
 can determine for the water which of late years has been running 
 in these gulches and coming out along this river bluff other than 
 the irrigation of the lands lying above, and this seepage water finally 
 reaches the Arkansas river. This observation has been general as 
 to the effect of irrigation. I can say that I have seen the same thing 
 in Delta, Montrose and Garfield counties. In Garfield county where 
 
 I have just completed the other ditch we have the same con- 
 
 2920 dition. Taking it by the year, and one year with another 
 for a series of years, I would think there would be a depre- 
 ciation of probably thirty per cent, of the volume of water in the 
 stream, but it would cause a more regular flow. That is to say, for 
 reasons I have just explained awhile ago, by irrigating this mesa 
 land in the summer this water in the gulches continues to run all 
 winter and imparts water to the Arkansas river again which, if it 
 
840 
 
 THE STATE OF KANSAS VS. 
 
 had been used on these lands, would have gone down the river in 
 the flood times. The use of water copiously in the early spring 
 upon the land has a regulating effect upon the stream. I 
 
 2921 have seen all of our irrigated lands in the United States. I 
 have travelled these States and Territories over for twenty- 
 
 five years. I have seen it in India, in Egypt, in China and in Japan, 
 and without irrigation none of them would have anything. That 
 is about what it comes to. Irrigated land is more productive per 
 acre, that is, well irrigated lands with an adequate water sup- 
 ply, because the moisture can be regulated. I know that is 
 the case particularly in the foreign countries, in the Orient, 
 where they understand irrigation. We are not in the alphabet 
 in irrigation. We don’t know anything about it compared with 
 China and Japan ; and I saw evidences there, when it comes to 
 the construction of dams and ditches and reservoirs for the storage 
 of water, that would make an American want to get a flying ship 
 and get home to pick up some of these snaps that there might 
 
 2922 be over the country here when we see what they have done 
 to reclaim arid lands and make them productive. There is 
 
 no question but that in the arid regions of those older countries 
 where the land is properly irrigated they support a much larger 
 population per acre than in almost any other region in the world. 
 From my practical experience and observation in regard to irriga- 
 tion matters, as to the effect upon the arid portions of the United 
 States if a doctrine were established which prohibited the use of any 
 waters for irrigation upon those regions, the first year there would 
 be a loss of about fifty per cent, the second year seventy-five 
 
 2923 per cent, and about the third year it would wipe us out — ruin 
 us. If irrigation were prohibited here the irrigated region 
 
 would revert back to a worse condition than it was in before it was 
 commenced, and it would only be good for a stock ranch. You 
 might put a fence around Colorado and call it a stock ranch, or any 
 other State. The irrigated lands I have spoken of in Lincoln park 
 and on the north side of the river near Canon City where planted 
 to orchards at the present time are worth on an average of $500 an 
 acre, owing to the condition of the orchard. Orchard lands have 
 paid ten to fifteen per cent, on the investment ; that is to say, orchard 
 laud here eight to ten years planted will net from, $80 to $100 an 
 acre. It has done it under good management. This is for an 
 
 2924 average of years. That is, for orchards of that age. Special 
 yields in particular years have reached to the extent of $300, 
 
 $500 and $600 an acre in the extremes under good management 
 and under the best conditions. None of this orchard land can be 
 successfully farmed without irrigation. All of the shade trees and 
 all manner of vegetation in the town of Canon City is kept alive by 
 irrigation — by ditches along the sides of the rows and water kept 
 running in the summer. The trees would not continue to live only 
 along the river bank without it. We have evidence of that all 
 throughout this entire arid country. Before the settlers came and 
 
THE STATE OF COLORADO ET AL. 
 
 841 
 
 before the water was taken out in ditches for irrigation there were 
 no domestic trees such as the cottonwood or cherry or the maple or 
 the box elder and locust — which are the only varieties of eastern 
 domestic trees that grow here naturally — aside from the conifers, 
 that is, the pines and evergreens. They grew here from the earliest 
 times. If it had been possible for others we would have had 
 
 2925 them growing here. There is no agriculture possible with- 
 out irrigation, and the land is worth only from $1.50 to $12, 
 
 owing to the proximity of the land to a man’s house and barn, 
 where he would want to fence them in for the little grass that grows 
 naturally or for the gramma. 
 
 Cross-examination. 
 
 Bv Mr. Ashbaugh: 
 
 This land through here back to the mountains or foot hills before 
 irrigation is what we call arid lands, and this extended down 
 
 2926 to the edge of the river. The cactus and sage brush I spoke 
 of originally extended down to the river bank. 
 
 I am not prepared to say what the average flow of the Arkansas 
 river through Canon City is for the last fifteen years. The source 
 of the Arkansas river is to the northwest of here, in the mountains, 
 and in the mountain streams about the Sangre de Christo range. 
 Above Canon City irrigation is continued to within five miles of 
 Leadville and extends back from the river from half a mile to four 
 miles on either bank. I should judge that when water has been 
 put upon the land for irrigation from twenty-five to thirty 
 
 2927 per cent, of it becomes seepage and finally returns to the 
 river. Some canals run back to a distance of five miles from 
 
 the river. I should think that water that was spread upon the land 
 for irrigation back five miles from the river would reach the river 
 again in from one to five years. It might go a mile a year, depend- 
 ing largely on the conditions underneath. In gravel it would be 
 more rapid than in clayish soils or shales. In shale it might take 
 it ten years. I think a mile a year would be reasonably high for 
 the rapidity of the flow. I do not believe this flow is as rapid on the 
 north side of the river as on the south side of the river where 
 
 2928 there is adobe land for it to go through. The loss that is 
 occasioned is caused by evaporation and the absorption by 
 
 vegetation in plant life, and the seventy-five per cent, would be used 
 up in the soil and by vegetation and evaporation. Evaporation is 
 quite rapid sometimes, particularly below five thousand feet where 
 the sun is hotter and there is more wind. This also depends a 
 good deal upon the land. The heavier adobe lands have greater 
 evaporation than lighter, sandy land. Sandy soil retains the moist- 
 ure longer than other soils. A long, dry season with bright 
 
 2929 sunlight will evaporate more than a short, wet season with 
 fog. Nobody is able to state the exact percentage of 
 
 water that is lost, and this amount cannot be determined with 
 
842 
 
 THE STATE OF KANSAS VS. 
 
 positive accuracy, and it must rest in the judgment of the 
 best experienced men and of the longest and keenest observation. 
 1 think there is as much as thirty thousand acres of land here that 
 is worth $500 an acre. This is in bearing orchards and they are 
 from five to twenty-five times more profitable than agricultural lands. 
 Small fruits are very profitable here. Strawberries and raspberries 
 are the best small fruits. There are a few acres here confined en- 
 tirely to the strawberry culture. We plant our land here to orchards 
 with the rows about two rods apart, and while the trees are young 
 they grow strawberries and vegetables and small fruits in be- 
 2931 tween until such time as the orchards are from eight to ten 
 years old and in bearing. We have been able to develop 
 alfalfa here to the extent of five tons to the acre for three cuttings in 
 a season, which is worth on an average from $5 to $7 per ton in the 
 field and from $8 to $10 delivered. With the three cuttings I don’t 
 include a seed crop. I think irrigation is indispensable everywhere 
 where it is an arid country. It is just as important for others to 
 have water, however they use it, as for us to have water as we use 
 it. Of course crops can be raised in Ohio without irrigation, but 
 you can’t raise anything without water anywhere. 
 
 Examination by Mr. Campbell: 
 
 2933 Yes, I said that irrigation in this country was in an im- 
 perfect state in comparison with its development in Egypt 
 
 and China. In India they haven’t got as far along as we have. It 
 is a fact that improvements and progress are being made every year 
 in irrigation in this country, and the duty of water is increasing 
 every year here. If irrigation had progressed to the same point in 
 this country that it has in those countries mentioned the increase in 
 percentage of lands that could be irrigated with the amount of water 
 we now use would be about sixty per cent., I think. It is possible 
 to develop irrigation systems in a limited territory in this country 
 to reach that stage of perfection that exists in Egypt and China. It 
 would never be extended as they are, because we haven’t the water 
 supply. 
 
 I don’t know* what the assessed valuation of this (Fremont) 
 
 2934 county is. Assuming it to be over six millions of dollars, 
 about eighty per cent, of this valuation has been created by 
 
 and is dependent upon irrigation, and were it not for irrigation this 
 would be valueless in three years, that is, from an agricultural and 
 horticultural standpoint. 
 
 Redirect examination. 
 
 By Mr. Dawson : 
 
 2935 There are some six thousand acres of land under irrigation 
 around in the little valley immediately surrounding Canon 
 
 City. Canon City and South Canon and the immediate suburbs 
 
THE STATE OF COLORADO ET AL. 
 
 843 
 
 within a two mile limit from the postoffice contain about ten thou- 
 sand inhabitants, and in my judgment about ninety-eight per cent, 
 of this number are dependent upon this irrigated district around 
 Canon City. 
 
 Recross-exam i nation. 
 
 By Mr. Ashbaugh: 
 
 We do not count the mines of very much value in this immediate 
 vicinity, because we haven’t any. We have some valuable mines 
 here, and if they should be sustained and there was no irrigation 
 the supplies would have to be brought in here. There is nothing 
 that is paying here in the way of mines, other than the coal 
 
 2936 mines, within thirty miles of us. These coal mines have 
 their own towns and stores about the mines and are not de- 
 pendent on Canon City. 
 
 Examination by Mr. Campbell : 
 
 Yes, I testified in respect to evaporation, and in that connection 
 stated that it depended upon the soil and winds and one thing and 
 another. This evaporation depends to a large extent upon the time 
 when the water is used. For instance, if you irrigate a piece of 
 land in the middle of the day when the soil is hot and parched and 
 the water warm the evaporation would be greater than if you took 
 it out earlier in the morning or at night and applied it to the soil 
 when it was cool. I am not prepared to say what the difference in 
 percentage would be. Within the vicinity of eight or ten miles of 
 Canon City there is nearly half a million dollars invested in 
 
 2937 irrigation plants exclusively. 
 
 2938 C. J. Frederickson, Canon City, Colorado. 
 
 Direct examination. 
 
 By Mr. Dawson : 
 
 I live in Canon CHy, and am the county treasurer of this county. 
 I formerly lived in Kansas. 
 
 The assessed valuation of Fremont county, in which Canon City 
 is located, for the present year, 1904, is $6,492,744. I just took it off 
 my records. And this valuation is supposed to be one-third of the 
 actual value, and I think from mv own observation and knowledge 
 that that is true. 
 
844 
 
 THE STATE OF KANSAS VS. 
 
 2939 J. S. Logan, Canon City, Colorado. 
 
 Direct examination. 
 
 By Mr. Dawson : 
 
 I am sixty-six years of age and reside in South Canon City, and 
 have been in this locality thirty years in May. I was acquainted 
 with the Arkansas river in Kansas in 1863 and 1864 at a point near 
 Fort Larned. I was in the United States Army and stationed there 
 at that time. We were there from either the last of April or 
 
 2940 the first of May, 1863, until about the 25th of January, 1865 ; 
 along in May, June and July of 1863 the river was pretty 
 
 high ; the banks were full ; but sometime in the last of August and 
 September it was perfectly dry. The holes were all dried up and 
 the fish were all dead and everything. There couldn’t anything 
 live. You couldn’t get any water atall. This condition lasted some 
 six or eight or ten weeks; I don’t know just exactly how long. I 
 saw the river again in 1864, during the summer and early fall. I 
 don’t think it was quite so high in 1864, but it was just as dry, and 
 about the same in length of time, as in 1863, during August and 
 September. It was pretty much through these two months, from 
 six to eight weeks. There was no running water. That was 
 
 2941 about seven miles from Fort Larned. I know that General 
 Baldwin passed through this locality in 1863 and 1864, but 
 
 just which year I don’t know. It appears to be in 1864. I was in 
 the quartermaster’s department and issued rations to him and feed 
 for his stock. In 1875 I came up the Arkansas to here, but it was 
 in the spring of the year. I was noton the river in the late summer 
 or fall of 1865. There was not a very big flow of water at that time, 
 I think about in April. VVe struck the river at Ellinwood. We 
 came up in wagons. There didn’t seem to be much difference in 
 the flow of the river between the points from Great Bend to Cool- 
 idge in Kansas, and the river this side of the Colorado State line. 
 
 Cross-examination. 
 
 By Mr. Ashbaugh: 
 
 2942 The river had a uniform flow clear down from Colorado to 
 Kansas in April, 1865. There was always water in the spring 
 for two or three months, along in the summer. That would last 
 about six weeks. The river then would be bank full. Later in the 
 season that would run down and the river would be dry. During 
 the winter months of December, January and February there was a 
 little running water, but very little. There was flowing water, but 
 not so much as in the summer. My observation lasted from 1863, 
 through the year, through to January, 1865. During the dry times 
 of the year when there was no flowing water in the river there was 
 
^HE STATE OF COLORADO ET AL. 
 
 845 
 
 Water in the river bed so that you could get it by digging. 
 
 2943 We dug there to get what water we used when we were on 
 the river. I was at Fort Lyon in October, 1864. There was 
 
 a little flowing water then. There was more than there was in the 
 river below. It went under. It sank into the sand and flowed 
 down there and we could get it down the river by digging. 
 
 2944 We dug at Fort Larned to get water sixteen feet, and Fort 
 Larned is seven miles away on the Pawnee fork of the 
 
 Arkansas. The old Santa Fe trail was about half way between the 
 river and Fort Larned. There was a branch running up there. 
 Where we dug the well at Fort Larned seven miles from the river 
 and sixteen feet deep to water it seemed to me that we were 
 
 2945 pretty nearty on a level with the river. That is a very level, 
 flat country. We dug the well in the very dryest part of the 
 
 year and got water at sixteen feet. Of course the water raised — in the 
 creek we dug but a little wavs from Pawnee fork, it would rise in 
 the well as the water rose in the Arkansas river. I don’t think that 
 the water level we struck in this well at Fort Larned would be 
 below the water level of the water in the river, but would be just 
 about the same. Of course we were higher, a little, at Larned than 
 we were at the river, but then it is a level country and there is the 
 fall of the country and I don’t know what that is. As near as I could 
 judge the water level in the well was about even with the water 
 level in the river. I did not run any levels to find out accu- 
 
 2946 rately. This well was about thirty or forty feet from this 
 Pawnee fork. 
 
 During the flood season I think the river would rise about three 
 or four feet. I don’t think more than that. It is thirty years since 
 I saw it. The banks were very low and about three or four feet 
 high. 
 
 2947 Henry C. Beckham, Canon City, Colorado. 
 
 Direct examination. 
 
 By Mr. Dawson : 
 
 I reside in Canon City, Colorado, and have lived here about forty- 
 two years. I have been engaged a great many years in the range 
 cattle business, and now I am practically in the cattle business, 
 although not in the active work. I saw the Arkansas river in the 
 ’60’s in Kansas — in 1862. I think we struck the river somewhere 
 in the vicinity of what is known now as Great Bend, and from 
 
 2948 the point where we struck it I came to this place. We trav- 
 elled with ox teams. My recollection is we came right up 
 
 the river. I think we struck it in September. I left Westport, Mis- 
 souri, on the 20th of August. The river at the point we struck it 
 was practically dr} T . We could cross it on foot without getting wet. 
 There was no running stream then, and I remember we didn’t have 
 
§46 
 
 I'M# Sl’AT# 0# KANSAS VS. 
 
 any trouble after leaving Great Bend about getting sufficient water 
 for our stock. It was a small outfit. At Great Bend there was se- 
 rious trouble. We had to scoop out the sands with shovels 
 
 2949 to get water for camp, sometimes, and I think our cattle went 
 short of water there. We scooped out the sand to get water 
 
 for ourselves. As we advanced toward this country the water in- 
 creased, and by the time we reached Pueblo there was plenty of 
 water. As I recollect it, there was a regularly flowing stream from 
 the State line all the way to Canon City. I don’t think we had any 
 difficulty in finding plenty of water. Since coming to Canon City 
 in 1862 I have been more or less familiar with the Arkansas river 
 at this point. In the year 1863 the Arkansas river was a 
 
 2950 running stream through the summer and fall, and in fact the 
 whole year, here at Canon City, and that was also true in 
 
 1864. I have never known it to be dry, without a running stream, 
 at this point. 
 
 Cross-examination. 
 
 By Mr. Ashbaugh : 
 
 When the river was dry through a part of Kansas, we found run- 
 ning water in it above. As to where that water went, I suppose it 
 was an underflow and that it went into the sand. When we scooped 
 out the sand we didn’t have to go far. It was very shallow. Proba- 
 bly a foot or possibly two feet. I can’t say when irrigation began 
 in the Arkansas valley in Colorado. There were some ditches in 
 this vicinity when I came here, a good many, both on the 
 
 2951 river and its tributaries, small ditches. That was in the year 
 1862. These ditches were small compared with what we 
 
 have now. I couldn’t say how long these ditches were. They were 
 taken out of different creeks. They were just personal ditches to 
 irrigate a particular tract of land, hardly a mile or two long, I 
 think. Possibly not more than half or a quarter of a mile, and 
 just covering the small bottoms along the creeks and as near to the 
 river as they could get the land they wished to irrigate. These 
 ditches were possibly two or three feet wide and possibly a foot 
 deep at the deepest places. They would irrigate five or ten or 
 fifteen acres, and in the aggregate they were but a very trifling 
 percentage of what is now irrigated. 
 
 2953 John Pierce, Canon City, Colorado. 
 
 Direct examination. 
 
 By Mr. Dawson : 
 
 I have lived in this general locality since 1859 and was familiar 
 with the Arkansas river in Fremont county in 1863 and 1864. We 
 had a good stream of water running in it throughout both of those 
 years. I have never known this river to be dry either in this county 
 or in Pueblo county. 
 
‘rMk statu of colobado et al. 
 
 84 ? 
 
 Cross-examination. 
 
 By Mr. Ashbaugh : 
 
 The source of the Arkansas river is melting snows in the moun- 
 tains here. I don’t know what the average flow of the river 
 
 2954 is here. I never paid any attention to it. The river gets its 
 water from both the snow and rainfall and from the drainage 
 
 of the stream. 
 
 2955 James A. McCanless, Canon City, Colorado. 
 
 Direct examination. 
 
 By Mr. Dawson : 
 
 I am sixty-eight years of age and have lived in this county about 
 four years and a little over, and about eight miles east of where we 
 now are, on the Arkansas river. When I came to this country I 
 came overland with ox teams. I struck the Arkansas river at Great 
 Bend and travelled along it to this place. I struck it at Great 
 
 2956 Bend between the first and tenth of May, 1864. At Great 
 Bend there was no water flowing at all. After we got up 
 
 above to Pawnee rock there was a little stream running there, not 
 very much. Then when we got up to the mouth of the Pawnee fork 
 there was quite a little water running down. There was more water 
 coming down the Pawnee fork than there was in the river, caused 
 by rains, I suppose. As we came up to the Colorado State line and on 
 west into Colorado the river increased some all the way up. I went 
 down the river in the winter of 1866 or rather in the spring of 1867. 
 I left here in February and went down along the river clear through 
 to Great Bend and arrived there sometime in March. There was 
 a little more water in it than when I saw it before. It was 
 frozen over, so that we couldn’t tell much about it. It was mostly 
 ice. But there appeared to be more than when we saw it in 
 
 2957 1864. The town of Florence is largely built upon what was 
 my farm or homestead, and it runs down along the river. 
 
 So that since 1864 I have been familiar with the river at that point, 
 and I have never known it to go dry so that there was not a flow- 
 ing stream, although I have known it to get pretty low in the fall 
 of the } r ear. I couldn’t tell how long we were in going up the 
 river in 1864. We got here on the 29th of June at Canon City, but 
 we were water-bound by a flood that came on us at Sand creek be- 
 low Fort Lyon. This was in May, 1864. Sand creek is in the east- 
 ern part of Colorado, about fifteen miles below old Fort 
 
 2958 Lyon. We were water-bound there some fifteen days, and 
 the high water in the river lasted quite a while after that. 
 
 There was a great flood in all these mountain streams. The river 
 was very high up here at that time and lasted at least six weeks. 
 The water was high all that year, from that time on through the 
 whole season. There was probably plenty of water down in Kansas 
 
848 
 
 folE STATE OF KANSAS Vfe* 
 
 after that flood. When there is flowing water in Colorado and the 
 river about dry in Kansas I couldn’t tell you where the water goes. 
 
 I suppose it sinks in sand. I know we dug in the sand to 
 2959 get water at Great Bend and found it, and I suppose this 
 must be supplied from the flowing water in the river. 1 
 couldn’t tell, but we found water there. The only other source of 
 supply is in Pawnee fork. I don’t know of any stream that amounts 
 to much above that until you come up toward the mountains. I 
 suppose that this water that we found flowing in the river above 
 does have something to do with supplying the water that we found 
 in the bed of the river below. I don’t know of any other supply 
 for it. 
 
 The season of 1864 that I spoke of was a rainy season in this part • 
 of the country and along the mountains. From the time the flood 
 struck us at Sand creek the water was very high all that year. 
 When we crossed the Fountain at Pueblo it was very high. I don’t 
 remember whether it was any more rainy than common, however. 
 
 Pueblo, Colorado, December 14-15, 1904. 
 
 2961 John Ross, Pueblo, Colorado. 
 
 Direct examination. 
 
 By Mr. Gregg : 
 
 I am sixty -seven years old, and my residence has been at Boone 
 until here lately. I have been farming and stock raising, 
 
 2962 and am still interested in the cattle business. I have lived 
 in Colorado since the autumn of 1861 ; that is forty-three 
 
 years. My family has been here in Pueblo two years. Prior to liv- 
 ing in Pueblo I resided twenty-two miles east of here on the river 
 and carried on farming and cattle raising there. I have lived on 
 the Arkansas river all the time in Colorado, but I came up the Ar- 
 kansas river in the spring of 1861. I was with a freighting outfit. 
 We came on the Santa Fe trail to the Arkansas river and then up 
 the river to Canon City. We struck the river in Kansas not 
 
 2963 far from Great Bend. That was on the old Santa Fe trail. 
 We followed it up from there to Canon City. We were on the 
 
 river every day. When we reached the river at Great Bend in 1861 
 it was dry; that is, there was just a little seeped water would rise 
 here and there in it. There was no regular current, — no regular 
 stream. We found it above the surface here and there, though. 
 This was in the month of June. The best of my recollection is that 
 it was about a hundred miles from there to where a continuous cur- 
 rent was found flowing in the river. We were some six or 
 
 2964 seven days travelling up before we met with what you might 
 call a flowing current. I came up and located at what is now 
 
 called Boone or two miles east of that, twenty-two miles east of here, 
 on the Santa Fe road. That is on the Arkansas river. We travelled 
 somewhere about three hundred and fifty or four hundred miles 
 
tfHEl STATE OF COLORADO ET At. 
 
 §4§ 
 
 Coming from Great Bend to Boone, and according to my recollection, 
 for about one hundred miles of that distance immediately on leaving 
 Great Bend we found only holes of water here and there, and this 
 side of that we found the river flowing. I think we reached Boone 
 about the second or third of July. We found no place on the 
 
 2965 river which we could not ford. I have been on the river in 
 Kansas some, but not a great deal, but have been on the river 
 
 all the time in Colorado. I think I was on the river in Kansas again 
 in March, 1878. I drove down there with a wagon. We camped on 
 the river most every night. The river was quite low. The river ap- 
 parently was very low, but we didn’t cross it until we got fifteen 
 miles east of Dodge City, and there it was pretty wide but very shal- 
 low. It didn’t appear to be more than two or three inches at the 
 deepest. I went down as far as Kinsley several times. I had some 
 stock down there for two years, but I don’t remember the 
 
 2966 dates. It was generally in the spring of the year, though. 
 Mv best recollection is that this was in 1879, 1880 and 1881— 
 
 along there. I was there probably three or four different times. I 
 had some stock down there, and it was along in the fore part of the 
 year, in the spring, generally, when I went. When I went down 
 there I made short trips. I generally went on the railroad to Kins- 
 ley and then went to where the stock was. We kept the cattle on 
 the south side of the river, between Kinsley and Dodge. There 
 was always more or less water in the river at those times between 
 Dodge and Kinsley. It was generally low when I was there. 
 
 2967 You might say I have lived at Boone, Colorado, regularly 
 from the winter of 1861 until the present time, as I still stay 
 
 there most of the time myself. I have always been on the river. 
 My ranch is on the river. The river usually commences to rise in 
 May. It generally goes down about the first of July. In 1863 the 
 river was very low — rather lower than usual. That was a dry year. 
 There was not running water in it. In 1864 the river had an abun- 
 dance of water. The whole bottoms were covered from one 
 
 2968 side to the other all summer nearly. The high water came 
 from the excessive amount of snow in the mountains at that 
 
 time. I think it was entirely from snow. There was a very heavy 
 fall of snow in the mountains, very unusual, and there was some 
 rain. In 1863 it was very dry. In 1864 there was some very heavy 
 rains that made the river very high. I don’t recollect that there 
 was a great deal of difference between 1865 and 1868, on the aver- 
 age. I have never seen the river entirely dry at my ranch at 
 Boone. There was always some running water. It usually 
 
 2969 got very low in the latter part of the summer and fall, however. 
 I don’t know that there was a great deal of difference in the 
 
 flow of the river through the latter part of the summer and fall at the 
 time we usually call it the low run, between the very early years of 
 which I have spoken and the recent years. I am excluding drouth 
 years. There were always some years when the flow was better 
 than others, but I don’t just remember the years. Taking it over a 
 54—7 
 
§§6 ttik STATE OE kANSAS VS. 
 
 large number of years, I haven’t noticed a great deal of difference. 
 In 1864 there was quite high water, and the years of 1865 and up 
 to 1868 were simply average years. I never measured the water. 
 I couldn’t tell, only that the river was generally, in the fall, 
 
 2970 quite low. Taking it along in July, the river would go down 
 very low and remain so until probably in the winter. Of 
 
 course sometimes it would be lower than others, but usually it always 
 went down pretty low. Even in the high water years it always goes 
 low in those months in the latter part of the year or winter. We 
 took out an irrigating ditch — we had it surveyed in the winter or 
 fall of 1861 and we had it in operation by the spring of 1863; that 
 is, we did a little work with it before that, but not much. We took 
 it out ten feet wide on the bottom and probably two and a half feet 
 deep, and it was about nine miles long, and I should say it would 
 carry seventy cubic feet, and irrigated in those days about three 
 thousand five hundred acres of land. I am counting my land in 
 with others that was irrigated from this ditch. During the early 
 part of the time we were there we raised mostly corn, oats and wheat. 
 In later years we raised more alfalfa than anything else, and 
 
 2971 corn, and we usually have pretty fair crops. The head of the 
 ditch comes out of the river about eighteen miles east of 
 
 Pueblo. 
 
 I have some knowledge of seepage waters in the vicinity of 
 Pueblo along the Arkansas river. (Objection.) There are a 
 
 2972 great many of these arroyos that have no names. They are 
 only little draws that run in from the hills to the river, and 
 
 most all of them between Pueblo — the Bessemer ditch runs into the 
 Huerfano. Most all of them are running more or less water. The 
 ones I am speaking of are right east of Pueblo here. One of the 
 arroyos is called the Grand. I should judge it is about fifteen miles 
 east of here. I passed over it a number of times when it was dry, 
 but now it has a continuous flow of water in it the year round. I 
 couldn’t tell the number of feet. It flows very fast. But I have 
 crossed it quite often in coming up here to town with a buggy, and 
 sometimes go on that side of the river. I have crossed it when it 
 would be four or five or ten inches deep, and probably ten, twelve 
 or fifteen feet wide. 
 
 Cross-examination. 
 
 By Mr. Ashbaugh : 
 
 2973 During the year 1861 we found the river dry from where 
 we came onto it for, I should judge, about a hundred miles. 
 
 We came up'the river in June. June is supposed to have about as 
 much water as any time in the river. There was no high water 
 down there. I don’t know how it was up here. We didn’t get any 
 here until about the first of July. The river was quite low here 
 then. I don’t know of any high water in the river that year. 
 
 2974 We found more water up the river that year than down there. 
 In the years 1879 and 1881 I found water flowing in the 
 
THE STATE OR COLORADO ET AL. 
 
 851 
 
 river between Dodge and Kinsley and went down in March and 
 came back in April. It was generally along in the spring of the 
 year, sometimes earlier and sometimes later. I went down in 1882, 
 but I always went down on the train and just crossed the river on 
 the train. In each of these years — 1879, 1880 and 1881 — I found 
 flowing water between Dodge and Kinsley. I suppose there must 
 be more water in the river up in Colorado than there is through 
 Kansas when the water is low there. I suppose this water goes into 
 the sand. I don’t know where it goes, but the probability is it goes 
 down into the sand. 
 
 The high water that I spoke of in 1864 lasted through the 
 
 2975 whole summer, and I think that excessive snows in the moun- 
 tains the winter before was the cause of it, and the melting 
 
 snows that summer made the high water in the river. The name of the 
 ditch that we took out in the fall of 1861 was the Arkansas Valley 
 Irrigating Company’s ditch. That ditch is in operation now and 
 is now named the Arkansas Valley Irrigating ditch. There were 
 other ditches commenced about that same time. The water in 
 these arroyos must have come after — they never flowed any water 
 until the Bessemer ditch was taken out. I can’t tell how the water gets 
 from the Bessemer ditch into these arroyos. People irrigat- 
 
 2976 ing along. The water must go through the sand and find its 
 way out into the break of the hills next to the river. I can’t 
 
 tell how long it would take seepage water that is applied to land 
 two or three miles back from the river to reach the river. I don’t 
 know of any other source from which that seepage water could 
 get into the arroyos of which I have spoken excepting the Bessemer 
 ditch. 
 
 2977 George Gilbert, Pueblo, Colorado. 
 
 Direct examination. 
 
 By Mr. Gregg : 
 
 I am sixty-eight years of,age and have been in the cattle business 
 and farming for the last forty or more years here in Colorado, since 
 the spring of 1861. I have lived in Pueblo or near there since 
 1863, and I have done ranching and farming in connection with 
 the cattle and stock business. My farm is located about twenty-one 
 miles east of Pueblo, and I had about five hundred acres. I owned 
 it until recently I sold it. I am interested in the cattle busi- 
 ness. I have been along the Arkansas river. I think the 
 
 2978 first time in the summer of 1879 I was on a cattle hunt. I 
 don’t know just how far it was east of the State line, but 
 
 it was where the town of Lakin is, on the Santa Fe road. That 
 is east of the Colorado line. I think it was in the month 
 of July, probably. I was upon the river at that time, and found 
 it was low. There might have been some very small running 
 channels. There was one channel there, if I recollect right; 
 
THE StATK OE KANSAS V3. 
 
 m 
 
 it was probably twenty feet wide, and the water might 
 
 2979 have been six inches deep in it. It seems to me there 
 were a few smaller channels where a little water would run 
 
 in low places. I have only been at that point once. We were three 
 or four different days on the river before we got up to the State 
 line. A couple of days maybe. I don’t know the distance. And 
 we found some water flowing when we went there. It was not dry. 
 There were no floods at that point. The flood came down the river 
 when we were farther up in Colorado. This must have been some 
 time toward the last of July when we got there in 1879, I think. 
 The flood seemed to recede next day very much ; it ran off 
 
 2980 quickly. As we came up the river we judged by the water 
 marks that had been left that the water was falling very fast. 
 
 The next time I was in Kansas it was farther down, at 
 
 2981 Garden City. When the flood came at that time I should 
 say there was a breast of water two or three feet high, and it 
 
 ran down in a few days. After it ran down it reached about its 
 normal condition, and that was very low water. The river was 
 wide down there. It would be pretty hard for me to say how wide. 
 I didn’t cross it at this point. I would have to judge it by looking 
 at it. There might be places there a foot and a half deep in the 
 channel, but most of the stream, maybe, wouldn’t be but a few 
 inches, where the bars were. 
 
 In 1882 was the next time I was down in that country. I went 
 as far as Garden Cit}q I think, and was there about a week. I was 
 down at the river bank there at one time on that visit. I 
 
 2982 think that was in the month of August. I didn’t see any flow- 
 ing water in the river at that point. There were some pools in 
 
 deep places in the sand bars but 1 didn’t see any water flowing, and 
 I think I was in position to have seen it if there was any. I was 
 right on the north bank of the river, looking across the river. 
 
 2983 I made no particular examination of the ditches there at that 
 time, but just saw them, and there was no water in them. 
 
 Usually in the spring we had some difficulty in getting water to 
 irrigate our land. We would have to build a wing dam of some 
 kind to catch a sufficient flow to fill the ditch. I am speaking of 
 the ditch which we built to irrigate my own land. The dam was 
 usually built in March and April and up to May, and this 
 
 2984 has been the case for a number of years back — for twenty 
 years at least. The low stage of the water in the Arkansas 
 
 river is usually in the spring and fall. That is the lowest season. 
 Sometimes it occurs in the spring. I don’t notice much difference 
 in the amount of water at this period of the year between early times 
 and later. If anything, there seems to be a little more at the pres- 
 ent time than there used to be. 
 
THE STATE OF COLORADO ET AL. 
 
 853 
 
 Cross-examination. 
 
 By Mr. Ashbaugh : 
 
 2985 The high water in 1879 that I spoke of was at Fort Lyon 
 in Colorado. I don’t know whether it created a flood through 
 
 the State of Kansas or not. In floods there was enough water passed 
 down the river at Fort Lyon to make high water on down the river. 
 The melting of snows does not have much to do with the rise of 
 water in the river these late years. It melts in the mountains about 
 as fast as it falls. There is nothing to hold it there. When 
 
 2986 the snow melts in the mountains I suppose it finds its way 
 into the river. It does not come down at regular periods as 
 
 it used to. It comes down more evenly than it used to. When I 
 was in Garden City in 1862 I saw one or two old ditches around in 
 the bottoms. They were ditches that had been dug and the 
 
 2987 grass growed over them, and they looked as though they had 
 not been used much for a year or two. I mean by an old 
 
 ditch a ditch that is abandoned and not used. What I mean by it 
 is that it is a ditch in another State. When I was down on 
 
 2988 the bank of the river in Garden City I didn’t see any lake on 
 the north bank of the river. If there was a lake there near 
 
 that street and within forty rods west of it I thinjc I would have 
 seen it, and I didn’t see it. I don’t think there is very much differ- 
 ence in the normal flow of the river through the State of Colorado 
 now from what there was during the earliest years after I knew it. 
 I don’t know whether the river would be called unusually high this 
 year or not. This year has been a very wet year all through this 
 valley. This year has been a year, from my observation of the 
 river, that the floods have not been as great, although the regular 
 flow might have been more regular; but there have been no heavy 
 rains to make these excessive floods that I have seen — none that 
 came like what we call a cloud-burst. 
 
 2990 John J. Thomas, Pueblo, Colorado. 
 
 Direct examination. 
 
 By Mr. Gregg : 
 
 I will be sixty-eight years of age next February, and live right 
 near Pueblo. I have been running green houses and market gar- 
 dens for the last ten years, and the river runs across one corner of 
 my land. I have lived in Pueblo about forty years. I belonged to 
 the Colorado cavalry from 1861 to 1865. I was a member of the 
 legislature in 1879, was county treasurer in 1867 or 1868 and 
 
 2991 was register of the United States land office at Gunnison, 
 Colorado, from 1883 to 1887. 
 
 I was upon the Arkansas river in Kansas in 1864. We left Camp 
 Fillmore, thirty miles below Pueblo, in June, 1864, and travelled 
 
854 
 
 THE STATE OF KANSAS VS. 
 
 from there down to Fort Larned. I was a private in Company L, 
 First Colorado cavalry, and we were ordered down there by the 
 governor in the month of June. We stopped at Fort Lyon 
 2992 four or five days and the river at that time was bank full at 
 that point. There had been rains previous to that. The 
 amount ot water in the river kept decreasing all the time. We went 
 to Fort Aubrey or Aubrey crossing and camped thereabout a week. 
 I presume that was about the 20th of June. At Fort Aubrey we 
 could cross the river very easily. It was probably a couple or three 
 feet deep. We didn’t cross the river again the next point where we 
 stopped, any more than one night was at the Cimarron crossing. 
 The river there was very low. There was hardly any depth to it. 
 Perhaps six inches running in two or three little channels across 
 between the sand bars. We arrived at Fort Larned early in July 
 and stayed thereuntil the 10th of December, perhaps, and we crossed 
 the river frequently — perhaps twenty or thirty times during that 
 summer. That is near the mouth of Pawnee creek. There were 
 places there where water was running a little, three or four or five 
 inches deep, and at other places it was dry. It would run for a 
 little piece and then would sink and there would be a dry sand bar. 
 It wouldn’t be dry, but there was no water in sight. There were 
 places where no water was running on the surface of the sand 
 
 2994 at all. I made a trip up to the Cimarron crossing during the 
 summer time. I was appointed wagon master and took a com- 
 pany up there to Company A that was camped there. That trip ex- 
 tended up to Fort Larned, up this way to Cimarron crossing. There 
 were places where Company A was camped, about three miles be- 
 low Cimarron crossing, — there were places there where the river 
 was dry and no water in sight. At other places the river was 
 running. I was up the river again in December, all the way 
 up to Denver. The condition of the river at that time was about 
 the same as it was when I was up the time before. There was some 
 running water, and in some places it was dry. I never saw it dry 
 
 above Cimarron crossing. Wherever we struck it above there 
 
 2995 there was some water. I went down near Sargent on the 
 Santa Fe railroad, the year the road came in. That was in 
 
 the spring of 1873. It must have been in the spring, because the 
 road was lined on each side with buffalo carcasses that had been 
 killed and skinned during the winter. The water near that point 
 was running a small quantity. I presume it was a foot deep then. 
 I should judge it was one hundred and fifty or two hundred feet 
 wide, but the water didn’t run all the way across. There was a sand 
 har and channel. The channel might be fifteen or twenty 
 
 2996 feet wide. I don’t think it was over twenty feet wide. 
 
 I have lived on my land near the west limits of Pueblo for 
 the last ten years, and right along side of it about thirty or thirty- 
 five years, and I have had occasion to observe the flow of the Ar- 
 kansas river particularly every year. The regular summer flood or 
 flow commences from the 20th of May to the first of June and lasts^ 
 
THE STATIC OF COLORADO ET AL. 
 
 855 
 
 about thirty days. Sometimesit will run up to about the tenth of July, 
 but more frequently by the first of July it is down about to its orig- 
 inal flow. It is low in the late summer and fall, and from that on 
 it is pretty low. The amount of water running there in the early 
 years, compared with later years, I think, taking just the ordinary 
 flow the way it is now, — that there is considerably more water 
 
 2997 now than there was in the early days. My land is on the 
 north side of the river and adjoins the town on the west and 
 
 is surrounded by it, so that the flow is about the same right through 
 town here near the Federal court building as it is there, that being 
 only seven blocks west. I know of some arroyos around or near the 
 town of Pueblo which were formerly dry and in which there is now 
 water running. (Objection.) I don’t know that I can call them by 
 name. An arro\ 7 o that comes down into the south side of the water 
 works carries a large amount of water. Then there is a ditch along- 
 side of it to keep the water out of the road. Then the next 
 
 2998 arroyo above it has no name. There was no water flowing 
 in the arroyo of which I have just spoken before the Bessemer 
 
 ditch was built, but it has been flowing since that time. Prob- 
 ably to the extent of one-fourth of an irrigating head, such 
 
 2999 as we use ordinarily to irrigate with. I would think there 
 would be two or three — three anyway — cubic inches 
 
 running down that place. That is to sa}q one-quarter of a 
 cubic foot of water. I account for the water running in 
 there now on the ground of the seepage from the Bessemer 
 ditch. There are one or two more arroyos above that little 
 draw that run down a small stream of water now which did not 
 formerly; and then you come to one that Mr. Ault is using the flow 
 of for running a wheel to grind kraut with. He runs a kraut cutter 
 with a wheel; and that flow is continuous where it was formerly a 
 dry arroyo. And I account for this by seepage from the Bessemer 
 ditch and from the lakes and reservoirs. I should say there is very 
 nearly one-half of a cubic foot — one-third of a cubic foot — of water 
 running (here now. There is another draw above that one, 
 
 3000 that has no name, that runs more water than it does; and I 
 account for this by seepage from the Bessemer ditch, as it was 
 
 dry before the Bessemer ditch was put in. It has a continuous flow. 
 On the road down to the River View cemetery there are three or 
 four more draws that run water that were dry before the Bessemer 
 ditch was put in there, except in times of cloud-burst. And Salt 
 creek, I should think, runs four feet of water now. It runs con- 
 stantly, and I think it comes from the seepage from the Bessemer 
 ditch and the reservoirs of the Colorado Fuel & Iron Com- 
 
 3001 pany ; that is, there isn’t any other way to account for the 
 flow. The last one I spoke of is Salt creek, and that is a 
 
 mile and a half from here, down the river. Ail of these arroyos 
 take the water back into the Arkansas river again. (Objection.) 
 The Bessemer ditch gets its water from the Arkansas river. It runs 
 over the country south of Pueblo, coming out of the river about 
 
856 
 
 THE STATE OF KANSAS VS. 
 
 twelve miles above Pueblo, maybe a little more than that, and runs 
 over the table-lands south of the river and runs to the Huer- 
 
 3002 fauo river. I should say it is thirty miles in length and about 
 a mile back from the river here at Pueblo, and the farther 
 
 down it goes the farther back from the river it goes all the time, and 
 at the farthest point, where it crosses the Huerfano, I guess it is six 
 or seven miles back from the river. The drainage from that laud 
 covered by the Bessemer ditch reaches back to the Arkansas river. 
 
 I have known Fountain creek for years in the early days to be 
 dry for several months in the summer time, unless there would be a 
 flood, cloud-burst or something there wouldn’t be a drop of 
 
 3003 water in it. That was going over a period of ten, fifteen, 
 twenty and thirty years ago. I know the last two years I 
 
 have had occasion to cross it a good many times and to be along it 
 and it has had a current of water in it the year round. I should 
 judge that it was six or eight inches deep and twenty or thirty feet 
 wide, and it flows now all the year round during the dry season also. 
 I account for the difference in the flow of Fountain creek by the 
 seepage from the ditches and in no other way. By that I mean that 
 the water soaks into the ground from the ditches and reservoirs and 
 strikes bed rock and then flows into the river. The waters from 
 the irrigated lands return to the Fountain creek. They are obliged 
 to, from the lay of the country. (Objection.) 
 
 Cross-examination. 
 
 By Mr. Ashbaugh : 
 
 3004 The town of Sargent I spoke of was a mile east of the 
 State line, in Kansas. When we were down there in 1864 
 
 and went from Fort Fillmore to Larned the river was bank full, 
 and when we left Camp Fillmore it was pretty near to the top of 
 the doors of our cabin where we wintered. We had to move up 
 onto a high point and had to carry our things out. The river was 
 running bank full when we got to Fort Lyon, perhaps fifteen days 
 after that. I think the river was running down some before 
 
 3005 we left Fort Lyon, and when we got down to Fort Aubrey 
 the river was pretty well down to its natural stage. Its 
 
 natural stage down there was running about a couple of feet of 
 water, perhaps. All we could tell of its natural stage would be from 
 the looks of the banks. There was no overflow or anything. There 
 were places in Kansas it was dry and other places it would run 
 some water. I saw it almost every day that summer. I don’t know 
 what the river had been in prior years. If it had flowed more water in 
 the earlier years it would certainly have showed it. The bank 
 
 3006 is not over a foot or two high. It didn’t show any signs of 
 being out there. There was no drift-wood or anything of 
 
 that kind. I don’t know whether the river had been out of its 
 banks or not, but if it had it certainly would have left some signs 
 or showed some drift-wood or something, but I can’t tell anything 
 
THE STATE OF COLORADO ET AL. 
 
 857 
 
 about what the natural stage was prior to that time. The June 
 flood I spoke of I saw for more than thirty years. It sometimes 
 lasts thirty days and sometimes a little longer, but very seldom. As 
 to where it comes from, I am speaking of the melting snows and 
 the rains that come in the spring, not from the floods. Sometimes 
 there are rains that come with that that make very high water. As 
 to a general and uniform rise every year, that comes from 
 snow and rains in the mountains. The rain comes and takes 
 8007 the snow off. 
 
 Some of these arroyos I spoke of do not reach up but a few 
 hundred feet from the river, and I think the water that gets back 
 from the Bessemer ditch helps to increase the average flow of the 
 river for the year. I don’t know how much gets back from the 
 Bessemer ditch, but I know of ten feet of water that gets back 
 
 3008 from it. That would be my judgment. But not from that 
 alone, but from all the other ditches. I don’t know how 
 
 many ditches there are, but I know of some up in Chaffee county. 
 They are right on the Arkansas, about a hundred miles up the 
 stream, and the seepage gets back into the river long before it gets 
 down here. I don’t know what the amount of water that generally 
 flows through the Bessemer ditch is. I have no idea as to what pro- 
 portion of the water that is used in irrigation becomes seepage water 
 and gets back into the river. It couldn’t go anywhere else. It has 
 to follow the slope of the bed-rock into the river. I know the seep- 
 age water goes back into the river because I see it every day. 
 
 3009 Oliver H. P. Baxter, Pueblo, Colorado. 
 
 Direct examination. 
 
 By Mr. Gregg: 
 
 I am sixty-nine years of age; am in the real estate business now ; 
 and have been here since October, 1858. I was the first commis- 
 sioner of Pueblo county under Gilpin — one of the first — and organ- 
 ized the county. I was in the legislature for two terms, and have 
 been county commissioner for eight or ten or twelve years, all told. 
 1 have been in the city council, etc. I was in the army in 1864, 
 captain of Company G of the Colorado Third, and was down the 
 Arkansas river in Kansas. We were after the Indians there 
 
 3010 in 1864. It was in the latter part of November or the first 
 day of December of that year. We were some sixty or sev- 
 enty miles down beyond the Kansas line. We struck the river 
 there. We only stayed on the river, I guess about six or eight miles. 
 We left it then. That was this side of Dodge some distance. When 
 we struck the river and all the time we were on it there was no flow 
 of water at all. The reason this is impressed upon ray mind is that 
 when we went into camp we had to digin the bed of the river to get 
 
 water in the sand. There was no running water at all. Dodge 
 
 3011 City was Fort Dodge at that time, really. There was no run- 
 ning water in the channel when we dug in the bed of the 
 
858 
 
 THE STATE OF KANSAS VS. 
 
 river. I have not been on the river in Kansas since that. I came 
 up the Platte river in Colorado in 1858 and stopped at Denver or 
 where Denver is now. 1 located land near the Arkansas river in 
 Colorado about six miles below Pueblo. The river ran through my 
 land and took a good deal of it away. I built an irrigating 
 
 3012 ditch ; I think it was four feet at the bottom, six feet at the 
 top and two feet deep. I figure it would carry about eight 
 
 or ten cubic feet of water. We started it in 1861 and finished it in 
 1862. I think we irrigated something between twelve hundred and 
 fifteen hundred acres. 
 
 There was a great drouth in the States of Colorado and Kansas 
 in 1863, and there was one year, I couldn’t fix the date exactly, but 
 I think some time in the ’80’s, when it was almost as dry, and 
 of recent years it has not been so dry as at those particular times. 
 I think 1902 was about an average year, but I don’t remember 
 distinctly. 
 
 3013 I have noticed some arroyos around and near Pueblo 
 which were formerly dry in the early years, and in recent 
 
 years, particularly on the other side over here, since the Bessemer 
 ditch was built, there is any amount of water coming down a great 
 many of those arroyos continuously. (Objection.) I account for 
 this water as coming from the seepage from the Bessemer ditch, 
 which it undoubtedly does, as I can account for it in no other way. 
 The Bessemer ditch irrigates the high lands south of the town all 
 the way down to the Huerfano. 
 
 Cross-examination. 
 
 By Mr. Ashbaugh : 
 
 When we started at soldiering here in October, 1864, it was 
 
 3014 very muddy and wet. We had a terrible winter in 1864-5. 
 That was the worst winter we ever had in Colorado, and we 
 
 had a good deal of water. There was no water in the river down 
 in Kansas when we struck it. The water that we found flowing in 
 the river in Colorado when there was none below in Kansas went, 
 where it always goes, into that sand down there on the plains. We 
 had no trouble about finding water by digging in the river bed, 
 and that is one evidence that the water sinks into the sand. As the 
 water came to different formations it would go into the sand. The 
 sand gets more and more as you go down the Arkansas river. This 
 exists both as to width and depth in the river. 
 
 3015 The ditch that 1 spoke of I think was commenced in Oc- 
 tober, 1861, and started about six miles below Pueblo and 
 
 was known as the Baxter & Warren ditch. I think it had a decreed 
 appropriation of eight or nine second-feet. The Bessemer ditch does 
 not cross every one of these arroyos, and where it does not cross 
 them the water gets down into that gravel and sand and 
 
 3016 works its way down and forms an underflow. There is bed 
 rock here and in some places there is four or five feet of coarse 
 
THE STATE OF COLORADO ET AL. 
 
 859 
 
 gravel. I couldn’t answer the question as to what proportion of the 
 water is used in irrigation becomes seepage and finds its way back 
 into the river, but from Canon City all the way down there is a great 
 amount of water that comes back, from those sources into the river. 
 There is quite a good proportion of the water gets back, but how 
 much I couldn’t say. 
 
 By a “ highline” ditch I mean one like this Bessemer ditch that 
 goes back onto what we call the mesa lands. Our ditch followed the 
 bottom lands, while the Bessemer ditch follows the high ground. 
 
 Redirect examination. 
 
 By Mr. Gregg : 
 
 3017 The seepage water from the Bessemer ditch would seek the 
 Arkansas river and the seepage from the lands irrigated by 
 the ditch we built would also seek the Arkansas river as it followed 
 the bottom very closely down, the whole bottom which they farmed 
 in the early years. 
 
 3019 Lewis Conley, Pueblo, Colorado. 
 
 Direct examination. 
 
 By Mr. Hayt : 
 
 I have resided in Pueblo, Colorado, nearly forty years, since and 
 including 1867, and I am nearly eighty-one years of age. I have 
 been a contractor and builder most of my life and have been for a 
 while in Colorado a farmer. I farmed between here and Canon 
 City on Beaver creek. That is a tributary of the Arkansas river. 
 And on the Chico, about fifteen miles below Pueblo, under the Ex- 
 celsior ditch. I was born in NewJYork and came to Leavenworth in 
 1858 and to the Rocky mountains in the spring of 1860. It 
 
 3020 was not Colorado then. I saw the Arkansas river first in 
 1860 at, I think, Great Bend, and about sometime in May. 
 
 I was travelling at that time with a company from Leavenworth to 
 Pike’s peak in company with another family. There were only two 
 families of us. We were in company with others off and on. 
 
 I recall very distinctly the first time I saw the Arkansas river 
 and the impression it created on my mind. I was surprised to only 
 find a great, sandy channel or bed and to hear it called a river, 
 with no water in it. It rather struck me as though we hadn’t struck 
 the Arkansas river yet, but still we were told that was the Arkansas, 
 and it was. We followed the course of the river from there clear 
 up to Canon City. The river was perfectly dry at the point where 
 we first struck it, and I think the first place we struck run- 
 
 3021 ning water was about where Fort Lyon, Colorado, is now. 
 The water was simply running at that point in a small 
 
 stream. I am not sure that we struck much water, though, until 
 
860 
 
 THE STATE OE KANSAS VS. 
 
 we got above Fort Lyon. I think we struck a channel of water 
 there and it sank into the sand. I recollect of noticing it quite par- 
 ticularly, as we thought we had struck a flow of water that would 
 keep on, that perhaps there had been higher water somewhere up 
 in this country above us, and my idea was that it was coming, but 
 still it didn’t gain any. It kept sinking and sinking. It didn’t 
 seem to gain any headway from where I first saw it at Rocky Ford. 
 It sank in the sand. We averaged from twenty to twenty -five miles 
 a day, having ox teams. We reached Fort Lyon somewhere in the 
 latter part of May. The water increased from Fort Lyon 
 
 3022 every day a little as we came up, and the old-timers along, the 
 old travellers who knew something about the country and had 
 
 been here before, told us we were getting the melted snows that were 
 coming down, and we were getting a little more and alittle more water 
 every day as we came up the river. The channel got a little larger 
 and larger. There was no settlement here at Pueblo at all. The 
 only settlement was a little Mexican one at what we called Fountain 
 City, across on the other side of the Fountain. There were a couple 
 of mines below there, and we passed right on up the river to Canon 
 City. There was no settlement between Pueblo and Canon City at 
 that time, and nothing at Canon City except two or three — a black- 
 smith and a wagon repairer and two or three pioneers. We found 
 no irrigation ditches on this trip at all. I have seen the Arkansas 
 river from that time up in this country until now. I saw the 
 
 3023 river in 1861 from Canon City to Fort Lyon. There was 
 plenty of water in it then. 1861 was not a wet season nor an 
 
 extremely dry one. The river was in a moderate stage. We made 
 two or three trips from Canon City to Fort Lyon, one about June, 
 and then about September, and I think one between, and the water 
 was at a good, fair stage, all the way, pretty nearly alike, to Fort 
 Lyon. I think the stage of the water generally was a little less from 
 Fort Lyon — between Rocky Ford and Fort Lyon — than it was above. 
 It seemed to be a little smaller river below Rocky Ford than it was 
 from Rocky Ford to Canon City. I noticed that it was growing less 
 as you went down. I didn’t take any particular notice of the 
 amount of water in the river at Fort Lyon, any more than I 
 
 3024 thought there was less water than there was up in about 
 Rocky Ford. It had a little less and less, but not very much 
 
 difference. It seemed there was considerable seepage. I crossed 
 the river in the vicinity of Fort Lyon. It was a ride or drive across 
 with a team. I should judge that where we crossed at the ford the 
 water would come up to about the hubs of the wagon in the deepest 
 point of the ford. I don’t know exactly how wide the channel was, 
 but not very wide. Possibly it might have spread out where the 
 ford was to a couple of hundred feet, maybe, but not all the way 
 that deep. That was the deepest place. And at the shallowest 
 place it ran up to a foot — out to nothing. 
 
 I saw the river again in 1862. At that time Fort Lyon had 
 started up and there were soldiers and a post there, and by this time 
 
l^HE STATIC OF COLORADO ET At,. 
 
 861 
 
 We bad gotten to farming some up here, trading our produce 
 8025 with the commissary sergeant there for sugar, flour and rice 
 and anything they had to trade for vegetables and what we 
 had. We made two or three trips down to Fort Lyon in that year, 
 as I said, in the late spring and up to the fall. In 1862 there was a 
 little more water in the river than in 1861. 1862 was what we called 
 
 a wet year. Not extremely wet, but a little wet, and the Arkansas 
 river was a little higher, but it was more noticeable up here than at 
 Fort Lyon. You couldn’t see much difference there, but there was 
 a difference. It was a little higher. There was a little more water at 
 Rocky Ford in 1862, enough to perceive it was a little higher. In 
 1863 I don’t recollect whether I was at Fort Lyon more than once, 
 but that was a very dry season and the water was extrememly 
 
 3026 low. TheriverwasdryinplacesbetweenPuebloand FortLyon, 
 where there were onty little bits of channels running, and in 
 
 places it was standing in holes. As you got nearer Fort Lyon there 
 were dry places : — places where there was no continuous channel at 
 ail. 
 
 I think it was in 1867 I made the plans for the bridge at West 
 Las Animas across the Arkansas river and superintended the build- 
 ing of it. I think West Las Animas is the same as the present town. 
 I was only down there a few trips at that time, just to superintend 
 the bridge. I didn’t attend to the whole building of it. Another 
 man had the contract for building the bridge, but it was under ray 
 supervision and plan. It was built by the Las Animas Company. 
 I don’t recollect now who was in it with the exception of Captain 
 Craig. 
 
 I am not certain of the months in which I was there in 1867, but 
 it was along through the middle of the summer and tolerably late 
 in the fall, perhaps as late as October and maybe as late 
 
 3027 as November. That season the river was in a pretty fair 
 stage, perhaps a little above the average, and when we were 
 
 building the bridge, the water, I suppose — it was in a place of slack 
 water that was backed up, and I suppose where the bridge was built 
 the water would average nearly three feet deep, nearly across the 
 river, or perhaps half way across, and then sloped up gradual ly to 
 nothing. For driving the piles we used a flat-boat, because it was 
 more convenient. It was the most convenient for staging — for 
 driving the piles. A little ways below where the bridge was there 
 was somethinglike aledge in the river that held the water back 
 
 3028 and made the channel smaller where it passed over that ledge. 
 I think that ledge ran only a part of the way across the river 
 
 On one side of the river it was limestone formation and on the other, 
 side there was no rock formation at all, just dirt. That was on the 
 deepest side of the river. The water in the river ran over this ledge. 
 I should judge it was a foot deep when it passed over it, and the 
 channel was perhaps forty or fifty feet wide. There was practically 
 no fall at all in the river, just simply a little river, you might say. I 
 didn’t go below there that year, that is, in that vicinity, only down 
 
862 
 
 tfHE STATIC OF KANSAS VS. 
 
 about the mouth of the Purgatoi re, which was, I think, four or five 
 miles below there. I didn’t go with a view of examining the river ; 
 I simply had some acquaintances living there. 
 
 I have had one year’s experience in rafting ties down the 
 
 3029 river. That was in 1875. We started up in the mountains 
 somewhere about what we called California gulch and the 
 
 South Arkansas sometime in May. California gulch is where Lead- 
 ville is now. We aimed to take advantage of the high waters on 
 account of the melting snow. The ties were cut through the pre- 
 vious winter, and those that came out of the side streams, for in- 
 stance, what we called the Cottonwood mountains — the Cottonwood 
 range — there were two streams called the Cottonwoods came out and 
 they joined a mile or two or three miles before they came to the 
 Arkansas. Up those steams in the mountains were some lakes, and 
 we fixed those lakes — we dammed them up and could raise the water, 
 especially in one of the lakes, about three feet, and in the other 
 about twenty inches, I guess. We would let that accumulate over 
 night and have a man stay there over night, hoist the gates 
 
 3030 and let the water down about two or three o’clock in the 
 morning so that it would get down for us where we had the 
 
 ties and it would help us give the ties a boost to get them toward 
 the Arkansas. In that way,, after working a week or ten days, I 
 think, we got one hundred and sixty thousand ties that we had in 
 the Cottonwood mountains down to the Arkansas. We boosted 
 them along while that flood lasted for a mile or two or three miles, 
 whatever we could, and then we would have to wait until the next 
 day. Finally we got into the Arkansas river, when of course we 
 had the benefit of that water out of the Cottonwood and the Arkan- 
 sas together, together with a stream that comes out of California 
 gulch, to help us along, and then we had men to help us punch 
 those ties along separately and keep them going. We still relied 
 upon the water from this lake in the Cottonwoods to help us along. 
 It was pretty hard work and we were anxious to get down below 
 the South Arkansas in order to have the help of that stream and 
 had a good deal of work before we got them there. The South Ar- 
 kansas empties into the Arkansas below Salida at a place 
 
 3031 called Cleora. Finally we got the ties down to Canon City. 
 When we got a little below Salida — I forget what you call 
 
 the place, but there was a stage station there in those days. It 
 was a little below the mouth of the South Arkansas — we got 
 some rains. We got an elegant rain there that gave us a 
 nice boost and helped us clear down the Grand Canon. We had 
 some trouble in the latter place. We had some gorges there 
 and had to punch them up and punch them through the gorge 
 and finally we got to Canon City, and there we had a little rain 
 that helped us a little and raised the river a little and we got them 
 down to Pueblo very well, and right through the town of Pueblo 
 we had a good little rain. We got them down about ten miles below 
 here to the Chaffee ranch and there we had a good rain in some 
 
STAtB 6 £ COLOR A BO AL. 
 
 §63 
 
 branches above that came down and gave us a pretty good boost 
 pretty well down to Rocky Ford. As we went down about to the 
 Chilcott ranch we had this little flood on, helping us along down to 
 about Rocky Ford, and we had considerable punching and running 
 in getting them down until we got to about the Apishipa. No, we 
 hadn’t yet got to Rocky Ford. We were having some trouble 
 
 3032 in getting them along, and when we got down near the 
 Apishipa we had a good flow in that river and it helped us 
 
 wonderfully. We were down pretty nearly opposite there, ready to 
 get the benefit of the flood, and the flood in the Apishipa took the ties 
 all out of the river and took them out for two or three miles across 
 the country. I don’t know how big the bottom is there. The 
 trouble we had before reaching there was on account of the want of 
 water. You see the water was so limited, the channel was so small, 
 that the amount of ties we had, if they accumulated, they gorged 
 and stopped. It took about a foot of water to float them. There 
 were some places in the channel where it was more than thirty or 
 forty feet wide that was deep enough to run a tie. Perhaps it was 
 from eighteen down to ten inches deep. These ties, running, accu- 
 mulated and held up some water behind them, and that helped to 
 push them through. Even the running — floating — ties acted as a 
 dam, and helped to keep the water up behind them, and that was a 
 benefit to us in running through these narrow and difficult places. 
 Below the Apishipa this flood came down and got our ties and 
 
 3033 and carried them out of the river entirely and across the bot- 
 tom and over the country, and over next to the bluff it was 
 
 lower than it was between, you see. I mean the north bluffs. It 
 seemed there might have been a sort of channel there some day. It 
 was not an old channel, but it looked as though it might have been 
 at some time in high water that water might have run there. After 
 the ties were carried over by the floods we kept punching them in and 
 carried them on around and brought them back into the river again 
 below. It must have been six or eight or ten miles around this 
 circle. The water in the river opposite these bluffs before the flood was 
 so shallow as to cause difficulty in running the ties, and at the 
 
 3034 time of the flood there was water in the channel but our ties 
 hadn’t got below the force of this water coming from the Apish- 
 ipa, so that this flood caught the ties as they came along and carried 
 them around and brought them into the river below, but still it left 
 some scattered between, nearly twenty thousand. We had a hun- 
 dred men helping us back in the mountains getting these ties. This 
 flood kept up in the river long enough until we got down to the 
 Timpas. By the time we got there there was a flood in the Tim pas 
 again that helped us on with the ties until we got down to Las Ani- 
 mas. We didn’t ever expect to succeed in reaching the place. The 
 railroad company was not expecting to get the ties that year at all 
 
 until they saw that these floods helped us through with them. 
 
 3035 I don’t think we could have gotten these ties down if it had 
 not been for the assistance of the flood. When we got to Las 
 
864 
 
 Ttffc S*r AT* l€ OB' KANSAS VS. 
 
 Animas the floods went down and the water was pretty low. At the 
 time of the floods the water was high enough to dam up the ties 
 against this bridge I was telling you I built, and it carried the ties 
 over the floor of the bridge to the railing of the bridge below. But 
 these were not our ties, they were some run down by Bush the year 
 before. There was very little water below the bridge except in this 
 flood. I couldn’t tell how much, but not enough to call it much of 
 a river. Quite a small stream. Not enough to carry the ties far- 
 ther. 
 
 Cross-examination. 
 
 By Mr. Ashbaugh : 
 
 3036 In the spring of 1860 when I struck the river at Great 
 Bend we had rain below Great Bend, but I think no rain be- 
 tween Great Bend and Canon City. I think there was no drouth 
 over this country in the fall of 1859 and during the whole of the 
 year 1860. No, that is not true. The great drouth was not until 
 1863. There was an abundance of rain west of Great Bend in 1860. 
 After I reached this country there wasn’t a drouth. There was rain 
 through western’ Kansas in 1860, in the fore part of the month of 
 May. We crossed the Kaw river some place where I don’t remem- 
 ber the name, and for two or three weeks had several very 
 
 3037 heavy rains. This was on the Santa Fe trail south of the 
 Kaw river and north of the Arkansas. The rain I speak of 
 
 was in the Arkansas valley. 
 
 When I came up the river in 1860 there were no signs of any such 
 thing as an irrigating ditch. There was a great drouth through the 
 Arkansas valley in 1863. 
 
 I was not the first one who rafted ties down the Arkansas 
 
 3038 river. I think Mr. Bush rafted some down the year before, 
 which was, I think, 1873, and other parties had rafted ties 
 
 before that time, but not, I think, in more than one year, though I 
 am not sure. I think these parties rafted ties down in two different 
 years before ours. We got our ties down to Las Animas and turned 
 them over to the Santa Fe Railroad Company. The Santa Fe 
 
 3039 railroad was built up the valley that year. That is the way 
 the Santa Fe Railroad Company got its ties then. They took 
 
 some of the ties below Las Animas, and perhaps as far as the State 
 line, hauling them by team. The ties that were rafted down the 
 year before ours were used for the Kansas Pacific. Some of those 
 ties were taken out at Canon City and at other points along down. 
 Some of them were lodged on the bank for want of water to run 
 them and were taken up. I don’t think anybody rafted ties down 
 the river after 1875 when the railroad was built. Taking the bed 
 of the river through the city of Pueblo in those years as compared 
 with what it is now, I don’t think there is a great deal of dif- 
 
 3040 ference. The channel is, however, altogether different. It 
 has been straightened a good deal. It has been straight- 
 
THE STATE OF COLORADO ET AL. 
 
 865 
 
 ened in places. In high water the river spread all over the country 
 here and in low water it was a little stream that you could pretty 
 nearly step across, at any rate I have waded it hundreds of times. 
 
 I have heard of boats built here at Pueblo that went down the 
 river. I have known of one or two that were built and started here, 
 but I never knew any to get any great distance. The first. 
 
 3041 one was built, I think, in 1864. It was something like what 
 we call a scow — a sort of flat-boat. The man who built the 
 
 boat got onto it somewhere here below Pueblo and went down a few 
 miles and ran into a drift or snag pile and capsized and was drowned, 
 and that was the end of his boat and the end of him. The boat 
 drowned also. There were one or two cases of some fellows that 
 wanted to go East and were “ broke ” and got a little boat of some 
 kind and started down the river, but collapsed down here about 
 Boone, as I heard. J don’t know of any boats that were built here 
 that got through. There was water enough in the river to drown a 
 man in the year 1864. That was the reason of his building the 
 boat — because there was an extraordinary run of water here and he 
 thought there would be water enough to take his boat down into 
 Kansas, I suppose. There was no occasion for floating ties 
 
 3042 down the river after 1875, for the railroad had been built 
 then. The railroad didn’t reach Pueblo until 1876. I think 
 
 we had 268,000 ties that were floated down the river. 
 
 Redirect examination. 
 
 By Mr. Hayt : 
 
 I mean by “rafting” ties that they were simply floated. They 
 were punched. Punching ties, we called it. Rafting was an impos- 
 sibility. Each tie was separate. There were places, you know, 
 where there was slack water for some miles where ties could be 
 floated along easily by men going along on each side of the river 
 and keeping them together. I don’t know that anyone ever at- 
 tempted to float ties after 1875. I think not. 
 
 3044 
 
 P. F. Lull, Pueblo, Colorado. 
 
 Direct examination. 
 
 By Mr. Dawson : 
 
 I reside in Pueblo and have been in this country about twenty- 
 five years. I saw the Arkansas river in Kansas in 1872, from Fort 
 Zarah clear up to Fort Dodge. Fort Zarah was near the present 
 town of Ellinwood. We came by wagon and followed the course 
 of the river. The water stood in pools in the river. There was no 
 running water. I don’t recall striking any running water, 
 3045 except there was a little when we got up to Fort Dodge. We 
 got water for our stock in some places by shovelling up the 
 quick-sand and keeping it moving so as to let the stock 
 
THE STaTE OF &A&SAB VS. 
 
 drink, and did that often to get water to cook with. We did this ill 
 the bed of the stream. We went over there in June. I was leaving 
 Salina, Kansas, and went over in May. We reached Fort Dodge in 
 June, and I was there all summer, and I have had no opportunity 
 since then to observe the river in Kansas. When I first came out 
 here I was in the employ of the Rio Grande Extension Company 
 when they built the railroad. At the present time I am bailiff in 
 the district court of this county. 
 
 Cross-examination. 
 
 By Mr. Ashbaugh : 
 
 3046 There was not any high water in the river to amount to any- 
 thing in the year 1872 down in Kansas. I was on the river 
 
 from May, all summer. I went over and helped survey Ellinwood. 
 There was a little more water in the river up at Fort Dodge than 
 away down by Ellinwood. There wasn’t much flowing water in the 
 river at Ellinwood, and no flowing water at Larned at all. Up at 
 Dodge along in the fall the water came up and flowed some, because 
 I crossed the river at Dodge with some teams, hauling buffalo 
 
 3047 hides. I don’t know how it was up the river, as I didn’t 
 come west of Dodge at all. We could always get water in 
 
 the pools in some places. We would have to dig up the sand. But 
 there was no water running from one pool to the other. There was 
 water above all the time in the winter, but it sank into the sand. 
 
 3048 Granville G. Withers, Pueblo. Colorado. 
 
 Direct examination. 
 
 By Mr. Dawson : 
 
 I reside in Pueblo, and at present am superintendent of the north 
 side water works ; that is, the water works that furnish the city with 
 water north of the Arkansas river in Pueblo. The main plant is 
 situated on the north side. I have lived in this locality for thirty- 
 four years, and I will be fifty years of age on the 30th day of Janu- 
 ary. I first crossed the plains in the spring of 1862. I was a bov 
 at that time in the neighborhood of eight years of age. I 
 
 3049 came in the old Southern Mail & Express Company’s stage. 
 We took it at Westport, Missouri. We travelled along the 
 
 Arkansas river. I don’t positively remember just where we struck 
 it, but somewhere in the neighborhood of Dodge or Larned. Along 
 in that part of the country somewhere. The stage stopped along the 
 river, and we were out every minute we could get out and get away 
 from the people who were trying to hold onto us, as children. My 
 brother was with me, and a boy named Johnnie Adams, about my 
 own age. The old stage road followed right along the river for 
 quite a distance, right along the the bottom, in fact I should judge 
 
THE STATE OF COLORADO ET AL 
 
 867 
 
 it was a couple of hundred miles or more that it followed right along 
 the river. I don’t remember positively the month, but it must have 
 been sometime in the latter part of April or first of May. It 
 
 3050 was comparatively warm, although it was cool in the morn- 
 ings and* evenings. At different places where we stopped 
 
 and travelled along there were great stretches of sand in the river 
 probably a quarter of a mile wide where there didn’t seem to be any 
 water at all, and where we stopped close to the river us “ kids ” 
 would get out and chase down onto that sand and my mother would 
 chase after us thinking we were going to get into some kind of mis- 
 chief and trouble, and we would get out and dig holes in the sand. 
 There was no water on top. The men would did holes, bigger holes, 
 in the sand — and that showed us how to dig — in order to get water 
 for their stock. There were various places along the river, stretches 
 that we saw, which were dry so far as any running water on the 
 surface of the river bed was concerned. 
 
 Cross-examination. 
 
 By Mr. Ashbaugh : 
 
 3051 I don’t know that my mother was afraid we would get 
 drowned, but she was afraid we would get away and the In- 
 dians would catch us and she was watching us pretty closely. I 
 don’t remember whether there were any water holes or not; I don’t 
 remember seeing any along in that part of the country. A boy’s 
 recollection is all 1 pretend to have; but it is very distinct, that 
 part of it. I don’t pretend to say where we struck the river, nor 
 where we left it, although I do remember we left the river at Fort 
 Lyon, and there was plenty of water there. I don’t know how long 
 we were on the river, but it was several days. We must have been 
 two weeks in making the trip from Westport to Iron Springs, thirty^- 
 five miles from Fort Lyon. The water that we found plentiful at 
 Fort Lyon must have sunk into the sands as it went down the river. 
 I should think the river, as I recollect it, was in the neighborhood 
 of three hundred feet wide, but of course you understand that is a 
 very indistinct recollection because I haven’t been there for years 
 since and I haven’t been down the river so as to refresh or correct 
 my recollections at all. 
 
 3053 C. B. Schmidt, Pueblo, Colorado. 
 
 Direct examination. 
 
 By Mr. Hayt : 
 
 I am sixty-one years of age, and reside at Pueblo at present. I 
 am manager of the Suburban Land & Investment Company, which 
 controls land along the Bessemer irrigating ditch. It gets its water 
 for the irrigation of its land from the Bessemer ditch. I am also 
 an officer of the Bessemer ditch. I came to Missouri in 1864 and to 
 
THE STATE OF KANSAS Vl 
 
 Kansas in 1868. In Missouri I was following the mercantile busi- 
 ness, at that time, and I was induced to come to Kansas in 1868, as 
 it was the opening up of the State, and it was the supposed chances 
 for business that tempted me to come there. And then I 
 
 3054 came to Lawrence in 1868 and followed the mercantile busi- 
 ness, and in 1873 entered into an engagement with the Atchi- 
 son, Topeka & Santa Fe Railroad Compan}' to take charge of its 
 immigration interests as commissioner of immigration. I held 
 that position until July, 1885. The territory embraced within my 
 jurisdiction as immigration agent 1 was the extent of the land 
 grant of the Santa Fe road. Those lands began on the Cotton- 
 wood river in the vicinity of Florence and Marion and extended 
 to the west line of the State — a belt of forty miles in width along 
 the line of the road from that point. I think approximately 
 there were 3,200,000 acres to dispose of. My first work was to com- 
 pile literature — advertising literature — in the German language, for 
 use in Germany and among the Germans in this country, and later 
 on as the work progressed the entire immigration colonization work 
 was placed in my hands, and I travelled abroad. I travelled through 
 
 the United States and travelled in Europe and induced people 
 
 3055 to come out, and when they did come out located them upon the 
 land grant. I had an office with headquarters at Topeka, with 
 
 the general offices of the Santa Fe Company. My first mission was to 
 travel over the line and familiarize myself with the character of the 
 country, and the company desired that I should select a large body 
 of land somewhere where I thought it was most suitable for a dis- 
 tinctively German colony, where I was to center as large a body of 
 German settlers as possible. That was the first thing I did, and I 
 selected for that particular purpose ten townships of land in the Ar- 
 kansas valley, the center of which is the present town of Ellin wood 
 in Barton county. About half of the land was on the north side of 
 the Arkansas river and the other half on the south side. At that 
 time there was a fort there called Fort Zarah. It was somewhat 
 nearer Great Bend than is Ellinwood. But that was at that time all 
 abandoned and the settlers there hauled away the stones that com- 
 prised the buildings and used them for foundations for their houses. 
 I began in Januaiy, 1873, in locating that land in Ellinwood, and 
 the settlers began to come in during the latter part of that 
 
 3056 year, and in 1874 they came in very large numbers. In that 
 particular vicinity I should say that I located five or six 
 
 thousand settlers, and they are still remaining there and are very 
 prosperous. 
 
 In regard to my familiarity with the Arkansas river, commencing 
 with the year 1873, at first it looked very discouraging to me, and 
 I found when I had people to show over the country that they 
 always objected to that dry river, and they claimed that the general 
 supposition that this was the American desert was shown by the 
 condition of the river there. It was most always absolutely dry, 
 and we had that to contend with always when we brought the 
 
THE STATE OF COLORADO ET AL. 
 
 869 
 
 settlers out. The river, in fact, so far as my work was concerned, 
 was a bugbear. I bad to explain why that didn’t make any differ- 
 ence to the settler, that they could get ample water for domestic use 
 by driving wells upon their lands, and even ten miles away from 
 the river they could strike water at from thirty to forty feet and 
 close to the river at fifteen to twenty feet by simply driving a pipe 
 down with a perforated point to that depth, and there would be an 
 inexhaustible supply of water for their use. 
 
 3057 It was the policy of the company not to induce settlers to 
 go beyond a certain point, which at that time was Larned. 
 
 It was supposed that by advancing the settlements in closed ranks 
 it would be much safer for the settlers than to isolate them too far 
 out, on account of the dry condition of the country. But the time 
 came, perhaps in the years 1876 and 1877, when the company was 
 actually forced to open up the western part of its land grant as far as 
 Dodge City and beyond it, because homesteaders who were taking 
 up the Government land had scattered all abroad and they were 
 anxious and the county officials were anxious that the railroad com- 
 pany should put its land in this county upon the market as well. 
 The railroad company owned within the belt of its grant alternate 
 sections, the alternate sections in each township being the odd 
 
 3058 numbered sections, and the Government retained the even 
 numbers. I should think, so far as I can remember, that the 
 
 company commenced extending the sale of its lands west of Dodge 
 City in about the year 1880. I frequently had to travel along the 
 river and cross it at many points, usually with intending settlers. I 
 crossed the river at Wichita, I crossed it at Hutchinson, at Sterling, 
 at Elliuwood, at Great Bend, at Larned and at Kinsley, and as a rule 
 the river was then easily fordable. Most generally we crossed the 
 river in wagons, before bridges were built at these several points, 
 without any difficulty whatever, only occasionally we would have to 
 cross a channel on either one or the other side of the river, but never 
 with any difficulty. As a rule the river was dry and you could 
 pass over it almost dry shod. In fact you could see the tracks of 
 horses and wagons and men over the bed of sand from one bank to 
 the other. I have seen the river absolutely dry for long distances 
 at Hutchinson and at points west of there so far as I had 
 
 3059 business to go. The bed was almost always so. I remember 
 very few instances where we had to postpone or give up the 
 
 crossing of the river on account of high water in it. The river was 
 a sandy run. In some places the sand was dry, where it was high. 
 Where the sand had been piled up it was absolutely dry, and in 
 some other spots it was moister. You would sink in perhaps a few 
 inches into the moist sand, and then at some points there were water 
 puddles collected, and then probably on one side or the other there 
 was a narrow channel where the water would run, but frequently 
 there were not even those to be seen. 
 
 After 1880 my visits along the Arkansas river were very infre- 
 quent, because my work was then abroad. I only went over the 
 
870 
 
 THE STATE OF KANSAS Vs. 
 
 road when I happened to come over to this country occasionally, 
 and I didn’t make any very close observations then. I generally 
 ran along the railroad to some certain point in New Mexico 
 
 3060 or Colorado. 
 
 The tributaries of the Arkansas river west of Newton were 
 frequently high and augmented the flow of water in the main river. 
 There was especially the Little Arkansas, with its tributary, Turkey 
 creek. They carried quite a large volume of water, and I think 
 that tributary was chiefly responsible for the high water in the vi- 
 cinity of Wichita occasionally. I remember a water mill at Hal- 
 stead, which was on the main line right eight miles west of Newton. 
 That was three times washed away, until it was finally replaced by 
 a steam plant some distance back from the creek. I frequently in 
 trying to cross the Arkansas river and Turkey creek had to make a 
 detour to get across. There were no bridges there. 
 
 The next stream to the Walnut is the Pawnee, which empties into 
 the Arkansas at Larned. Very frequently at Larned you would see 
 the vicinity of the town under water from the overflow of the Paw- 
 nee, and the same condition existed along the Arkansas between 
 Wichita and Newton. We had a large body of land there. It was 
 rather level and low and flat. It was frequently under water. 
 
 3061 I don’t know of any other stream that would affect the river 
 very materially except those three — the Little Arkansas, the 
 
 Walnut at Great Bend and the Pawnee at Larned — -and these 
 streams have their rise within a comparatively few miles of the Ar- 
 kansas river, north, in the State of Kansas, and the high waters that 
 I noticed usually came from the rainfall. I should judge I was di- 
 rectly official in settling about twenty-five thousand people in that 
 vicinity, of whom fifteen thousand were Mennonites whom I brought 
 from southern Russia and who are still there, largely increased. 
 
 3062 The Bessemer ditch has its headgate at a point about eleven 
 miles west of Pueblo on the Arkansas river, and it runs from 
 
 there in a meandering course for a distance of forty three miles east- 
 ward along the south side of the river. Its appropriation dates back 
 to 1887. It crosses the south side of the city of Pueblo at a point, I 
 should think, about a mile south of the Arkansas river, and crosses 
 the steel works yards. The water is decreed for irrigating and do- 
 mestic purposes only, and the land irrigated thereunder drains to 
 the Arkansas. I have had occasion to notice the seepage or return 
 waters. The main ditch at no point is farther than two miles from 
 the river, and all the depressions or arroyos are now running seep- 
 age water back into the river. The discharge of this seepage? 
 
 3063 water into the river has increased from year to year. When 
 I first came here about ten years ago very little of that water 
 
 could be seen in any of the arroyos, but now since nearly all of those' 
 lands are in cultivation the seepage has increased very largely. We 
 took occasion some three years ago to ascertain what proportion or 
 how many cubic feet per second of this water was turned back to- 
 the river in that way. Mr. J. S. Green, who is an engineer in this 
 
THE STATE OF COLORADO ET AL. 
 
 871 
 
 city, and who has at one time been State engineer, undertook that 
 work, and he makes his calculations and reports to us that about 
 seventy cubic feet per second was turned back into the river of the 
 water that 'was turned into the ditch. We did that for the purpose, 
 if possible, of reclaiming that water for our headgate, although we 
 have not made a very serious attempt to do that yet, because it seems 
 to be very problematical as to whether we will succeed or not. 
 
 3064 There is a body of land along the bluffs just east of town 
 here perhaps from two to five miles, which lands have been 
 
 submerged to a great extent by the water, and the owners charge 
 that it is in consequence of seepage water from the Bessemer ditch, or 
 rather from the lands irrigated by the ditch. The ditch at that 
 point is probably a mile and a quarter or a mile and a half distant 
 from those lands, and it was finished in 1889 and operated in 1890, 
 and it seems that the damage didn’t attract attention until some four 
 years ago — 1899 or 1900 — when these people commenced suit against 
 the ditch company for damages to their land by seepage water. I 
 came here in 1895, and it was then apparent. That was five years 
 after the ditch had been put in operation. 
 
 Cross-examination. 
 
 By Mr. Ashbaugh : 
 
 3065 I have been a director of the Bessemer Ditch Company for 
 nine years now. I represent the eastern stockholders in it. 
 
 The kind of literature that 1 prepared in describing the lands in 
 Kansas is the kind of literature that is usually prepared for such pur- 
 poses. We didn’t dwell particularly upon any description of the Ar- 
 kansas river as a dry river with no water in it. We didn’t do that be- 
 cause it was a matter that would have to be ascertained. At that period 
 when I commenced my work I didn’t know the character of the river 
 thoroughly. 1 began to write my literature as soon as I came 
 
 3066 there on the basis of the literature that I found there. I went 
 to London in 1879 and continued my work with the Germans, 
 
 as I speak their language. As to whether I told them that the Ar- 
 kansas river is a dry river, 1 will say it is very difficult to remem- 
 ber just what I did say about the river. And as to it being a dry 
 river — well, I of course had to dispose of the lands of the Santa Fe 
 company. No sir, I don’t know that I did emphatically tell my 
 friends in Europe that the Arkansas river was a dry river, unless I 
 was asked. We had a map showing it to be a river, and we called 
 it a river, and most of the time it was dry and a bed of sand. 
 
 As to the way I induced those people to settle at Ellin wood whom 
 we called Mennonites — well, most of the Mennonites didn’t settle 
 along the Arkansas ; they settled in Marion and McPherson 
 
 3067 aud Harvey counties. A good deal of Harvey county is in 
 the valley of the Arkansas river, and also McPherson county. 
 
 As to whether I told those people honestly and fairly that that was 
 a dry river — well, the people, before they came to that country, re- 
 
872 
 
 THE STATE OF KANSAS VS. 
 
 ferring particularly to the Mennonites, they had a delegation of 
 seven of their most trusted clergymen come over here to explore 
 that country before they came over to settle. They knew, and as to 
 the condition of the river being a dry stream, they would ask the 
 question in their letters. Other intending immigrants would ask 
 what the water supply was, and I would tell them that anywhere 
 through the Arkansas valley the people could obtain their domestic 
 water by simply driving iron pipes to a depth of fifteen to 
 3068 twenty feet. The water level where they found the water in 
 these wells would be below the water level in the river, 
 naturally. It is more than I can tell where the water comes from 
 that we found in those wells. It was supposed to come from the 
 underflow of the Arkansas river, the bottom being sandy. (Objec- 
 tion.) In fact we told in our literature — we spoke of that fact, that 
 for many miles on either side of the bank of the river the soil was 
 permeated with water, and it was naturally supposed at that time 
 that there was an underflow from the Arkansas river. No one dis- 
 puted that within my knowledge. If there was any underflow there 
 I should think they would get it from the Arkansas river. My ob- 
 servation didn’t reach beyond Dodge City in respect to getting water 
 in the valley, and I know that was a fact this side of Dodge City 
 at Offerle and Kinsley. The water that came into the wells in 
 the Arkansas valley at Kinsley, Offerle and Dodge City must 
 have come from the underflow of the Arkansas river. 
 
 3070 There is no tributary of the Arkansas river in the State 
 of Kansas that had anything like a perennial flow, west of 
 
 Larned. In the best of faith and on the best information we could 
 get I told those people that they could always find a supply of water 
 from the underflow of the Arkansas river, and I presume others did 
 the same thing. The lands of the Santa Fe Railroad Company 
 were largely built up because of the fact that there was at some times 
 water in the Arkansas river, and when it was low there was always 
 water in the underflow; but most of our settlers kept away from 
 the immediate vicinity of the Arkansas river. They preferred to 
 go upon the upland where they could produce the largest crops of 
 wheat, that being better for wheat than the river valley. I have 
 not been down there for some years. 
 
 3071 The original grant to the Santa Fe Railroad Company was 
 ten miles on either side of the track, and they received an 
 
 indemnity grant of an additional ten miles on each side to a point 
 as far as Dodge City. This grant was originally from the Govern- 
 ment to the State of Kansas, and then by the State of Kansas to the 
 Santa Fe Railroad Company. 
 
 As to the condition of the river, I have seen flowing water in the 
 river during the summer time, perhaps in June. I have occasion- 
 ally seen water in the river as late as September. Of course the 
 people there spoke of these rises in the river as the “spring rise.” 
 No other term was used. A June rise would be about the same 
 
the; state of Colorado et al. 
 
 873 
 
 period, and that was what the people settling there meant by 
 
 3072 that term. This June rise would probably last for eight or 
 ten weeks. I don’t suppose that it was sufficient to saturate 
 
 the valley each year back to the foot-hills. There was water perme- 
 ated. There was always water coming down through the tributaries 
 of the river, and from the river direct, and I presume it kept the 
 sand saturated more or less the year round. I never have remem- 
 bered that the people at that time failed to secure water at any time 
 of the year when they drove down a pipe to get it. I never noticed 
 in that connection that at some times of the year they would have 
 to drive further than at other times of the year. I have noticed, 
 though, that the farther back from the river they would go 
 
 3073 the deeper they would have to go for water. 
 
 I was at Kinsley once in the month of March, in 1898, and 
 I noticed a small tract of land of about eight acres of ground be- 
 longing to Jacob Smith where he had shade trees, fruit trees, grape 
 vines, berries of all kinds, and vegetables, and he obtained the 
 water for that with a wind pump, and at that time the water 
 
 3074 was running constantly out of that well, the pipe reaching 
 down nineteen feet. 
 
 In our literature, as to there always being high water in the spring 
 or at some time during the year, we did not particularize to that 
 extent. We were simply to say when the people inquired as to the 
 water that they could get water for domestic purposes in wells any- 
 where along that country by simply sinking those drive wells, and 
 especially in the Arkansas valley. I don’t remember that I ever 
 made any particular point in my literature about there always being 
 high water at some time during the year and generally in the months 
 of May, June and July. I suppose it is to be taken for granted that 
 that country would be a desert if there was no water there. It must 
 have had water there, from my experience, to keep the crops grow- 
 ing, and I presume that this water came from above in the 
 valley. 
 
 3075 I have not made the water supply a very deep study at any 
 time during my work on the Santa Fe road. A great many 
 
 3076 of them who went out there west of Dodge City were obliged 
 to abandon their farms because they couldn’t raise sufficient 
 
 crops. 
 
 The high waters that I spoke of as coming from rainfall may 
 have come from rain storms up above Larned. There are no tribu- 
 taries to the Arkansas river above Larned, but right at Larned the 
 Pawnee river sometimes carries a great deal of water through the 
 territory north of it. I have seen the town of Larned flooded fre- 
 quently. As to the source of supply of the June rises I spoke of, the 
 melting snows in the mountains and upon the plains tributary to 
 the Arkansas river causes that. 
 
 I didn’t know anything of the Bessemer ditch until 1895 
 
 3077 when I came here. 
 
 Q. Then when you say that the priority of the Bessemer 
 
874 
 
 THE STATE OF KANSAS VS. 
 
 ditch dates back to 1887, they must have taken it out after the ditches 
 were dug and in operation in Kansas, did they not? 
 
 A. Yes sir, there were a great many ditches prior to ours, both in 
 Kansas, I suppose, and in Colorado. 
 
 I don’t know that we would raise any objection to people going 
 above us and taking out water and appropriating it for irrigating 
 purposes; but it would probably be very hard for the people who 
 attempted to get water above us to really get it. We couldn’t make 
 any objection if they would get a decree from the State to take the 
 water. Of course it would have to follow the priorities, and we 
 insist upon our priority, and such a party so appropriating water 
 must take what is left and not take ours. In addition to that I may 
 say that even earlier priorities than ours below us have frequently 
 a very hard time to get the water they are entitled to, because it doesn’t 
 seem to reach them, owing to the sandy condition of the river 
 
 3078 bed. That is presumably one of the reasons why the Besse- 
 mer ditch has frequently been under suspicion of stealing 
 
 water, which is almost an impossible thing for us to do. We would 
 get the water we are entitled to and let the balance of the water run 
 down the river, and if it did go down the river the ditches below 
 us would get their water ; but notwithstanding the fact that the 
 water goes down through this city and down the river, it frequently 
 does not reach their headgates. I think there is sufficient water in 
 the river to supply the needs of those ditches, but not their desires ; 
 that is, we could irrigate more land if we had more water. If we 
 had more water I think we could irrigate a great deal more land, 
 and there are times during the season when some ditches don’t get 
 as much water as they really need, because their appropriations of 
 water are too young and other ditches have prior rights to it, 
 
 3079 and because of lack of water. If there was more water we 
 could come more nearly supplying the real needs of the val- 
 ley. It is my view that it is a wise thing to conserve every drop of 
 water in the Arkansas valley that can be properly and legally con- 
 served and applied to that use. I think it would be a very desira- 
 ble matter from the standpoint of national economy if we could 
 
 retain all the flood waters that come down this river in reser- 
 
 3080 voirs. I don’t know from my personal observation of any 
 reservoir sites, but I learn from reports from other people 
 
 that occasionally say that they know of a place where water can be 
 impounded properly and without too great an expense. 
 
 I don’t think it is always necessary to have a reservoir right near 
 the ditch which it supplies if there are means of carrying the water. 
 They may be divided by a great many miles profitably, and they 
 are so divided. That is practiced right here in one very noted 
 instance in Colorado. The Twin Lakes reservoir is something like 
 one hundred and fifty miles above the Bob Creek ditch , which 
 
 3081 it supplies. The State engineer claims to have. found a just 
 ruling as to the amount of seepage and evaporation so as (o 
 
 estimate the amount of water that you may take out and give the 
 
THE STATE OF COLORADO ET AL. 
 
 875 
 
 amount that is turned in. The estimates of the engineers vary in 
 respect to the amount of water that is lost by seepage and evapora- 
 tion and vary all the way from five to fifty percent, for a given dis- 
 tance. There can be no objection to having the reservoir up the 
 river from the canal which it supplies if they have means of carry- 
 ing the water to where it is needed, from the reservoir. 
 
 We have reservoirs in the eastern part of the State and extending 
 into Kansas that are entitled to the waters from floods only, and so 
 far as I am informed they have never yet secured sufficient 
 
 3082 water for their reservoirs to make them of use for irrigation. 
 I don’t know myself, of any authentic report or any careful 
 
 survey made of the Arkansas river from Garden City, for instance, 
 to the foot-hills of the mountains to ascertain the amount of water 
 and the available reservoir sites and the number of acres of irriga- 
 ble land yet to be brought under irrigation. I believe it would be 
 to the great advantage of this State as well as of other States to have 
 such a survey made. 
 
 Redirect examination. 
 
 By Mr. Hayt : 
 
 In regard to the circulars and advertisements to induce settlers to 
 come into Kansas, which we sent out, and particularly directed to 
 the water supply, I would say that we referred simply to making 
 drive wells, as we called them. That was the main feature we kept 
 before the people in reference to their getting their domestic water 
 supply ; and as to the maps referred to, they were usually 
 
 3083 based upon the Government survey and maps, even to that 
 extent that sometimes according to the Government survey 
 
 the south bank of the Arkansas river would run across the north 
 bank of it; and we made no effort or attempt to show the river to 
 be other than it actually appeared to be. We had to get the map 
 out very carefully because it affected the acreage of the tracts of 
 land through which the river ran. I don’t know that we ever dwelt 
 upon the underflow as an argument, and as to the question of sub- 
 irrigation, that never entered into our work so long as I was with 
 the Santa Fe road, nor did I hear it mentioned in those years by 
 anyone, and not until quite lately. Since I have been in 
 
 3084 Pueblo an attempt has been made at sub-irrigation. 
 
 Those settlers who preferred to locate upon the uplands, 
 got their domestic water by drive wells as well. After settlement 
 became dense a great deal of the water that fell from rains back in 
 the high lands was retained there, but before the settlement the 
 water would rapidly flow away through the draws into the river and 
 very little of it at that time sank into the ground, but some part 
 might have, because it always refreshed the growth of the vegeta- 
 tion. I think that generally flowed into the river. The soil before 
 the ground was being cultivated was pretty hard and tough and it 
 would be difficult for the water to penetrate it. The water that fell 
 
876 
 
 THE STATE OF KANSAS VS. 
 
 upon the sand bills south of Dodge would sink into the 
 
 3085 ground, of course, and I think that went to supply the ground 
 water of the country. I don’t know as a matter of fact 
 
 whether the level of the water away from the river was lower than 
 the water in the river. (Objection.) The source of the water about 
 Larned and below — although I had never seen the Rocky mountains 
 at that time — I stated came from the melting snow, and 1 added, 
 too, that it must have come from the melting snow in the mountains 
 and upon the plains ; and they had rains, of course ; but the 
 
 3086 spring water presumably came from the melting snows. 
 
 Redirect examination. 
 
 By Mr. Ashbaugh : 
 
 The western part of the land in that whole country along the 
 Arkansas river was very hard on top before it was broken up. 
 Buffaloes had been ranging over it for ages, and it was so hard 
 
 3087 that water could penetrate it only to a slight extent. After 
 it was broken up very much more rain would be absorbed by 
 
 the ground than before the sod was broken, and before the sod was 
 broken very much more of the rain that fell in that country would 
 run right down along the sod and into the river than after the sod 
 was broken. 
 
 3088 Harley Sanderson, Pueblo, Colorado. 
 
 Direct examination. 
 
 Bv Mr. Dawson : 
 
 I am seventy-eight years of age and live in Pueblo and have lived 
 in this locality since 1871. I am a brother of the Sanderson who in 
 the early days ran the stages across the plains, the firm being known 
 as Barlow & Sanderson. I had occasion to be on the Arkansas river 
 in Kansas in 1866, and we ran from Junction City up the river as 
 soon as we struck it to Bent’s old fort and there left the river and 
 went south. I was there from July until the next April. We 
 
 3089 moved onto that road in July, 1866. We were making trips 
 up and down the river between these points, and I went over 
 
 that road during that summer a number of times, staging. The 
 river was dry in a good many places that year. There was no water 
 in the river. And I can tell you there was no Bent’s then. It was 
 all Indians then, and we had to — the stages as well as freighters had 
 regular watering places where we camped. There were no build- 
 ings. We carried our own “ grub ” and cooked it at those watering 
 places, and you would see riding along on the stage any number of 
 dry places in the river, that is, where there was no running stream — 
 dry sand. There was no time during the summer when from rains 
 or other causes there would be a flowing stream while I was there. 
 
tftE STATIC OF COLOR A 1)0 FT At. 
 
 m 
 
 1 came onto the river, as you might say, in July, and from July 
 until the next April there was no running water all the way down 
 the river. I have had no opportunity to observe it since 1866, as I 
 left there entirely. 
 
 Cross-examination. 
 
 By Mr. Ashbaugh : 
 
 3090 We crossed over from Junction City to Dodge City, and I 
 didn’t mean to state in mv direct examination that I came 
 up the Arkansas river all the way from Junction City. There was 
 no high water in July, 1866. I don’t know whether there had been 
 before that or not. I don’t know anything about the river only that 
 summer. I never tried to dig for water in the sand. There was 
 water in places — holes or ponds — where we and the freighters 
 stopped. 
 
 3092 William A. Watson, Pueblo, Colorado. 
 
 Direct examination. 
 
 By Mr. Dawson : 
 
 I live in Custer county, just west of the Pueblo county line, and 
 have lived in this part of Colorado since the 6th day of June, 1863. 
 I came here from Missouri overland, by ox team. I came in the 
 spring of 1863 from Kansas City and struck the Arkansas river 
 where the old Santa Fe trail intersects the river, I think some- 
 
 3093 where below Great Bend, and from there we followed the 
 course of the river in coming up, in the month of May, and 
 
 we reached Pueblo on the 6th day of June. The flow of water in 
 the river for some one or two hundred miles west of the point where 
 we struck it was very low. We found stretches of the river where 
 there wasn’t any running water on the surface. We would strike 
 pools along there that there would be water in and other places 
 there wasn’t any, but we struck a constantly flowing stream at old 
 Fort Lyon, and from Fort Lyon to Pueblo, so far as I saw 
 
 3094 the river, there was a constantly flowing stream. I haven’t 
 had as good an opportunity to observe the flow of the water 
 
 in the river in Kansas since that time as I had that year, as in 
 making trips in late years I go on the train. 
 
 I have been engaged in the range and cattle business in Colorado 
 for forty years, and am still so engaged, having ranches of cattle in 
 Custer, Pueblo and Fremont counties. 
 
 C ross-ex a m i n a t i on . 
 
 By Mr. Ashbaugh : 
 
 I believe the year 1863 is considered a dry year. There were 
 dryer years, according to my understanding, than 1863, one 
 
 3095 being 1881. I don’t know anything about 1860. I think 
 1863 was dryer than 1864. There was a good deal more rain 
 
m 
 
 (fUE STaTF OF KANSAS V& 
 
 in 1864. We found plenty of water up the river at Fort Lyon, and 
 I supposed it came from the mountains, and I supposed if it didn’t 
 go down into Kansas it might have sunk into the sands. I think 
 it did sink into the sands. I didn’t see any other visible place for 
 it to go. 
 
 Redirect examination. 
 
 By Mr. Dawson : 
 
 3096 I have held the office of county commissioner in my county. 
 I saw the Arkansas river earlier than 1863. I was on it dur- 
 ing the month of July, 1862, and the month of October I was on it 
 from the old Aubrey crossing down to where the Santa Fe trail left 
 it. I think this point is somewhere below Great Bend. During the 
 month of October as we went back up the river it was comparatively 
 
 dry in that section of the country. We found places where 
 
 3097 there was no surface stream flowing. In July, however, there 
 was a pretty fair flow. There are no other years in which 
 
 I was familiar with the Arkansas river in Kansas and its flow. 
 
 Recross-examination. 
 
 By Mr. Ashbaugh : 
 
 By “ a pretty fair flow ” in July I meant to say it seemed to cover 
 most of the sand bars. I couldn’t say how long that high water 
 lasted. I was on the river principally for the month of July and 
 the high water lasted all the time I was there. 
 
 3098 Henry H. Bourne, Pueblo, Colorado. 
 
 Direct examination. 
 
 By Mr. Dawson: 
 
 I am sixty-seven years of age and reside now in Pueblo. I came 
 first on the Arkansas river in about 1873. I was along the river at 
 different places from Wichita west clear up to the Tennessee pass, 
 and every two or three years, I can say, and sometimes every year, 
 I travelled up and down that river for the Santa Fe road and the 
 Rock Island road, prospecting, for as much, I guess, as twenty odd 
 years. I first commenced working in 1873 for the Kansas 
 
 3099 Midland, which was afterwards sold to the Santa Fe. I was 
 employed as chief engineer to prospect for anything that 
 
 would make freight for the railroad, such as building stones, 
 clays, etc., and gave my attention mostly to clays, limestone, 
 coal and cements, and have been engaged in looking after cement 
 property in this State. I was connected for a while witli the 
 Portland cement works in Fremont count}', and I was engaged in 
 principally the same business for the Rock Island road as for the 
 
^Me sTATte of? dotoHAbo El? aL. 
 
 m 
 
 Santa Fe. There was one year that I remember well between 1873 
 and 1878 when I was prospecting from Great Bend along up as far 
 as Garden City, I think to a little town called Aubrey. That 
 
 3100 was before the railroad was built. And right along there I 
 either rode or drove with a buggy in the bed of the river. I 
 
 was examining the banks on each side nearly all day, and there was 
 not a bit of water in it. There were a great many times between 
 1873 and 1885 that I had occasion to go along the river, and 
 there was one time when I was working for the Rock Island, 
 the year it was built into Fort Dodge or the year before, that 
 there was a man taking out a large ditch there in the sand 
 below the bed of the river about fifteen miles this side of 
 
 3101 Dodge City. There was no water in the river, and still there 
 was some water in the ditch. I drove from Arkansas City up 
 
 the river at one time with my wife and there was not a bit of water 
 all along in Kansas, and when we got up near Salida and up there 
 there was plenty of water in the river. We remarked it how much 
 water there was up there and there was not a bit in southern Colo- 
 rado and Kansas. 
 
 Cross-examination. 
 
 By Mr. Ashbaugh : 
 
 The first time I saw the river was between 1873 and 1876, and it 
 was a dry year. The grasshoppers were there about that 
 
 3102 time. About the same time I was up on the Republican 
 river, and I think there was water in it. I don’t remember 
 
 now just exactly. I am not sure. Because it was very seldom that 
 the Republican river ever went dry. I couldn’t tell what time of 
 the year it was that I drove up the river as I stated, but I think it 
 was along in the fall of the year some time. I don’t know 
 
 3103 how high the water had been in the spring, but I have seen 
 it outside of its banks many a time. 1 think I have seen it 
 
 out of its banks from 1873 to 1876, but I couldn’t tell how many 
 times, but I suppose half a dozen times within the last twenty-five 
 years, both in Kansas and Colorado, and I have seen it out of its 
 banks there along about Aubrey and Fort Dodge and along 
 
 3104 in there. Aubrey was where Kendall is now. I couldn’t tell 
 you how far the river got out of its banks at the times I saw 
 
 it, but I have seen it out of its banks many times at different points 
 along the river, and at different intervals, both in the spring of the 
 year and later in the season when there would be big freshets, along 
 in May and June, and July sometimes. These places where I have 
 seen it out of its banks were above Larned, and also away down far- 
 ther. I was at Wichita about 1873. I saw the river up 
 
 3105 many a time at Wichita, and pretty low too. I don’t know 
 whether I have seen it dry there or not. I wouldn’t say that 
 
 I have. I think I have seen the Little Arkansas river dry, maybe 
 
880 
 
 THE STATE OF KANSAS VS. 
 
 eight or ten years ago. I may be mistaken as to the name ot 
 
 3106 the stream, but the one I refer to was up north from Hutchin- 
 son. I don’t think I ever saw Cow creek dry. I have been 
 
 on that a good many times and there was always water in it. 1 may 
 be mistaken, but my recollection is that I have seen the Little Ar- 
 kansas dry above Hutchinson. 
 
 The ditch that I referred to was a big ditch that some man was 
 taking out as an experiment. He had some reservoirs there. He 
 was going to a great deal of expense, it seemed to me, at that time, 
 to take the underflow from the river. I can’t give the length of the 
 ditch, but I think it was out anyway a mile and maybe more. I 
 was just at the head of it. There was a reservoir at the head of it 
 and another near or below it. He dug a big reservoir and 
 
 3107 found water there and ran the ditch down farther. I don’t 
 remember how much water there was in it. The experiment 
 
 was as to whether they could find water there in the valley and 
 whether they could make a success of that. I never followed it up 
 to learn whether they made a success of it or not. They found 
 water there and it didn’t come from the river directly ; it came from 
 the underflow, that is right. 
 
 3109 S. S. Smith, Pueblo, Colorado. 
 
 Direct examination. 
 
 By Mr. Hayt: 
 
 I have resided in Pueblo since 1860 and first saw the Arkansas 
 river in 1858 when I was coming out to this country. I think we 
 struck the river first at the Cimarron crossing. I think there were 
 two crossings there ; one was called Aubrey and one the Cimarron, 
 and I am referring to the upper crossing. I was along the river 
 again in 1859 and 1862. 
 
 3110 We started to come to this country in 1858, and I got out 
 as far as the Cimarron crossing and concluded I would go 
 
 back, and then in the spring of 1860 I came out again, and on those 
 two trips I saw quite a number of places along the Arkansas river, 
 and in after times we were going down buffalo hunting at different 
 points along the river. There was no particular place, but we would 
 go along until we struck some buffaloes. There were no settlements 
 in those days. We started in about Rocky Ford, and from there on 
 down the river until we struck buffaloes. Sometimes we struck 
 them quicker than at other times, and we went down as far as 
 
 3111 Dodge City, or rather Fort Dodge, as there was no Dodge City 
 then. We could go down, I expect, a hundred miles from 
 
 Rocky Ford if we didn’t strike buffaloes before that. Sometimes 
 we would and sometimes we wouldn’t. We were in the habit of 
 camping along the river during these hunts. It would depend on 
 how far we went as to how long we stayed. Time was nothing to 
 us and we paid no particular attention to it. 
 
THE STATIC OF COLORADO ET AL 
 
 881 
 
 In 1858 when we struck the river at Cimarron we camped there. 
 When I got aboard the stage we had to dig quite a little bit to get 
 water enough for the- teams. Then they ran the stage from Fort 
 Union to Council Grove, and as they had to carry along extra ani- 
 mals the consequence was they had quite a number of them and 
 there was not enough water for them anywhere we could find, only 
 to dig a hole. I know that because we camped there that night and 
 waited for the stage to come in. These holes were dug in the sand 
 in the bed of the stream. 
 
 3112 Q. There was no running water in the stream, as I under- 
 stand ? 
 
 A. Yes, at that place. 
 
 In the years 1859, 1860, 1861 and 1862, as a general thing the 
 water would be pretty low in the fall, say from August to Septem- 
 ber, or ma}' be into the next month, and there was often not a bit 
 of water only in pools. Once in a while we would strike a place 
 where there was water, but as a general thing there wasn’t any in 
 the river. There were a good many places there where there was 
 water in pools, and then again there wouldn’t be any and we would 
 have to go too far or something of that kind and would have to dig. 
 There seemed to be always water in the bed of the river if we could 
 dig down to it. I couldn’t say how far we travelled at any one time 
 without finding running water. There were no settlements down 
 there and we were just roaming along and sometimes we would 
 
 3113 make longer journeys and sometimes shorter ones. When we 
 would strike a place where there was water, time was nothing 
 
 to us. We would camp and hunt buffaloes, and as soon as we 
 got a load we would come home. We arranged our camps with 
 reference to these pools. 
 
 I was down there again some time in the ’60’s, but I am not cer- 
 tain about the year, and that is about the last buffalo hunting we 
 did. On the last trip that I made we went over to Kit Carson when 
 they were building that railroad. I think that was in 1871. That 
 is the last time. The last trip we made we went down the river 
 some considerable distance to get water and camped there until the 
 next day and hauled the water out with us going over to Kit 
 
 3114 Carson because there is a desert between those points. We 
 went down the river a considerable distance to find one of 
 
 those pools. In doing so we drove right along down the river. 
 We had been at Las Animas, and there was a little water there, but 
 where we left the river about twenty miles below Las Animas there 
 was not a drop of water. 
 
 Cross-examination. 
 
 By Mr. Ashbaugh: 
 
 It was about the last of September, 1858, that I was at Cimarron 
 crossing when I didn’t find any water in the river. I was 
 
 3115 there again in the spring of 1859 and there was very little 
 water. I think that was in April. I got to Pueblo on the 
 
 56 — 7 
 
THE STATE OE kA^SAS VS. 
 
 25th of May. We went down to hunt some buffaloes, and We got 
 buffaloes and found places where there was running water and found 
 some places where there was no water. I was not there in May, 
 June or July during the period when the usual high water went 
 down the river. I know there was high water here at Pueblo. 
 Where it went I couldn’t tell. I don’t think I ever saw any 
 
 3116 high water in Kansas. I was not there, perhaps, when the 
 high water would get there, but to tny knowledge I never 
 
 saw any water to amount to anything running in the Arkansas 
 river in Kansas. When I was there I was there in September and 
 in April, and you can draw your own conclusions. 
 
 Rocky Ford, Colorado, Dec. 16-17, 1904. 
 
 3117 William G. Gobin, Rocky Ford, Colorado. 
 
 Direct examination. 
 
 By Mr. Hayt : 
 
 I am thirty-nine years of age, and a lawyer, and live at Rocky 
 Ford, in Otero county, Colorado. I lived in Kansas from 1877 to 
 about 1884 or 1885, and have lived in Colorado about eighteen 
 years. In Kansas I lived at Wichita and Cheney. I was a farmer 
 then and did some freighting. Cheney is about twenty-six miles 
 west of Wichita, and during those years I passed over the territory 
 from Cheney to Wichita quite often and had an opportunit}^ to see 
 the Arkansas river in that vicinity. I was engaged at one time in 
 running a ferry over the North Jfinnescah river at the point where 
 the town of Marshall once was. That is about twenty-six miles 
 west of Wichita, i ran this ferry during the years 1878 and 1879 or 
 1879 and 1880, and the river was usually up in those years in April, 
 May or June. I lived in Wichita from March 9, 1877, to April, 
 1878. I was a boy in those days, and 1 used to fish, but I 
 
 3119 never attempted to do so in the Big Arkansas, as we call it, 
 except in flood times. Sometimes there were floods. In the 
 
 Little Arkansas, however, I got a number of fish. In flood times, 
 in May or June, there was a great deal more water in the Big river 
 than in the little one, but I think, taking the year round — I know 
 there were seasons of the year when the Little Arkansas apparently 
 had more water in it than the Big Arkansas. I remember that the 
 Government had attempted, apparently to make the Big river nav- 
 igable, or else some individuals. It was reported that the Govern- 
 ment had, and there were willow dams placed in the river diag- 
 onally so as to have a tendency to confine the channel, and I think 
 in dry periods I have seen that channel as narrow, when the 
 
 3120 river was confined, as thirty feet, with probably six inches 
 deep of water. I was more or less familiar with the river 
 
 from 1877 up to probably 1885, and there were seasons when a great 
 deal of rain, and in thosedays all t-hestreams, including the Arkan- 
 
THE STATIC OE COLORADO ET AL. 
 
 883 
 
 sas river, would be up. I have seen it when it was impossible to 
 cross. For instance, in one season I remember the bridge was torn 
 out and it was impossible to cross and we waited several days before 
 we could ford it. At the same time all streams from there west to 
 Kinsley, including the Ninnescah and various creeks, were in the 
 same condition, and then probably there would come along a dry 
 season when all the creeks would be practically dry and the river 
 would be very low, as low as it was in 1877. 
 
 In speaking of the dry season I don’t mean that it occurred every 
 year. The really dry year, if I remember right, was 1882 — along 
 in that time. That year I found all of those rivers practically dry ; 
 and then going back there in 1900, 1901 and 1902 I found there had 
 been moisture and those streams were running again. The 
 
 3121 Arkansas river was running a stream about like I saw it two 
 years before. I didn’t notice much difference in the flow of 
 
 the water between those earlier years from 1877 to 1888 and the 
 times I saw it in 1901 and 1902, with the exception of those streams 
 west. Now, when we first moved to that country the banks of the 
 stream seemed to be more abrupt. The prairie at that time was un- 
 broken. It was covered by very heavy sod and all buffalo grass 
 and blue-stem, and it seemed to me as the land became cultivated 
 it became sandy. There were sandstones and small streams — 
 creeks — running into them. It seems like those streams west, such 
 as the Ninnescah, have filled up several feet. I think that was 
 caused by this cultivation, the land being cultivated and wind 
 storms blowing the sand into them, and also loosening up the soil 
 so that the water would wash it in. But this Ninnescah river 
 seemed to me like it was filling up. It seemed to me that there was 
 not near as much water flowing on the surface in it as there did 
 before. The sands coming into these side streams were carried 
 down into the main river and filled it up. To illustrate: In an 
 early day I know there were holes in the river. Very deep holes. 
 And at places where the creeks emptied into the river there would 
 be very deep holes, as deep as twelve feet, what we used to call duck 
 ponds, and now it is all level and full of sand and the whole river 
 seems to be level and full of sand. In 1893 — it was during that 
 dry season at least in Kansas — I actually saw sandstones right in 
 the bed of the Ninnescah river and not a particle of water was flow- 
 ing. That is the North Ninnescah. 
 
 3122 I was down there again in 1902 and it seemed to be a wet 
 season and there was a great deal of rain and the river was 
 
 flowing again. However, it didn’t seem to flow like it used to ; that 
 is, it was a level sand bed. The water was flowing around through 
 the sand where it used to have a more direct channel before it filled 
 up. The Ninnescah rises somewhere in the sand hills south of Gar- 
 den City, I think, and there is no irrigation along it so far as I 
 know. During the years between 1877 and 1885 I was fish- 
 
 3123 ing along the river at times and frequently crossed it and 
 recrossed it in my bare feet. I was a boy and could cross it 
 
884 
 
 THE STATE OF KANSAS VS. 
 
 anywhere. The fishing I did was principally in these holes. The 
 rise in the river seemed to be caused by rainfall, and I heard it 
 mentioned in those days that it was caused by melting snows in the 
 mountains in Colorado. I think they considered it rose from both 
 causes, but that coming under my direct observation was from rain- 
 fall in that immediate vicinity. 
 
 We located in 1878 between the North and South ilfinnescah 
 rivers. Those years were yet. If I remember right 1878 
 
 3124 and 1879 were very wet. I remember this prairie became so 
 saturated with water that a horse couldn’t be ridden over the 
 
 land without in the depressions he would sink into the ground, so 
 that I was compelled to carry a twenty -five pound sack of flour 
 home three miles because it w T as not safe to take a horse on the 
 prairie. At that time we had a well that was dug at sixteen feet 
 deep and the water came within eight feet of the top. After these 
 dry periods came on — I think it began to get a little dryer and dryer 
 after 1879 — the water began to sink in the well and we finally dug 
 that well to a depth of thirty-four feet before we got sufficient water 
 for our stock ; and as the water in the well went down the creeks 
 dried up and the river dried up and it continued in that way for 
 several years. It being very dry, we raised very poor crops. Then 
 there were several years when there was a little more moisture; and 
 then the water vyould rise in the w T ell ; but we never dug deeper 
 than that. When the water would rise in the well rivers would 
 have more water. I noticed in 1901 and 1902 — I was down there 
 both times — the water again had risen to about its original ex level 
 and the streams seemed to be about the same, with the exception 
 that they were filled up with sand and the flow was not as 
 
 3125 swift, apparently, and the channel was not the same as it was 
 before. The variation of the water in that well between 
 
 those periods was about twenty-four feet between the extreme low 
 time and the extreme high time. Land has become much more 
 valuable and more productive there, in later years as compared 
 with earlier years. I don’t know whether it is more productive or 
 not, but the people are more prosperous and land is much more 
 valuable than it was in the early days. To illustrate: In 1884 I 
 bought eighty acres of land, although I was a boy, for $400. It was 
 bought in my father’s name. In 1902, I believe it was Walters 
 who bought it, and paid $1800. 
 
 I think the water in the wells and in the streams in that vicinity 
 depended upon local conditions as to the rainfall. (Objec- 
 
 3126 tion.) That is the conclusion I meant to be drawn from my 
 statement. (Objection.) 
 
 Cross-examination. 
 
 By Mr. Ashbaugh : 
 
 I went to Wichita first on March 9, 1877. I don’t think 
 
 3127 there was any particular high water in the Arkansas river 
 then. I don’t remember any particular flood at that time. 
 
THE STATE OF COLORADO ET AL. 
 
 885 
 
 There was one year that the Little Arkansas river flooded over the 
 city of Wichita it became so high, but this flood was not in the Big 
 Arkansas river. I didn’t notice .whether the flood came down the 
 Big Arkansas and backed up tbe Little Arkansas and then 
 
 3128 overflowed the town. I never went up to the bridge when it 
 flowed down. I wouldn’t testify, however, that it wouldn’t. 
 
 I don’t believe there was any year during my residence in Wichita 
 but what at the lowest stage of water the river became as low 
 as about thirty feet wide and six inches deep. There was a bridge 
 across the river at Douglas Ave. when I was there. It was a wooden 
 bridge. They have built a new one now. I don’t remember when 
 that was built, but it was built after I came away. The new 
 
 3129 bridge was built after 1885, I think, or else it was repaired. 
 At any rate it don’t look like the same bridge to me. The 
 
 old original bridge was pretty nearly washed out at one time 
 by a flood. I know we were compelled to ford tbe river for quite a 
 while when we were freighting. I think the present bridge is 
 a wooden bridge, but I have not crossed it, but I crossed on tbe rail- 
 road bridge below and looked up that way. Whatever kind 
 of a bridge is across there now I think it was built after 1885. It 
 was made over anyway. I don’t think there is much differ- 
 
 3130 ence in the width of the banks. They have filled in some on 
 both sides apparently. I have seen the time in those earlier 
 
 3 'ears when there was more water in the Little Arkansas than the 
 Big Arkansas, I think every }^ear. I don’t know how big a river 
 the Little Arkansas is. Where I used to wander along the river the 
 bank was all on the south side, along where that bed caved in. The 
 Little River was fifty, one hundred or five hundred feet wide, either 
 one, just as you want to call it. I think I have seen the Big 
 
 3131 Arkansas river thirty feet wide and six inches deep below 
 the mouth of the Little Arkansas, and I think that very year 
 
 I was there it got that low. 
 
 Referring to Complainant’s Exhibit A-l, I would say that it 
 doesn’t look to me like the old bridge. It might be if it was worked 
 over. That doesn’t look to me like the bridge that was over 
 the Arkansas river in Wichita in 1877, but it might be. I 
 
 3132 wouldn’t be positive. Exhibit A-l shows the river at a high 
 stage of water. I notice those braces at the lower part of the 
 
 bridge, and these are the bottom braces shown there. I don’t know 
 how far it would be from the surface of the water as shown 
 
 3133 by these lower braces up to the bridge. I don’t think 
 the bridge was as high as fourteen feet above the surface of 
 
 the water at high water in 1877 to 1889. I don’t think it is over six 
 or seven feet from the lower part of that brace up to the bridge as 
 shown in that picture. 
 
 Examining Complainant’s Exhibit A-2, that bridge was built 
 after I left there in 1885, if that is the Douglas Ave. bridge. Here 
 is all I say — I don’t know this bridge shown in Complainant’s 
 
 3134 Exhibit A-2. I don’t think it was there in 1885. I don’t 
 
886 
 
 THIS STATIC OF KANSAS VS. 
 
 think that bridge shown in Exhibit A-2 was there in 1879, 1880 
 or 1881 nor in any year prior to 1885. 
 
 Referring to Complainant’s Exhibit A-3, I don’t recognize it. It 
 might be the Douglas Ave. bridge at Wichita. If Exhibit A-2 is a 
 photograph of the iron bridge across the river at the foot of the 
 Douglas Ave. bridge in the city of Wichita, built in 1879, and 
 
 3135 Exhibit A-3 is also a picture of the same bridge, then I was 
 mistaken about it. The old bridge as shown in Exhibit A-l 
 
 3136 is coming back to me. I think that old bridge looks right, 
 but it is high water, the way it looks to me. ft seems to me 
 
 that during the flood of 1877 — f know the bridge went out — it 
 seems to me it was washed out several times. I would swear that 
 that bridge was washed out during its history ; that is, if this is the 
 bridge on Douglas Ave. — at the end of Douglas Ave. — and that re- 
 mained there from the period of which I am testi fy^ing — several 
 bents have been washed out at differaent times, yes sir. I saw the 
 flood of 1877. I don’t think it came any nearer the bridge than is 
 shown in Exhibit A-l. Not much. The water seemed to be 
 within five or six feet of the bridge. It was very high. I think 
 that flood came within six or seven feet of the bridge floor. I don’t 
 think it came within two feet of it. It might have. I was 
 
 3137 not down there all the time. 
 
 Examining Complainant’s Exhibit A-41, it might be the 
 Douglas Ave. bridge at the city of Wichita. I don’t know about 
 the water there now being high water. There seems to be 
 
 3138 some water under the bridge. I can’t state whether the 
 water as shown in Exhibit A-41 is higher or lower than the 
 
 water as shown in Exhibit A-3. I wouldn’t say. In Exhibit A-41 
 it doesn’t show a river to me at all. It don’t show the channel of 
 the river. I am not really familiar with the bridge. These abut- 
 ments look like stone. It looks like some old broken piling 
 there. 
 
 3139 Referring to Exhibit A-3, I have seen the river when it 
 looked as high as there shown. It looks reasonabty high. 
 
 It is not high water, but it is higher than usual. The sand bars 
 shown in the river when it is higher than usual. They show in 
 all stages. I have seen that river when it was as much as half a 
 mile wide, and the sand bars then showed in some places in some 
 islands down there. The sand bars don’t show right in the river 
 when it is at high water. The water as shown in Exhibit 
 
 3140 A-3 is medium. 
 
 I used to think the North Ninnescah in the early days was 
 the larger, but I believe now that the South Ninnescah runs more 
 water. The South Ninnescah gets its supply somewhere in the 
 western part of Kansas, in various streams; but I never was at the 
 head waters of the South Ninnescah. The Ninnescah at Pratt 
 Center is a very small stream. The ferry I had was across the* 
 North Ninnescah. I don’t think the South Ninnescah lias decreased. 
 
THE STATE OF COLORADO ET AL. 
 
 887 
 
 to the extent of the North Ninnescah. I never saw the 
 
 3141 South Ninnescah dry, and I never heard of it being dry. I 
 have seen the North Ninnescah dry so it didn’t flow. The 
 
 3142 North Ninnescah flows between the South Ninnescah and the 
 Arkansas, and the Ninnescah river is naturally higher than 
 
 the Arkansas river. I don’t know that during the dry seasons the 
 South Ninnescah flows as certainly and almost as high as when it 
 is a wet season. Take the dry years of 1893 and 1894, it flowed a 
 very nice stream, and always did. 
 
 By referring to the railroad map just handed me I notice that 
 both the North Ninnescah and South Ninnescah rise pretty 
 
 3146 nearly together; they are not very far apart. In speaking 
 of the land around Cheney I don’t suppose it is more pro- 
 ductive now than it used to be. I didn’t mean to say that the value 
 of land has gone up because of its recent productiveness. The farm- 
 ing is much more thorough and systematic than in the early years, 
 and the farmers have become richer and have more machinery 
 
 and do a better grade of farming than when I went to that 
 
 3147 country. 
 
 Redirect examination. 
 
 By Mr. Hayt: 
 
 I was twelve years of age in 1877 and I didn’t pay much atten- 
 tion to the bridge, I believe if I were to go there now and look it 
 over I could tell ; but the more I look at counsel’s photograph the 
 more plainly the old bridge appears to me, although I never thought 
 I would be questioned about it, but the more I look at it the more 
 it comes to me that I have seen the bridge a number of times; but 
 the photograph was taken in an opposite direction, I think, from 
 what I looked at the bridge. I frequently waded across the river, 
 fishing back and forth, in those early years, and I used to play on 
 the sand bars down there along the river, but I hardly know whether 
 that is an iron or a wooden bridge. As I say, I looked at it from a 
 livery stable there at the end of the bridge, and also was over at 
 the ice plant to get some ice, with my uncle, on the west side. I 
 didn’t cross the bridge, the way we came down there. We went 
 clear back to Cheney on the railroad, and then he drove in with his 
 wagon from Cheney for a load of ice, and I saw the bridge from that 
 direction — the new one — but didn’t pay much attention to it, and 
 I don’t know whether the new one is iron or wooden, nor do 
 3148 I know the year iu which the new bridge was constructed. 
 
 I never saw or heard of any irrigating ditches taking the 
 waters from the Arkansas river. 
 
888 
 
 thh: stath: of Kansas vs. 
 
 3151 H. M. Fosdick, Rocky Ford, Colorado. 
 
 Direct examination. 
 
 By Mr. Dawson : 
 
 I live about eighteen miles west of Rocky Ford, at Fowler, Colo- 
 rado. I am fifty-five years of age, and am in the range stock busi- 
 ness and farming. Fowler is on the river. I saw the Arkansas 
 river in Kansas in 1861. We came to the river from Lawrence with 
 our teams on a publicly travelled road after passing Cow creek. It 
 might have been at Great Bend or it may have been at Hutchinson 
 or somewhere along there. I think it was in the month of 
 
 3152 April. And we came on west from the river at that point. 
 As I remember, it was quite a stream in April and early May 
 
 that year, at least there was a running stream. I saw the river in 
 Kansas again in the year 1870. From the State line I travelled 
 down the Arkansas river as far as Wichita, leaving here in Novem- 
 ber. * The water in the river got less as we proceeded down. It was 
 remarkably less until we got, I think, to Cow creek ; then it was 
 some larger. There was more water in it, but it was remarkably 
 less than it was up here. I was born in 1849. In 1869 I was 20 
 years old and in 1871 I was twenty-one, and that fall I left home, 
 and that was the year I was on the river. I remember we won- 
 dered why the water got less in the river as we went down. The 
 buffalo were down there then and we had great hunting with them, 
 and we would run in there and wade the river. We would walk 
 across the river. We couldn’t pretend to do that up here and we 
 did down there. That is about all I can sav. 
 
 3153 I crossed the river with cattle coming from Texas in 1871 
 at a little village called Park City, a few miles west of 
 
 Wichita, ten or twelve miles, as I recall. We crossed there and 
 followed up the river. That was in August or perhaps the latter 
 part of July. There was some water in the river for cattle where 
 we crossed. Planty of water for the cattle. As we got up farther 
 the water got less. I think after we left Cow creek there was no 
 water sufficient to water the cattle. There was no running water 
 except, as I remember, at Walnut creek. I think that was its name. 
 It came in there and flowed a little water; but that soon lost itself 
 in the sand after it got into the Arkansas, and there was no water 
 in the latter river except in deep holes, and it hadn’t the appearance 
 of having had anv water, because I recollect we found one pool, per- 
 haps as large as this room, and it was filled with cat fish. 
 
 3154 Those were the first fish we had. We came off the range,, 
 coming up the trail, and had nothing but bread, beef and 
 
 coffee. When we found those fish we lit onto them and gathered 
 boxes full, and they made everyone of us sick. They were diseased 
 fish. They were in hot water. I recall that very well. There 
 were stretches along there where there was no flowing water, from 
 
THE STATE OF COLORADO ET AL. 
 
 889 
 
 this last creek, the Walnut I think it is. That is about old Fort 
 Lamed. There was no flowing water from there to Fort Dodge. 
 That creek may be the Pawnee instead of the Walnut. Anyhow it 
 is the creek that comes in near where Fort Larned was then. My 
 recollection is that we found that dry condition of the river, without 
 flowing water, for about fifty or sixty miles, and we came on up into 
 Colorado with the cattle. At the point where we first got into Colo- 
 rado we had no water for a number of days for the cattle. They 
 were suffering very much. At Dodge City the cattle ran 
 
 3155 right off to the river and went into swimming water. They 
 fell over the bank into water and swam. It was full of drift 
 
 and foam at that point. There was a big rise out here somewhere. 
 That was in August. 
 
 I was on the river in 1863. That was a dry year. I didn’t go 
 into Kansas, but the river was very low in Colorado. I was at 
 Booneville, it was called then, but was not down on the eastern 
 borders of Colorado. There was a very small flow of water in the 
 river that year. ] waded it with my boots. I think it was in 1881 
 at Granada, near the State line, at the crossing at the railroad and 
 wagon bridges, I drove in on a road there over to the river and 
 noticed as large a flock of ducks as I ever saw, and there was not 
 water enough for them to swim in at the bridge, but they were 
 
 3156 strung up on the sand bars as thick as they could be. I had 
 a .45 revolver and I walked right down and squatted down 
 
 and when they raised up I killed seven of them with one bullet, 
 and there wasn’t water enough to float them, clear across the river. 
 The river was perhaps sixty or a hundred feet in width, but there 
 wasn’t water enough there to float those ducks, not one. I remem- 
 ber that circumstance. They would have to wade if they went into 
 the water. 
 
 I have noticed the effect the irrigation of lands about Fowler and 
 and this country about Rocky Ford has had upon what was formerly 
 the dry arroyos or waterways that lead toward the river. I think I 
 am now using one hundred and fifty inches of water that is seeped 
 water. It comes out of the ditch. We dug the ditch in 1865 and 
 there was a very small spring, it would perhaps afford a bucket of 
 water — eight or ten quarts — in a day at that time, and that continued 
 from 1865, every spring we would see that little spring when we 
 cleaned it out. Well, after the Oxford ditch was built I kept that 
 ditch in repair up to 1887, then the water began to Increase. In 
 1888 there was considerably more, and in 1887, 1 think, the Arkansas 
 river cut the head of our old ditch out that was constructed in 1865 
 and I didn’t repair it that year. The next year it occurred to me that 
 I might not be compelled to. There was a good deal of water 
 
 3157 coming over the shale from the ditch from the lands irrigated 
 above, and I think at this present time — well, I have a flume 
 
 two feet wide, and it has quite a velocity — quite a fall — and very 
 often I have it just full. That is a twelve inch plank, probably ten 
 inches wide; and every drop of that is seepage or return water and 
 
800 
 
 THE STATE OF KANSAS VS. 
 
 came since the Oxford and Highline ditches were constructed and 
 the upland had been irrigated. I have noticed other arroyos or cuts 
 lying under irrigated lands in many places, but since the water was 
 taken out. Why, anybody knows that. The flow is increased very 
 much in fact in many places now since the irrigation occurred 
 
 3158 there is lots of water where there was no water before. All of 
 the lands irrigated by the water from the Arkansasriver in the 
 
 neighborhood of Fowler and Rocky Ford within the drainage area 
 of the river are so situated that the seepage or return water will nat- 
 urally return to the Arkansas. 
 
 C ross-ex a m i n a t i o n . 
 
 By Mr. Ashbaugh : 
 
 We left Lawrence, Kansas, on the 4th of April, 1861, and came 
 right out with our ox wagons and struck the Arkansas river during 
 the latter part of April. We found quite a stream then. We went 
 up as far as Pueblo and we found quite a stream all the way along. 
 I don’t remember how deep the water was in the river, but I should 
 say a foot, and in some places two or three feet deep. At some bends 
 it may have been two or three feet deep, and anywhere from fifty to 
 a hundred feet wide, I should say, and in some places more than 
 that. 
 
 3159 I don’t remember how wide the river was between the 
 banks at the place I first struck it, but I should think two or 
 
 three hundred feet, and the water spread out half of the way in 
 some places. I went down the river from the State line to Wichita 
 in November, 1870. November is not always one of the low seasons 
 of the year for water. The lowest season varies. If we have fall 
 floods we have a pretty good flow of water in October, November, 
 December and January. If we didn’t have the late summer or fall 
 floods in August and September — and we don’t always have them — 
 the river will get lower and remain lower. 1 should think 
 
 3160 that August and September were the lowest months for water 
 in the river. We found less and less water as we went down 
 
 the river until we struck Cow creek, but what became of that water 
 I don’t know. It didn’t go out on the land ; there were no ditches 
 there. It sank into the sands. We got water for our horses and 
 our camp at this particularly dry time in August, 1871, by digging 
 for it, perhaps a foot. I brought some cattle up in 1871 and struck 
 the river at Park City, which was a rival town of Wichita, and 
 crossed it at Park City. That was on the old Chisholm trail, 
 
 3161 which went up to Newton and Abilene. I think I remember 
 and talked with Mr. McCoy who operated that trail. I am 
 
 not sure about it at that time, but I think I have met him and 
 talked with him since. When we came up the river with those 
 cattle from Park City we found some places where there was no flow- 
 ing water, and then we found a place where the cattle had to 
 
 3162 swim. That was right in the bottom below Fort Dodge 
 We camped at about the end of the Government reservation 
 
THE STATIC OF COLOKADO ET AL. 
 
 891 
 
 We had 2,700 head of cattle there. There is a little creek there 
 known as Coon creek, but I don’t remember of that having any 
 water in it at all. I know there was no running water in it. It fol- 
 lows right along the river. The water where the cattle swam must 
 have been five or six feet deep, right up to the bank. I don’t know 
 how long it lasted, because we had water then and we were not 
 worried about it. Of course we didn’t have that big flood more 
 than perhaps a day or two. I don’t remember that, but I remem- 
 ber the cattle coming into that swimming water; and then we had 
 plenty of water up here to Colorado, and from Dodge City 
 
 3163 up. I don’t know what the condition of the water was up 
 there above Dodge City before that flood came. 
 
 After I dug my ditch in 1865 I didn’t notice any seepage water 
 from it for a number of years. It takes a good while for water to 
 seep through the land so as to be noticed in the arroyos that were 
 dry before. You see that was right close to the river and there was 
 no opportunity for the seepage water from that to appear. The 
 Oxford ditch, I think, was constructed in 1887 or 1888, and per- 
 haps it was within a year after that that the seepage water ap- 
 peared. It was more than a mile from the ditch where I noticed 
 the water, and if it came from the ditch it passed through the soil 
 at the rate of at least a mile a year. If it didn’t come from the 
 ditch it might have come from the irrigation of the land 
 
 3164 between the spring and the canal proper. I haven’t any 
 idea as to how fast water goes through the soil, neither 
 
 have I any idea as to what proportion of the amount that is used in 
 irrigation becomes seepage; and I have made no observations that 
 I would like to put into the record. 
 
 3165 J. W. Beatty, Rocky Ford, Colorado. 
 
 Direct examination. 
 
 By Mr. Hayt : 
 
 I am sixty years of age and live an Manzanola, ten miles west of 
 Rocky Ford, in Otero county, Colorado, and I do a little of every- 
 thing — farming mostly, I reckon. I have resided in Otero county 
 since 1869 and first became acquainted with the Arkansas river in 
 1863 at Pueblo. I never was down farther than Lamar, 
 
 3166 Colorado, in that year. In 1863 I was in the Government 
 employ, driviug a team. We started from Pueblo and drove 
 
 as far as Lamar, Colorado. There wasn’t anything down there only 
 Government headquarters at Fort Lyon. We left Pueblo in De- 
 cember and reached Fort Lyon some time during that month. I 
 don’t remember very much about the river up here, but we stayed 
 there at Fort Lyon for about two or three months and there wasn’t 
 so terribly much water there. You could cross it with a pair of 
 boots at Fort Lyon. The way I remember it, we got after a coon 
 
892 
 
 THE STATIC OF KANSAS VS. 
 
 there and ran it across the river. That was the first one I ever saw 
 in a prairie country. It was not boot-top deep across there at Fort 
 Lyon, and probably about seventy-five feet wide. I think 
 
 3167 we were there until about the first of March. In 1864 I went 
 down as far as Council Grove. I think it was in May, and 
 
 we came back about the first of July. There was water in holes 
 in places and in other places we had to dig in the sand to get water 
 for our mules, and coming back, all the way from Fort Larned 
 to the State line, pretty nearly, it was dry, and as we went 
 down there was no running water; it was standing in holes along 
 the hanks occasionally. I never was through Kansas after 1864 
 except on the train. I have been accustomed to using water for 
 irrigation in Colorado for a number of years, and have noticed 
 that almost all these little dry creeks are running streams 
 
 3168 now that were perfectly dry before the irrigation. There is 
 one up between Nepesta and Fowler called Chicosa creek. 
 
 That is running water all the time. And the next one is the 
 Apishipa creek. Well, Timpas creek was a dry creek too before 
 they commenced irrigating ; and Crooked arroyo, between here and 
 La Junta was dry, and it is now a running stream. I should think 
 that Chicosa creek was about four miles the other side of Fowler, 
 and the Apishipa is about four miles on this side, towards Rock} 7, 
 Ford. That is about thirteen or fourteen miles from here. The 
 next one will be the Timpas creek, and that is down about five miles 
 east of here; and the next one is about nine or ten miles east of 
 Rocky Ford. It is about three miles this side of La Junta. 
 
 3169 I think these streams are running continually the year 
 round, and I expect they run from a foot to five or six cubic 
 
 feet of water in each creek. 
 
 Cross-examination. 
 
 By Mr. Ashbaugh : 
 
 I first noticed these creeks begin to run about three or four years 
 ago. None of them showed any running water before three or four 
 years ago, so far as I know. 
 
 3171 S. W. Cressy, Rocky Ford, Colorado. 
 
 Direct examination. 
 
 By Mr. Dawson : 
 
 I am living at Rocky Ford, Colorado, and have lived in the 
 Arkansas valley since 1891. I think it was 1892 when 1 came to 
 Rocky Ford. I am water commissioner of district No. 17 in division 
 2. and held that position from 1895 up to the spring of 1900, and 
 also from 1903 to the present time. The Holbrook canal came 
 about the time I came to the valley, and also the Highline and 
 
STAlft Ok COLORADO JEO? AL. 
 
 893 
 
 Otero canals, also the Bob Creek canal. My district covers all land 
 irrigated taking water from the west line of Otero county to the 
 mouth of the Purgatoire. Under the Fort Lyon canal there is 
 about fifty-five thousand acres under irrigation; under the 
 
 3172 Holbrook there is about 17,000 acres under irrigation ; under 
 the Catlin in the neighborhood of 18,000 acres; under the 
 
 Rocky Ford about 9,000. The Otero has had but very little irriga- 
 tion since I have been here, on account of the ditch being out of re- 
 pair, and the scarcity of water combined. So that there is very little 
 under direct irrigation under the Otero in the past years. All of 
 this land I have spoken of is within the drainage area of the 
 Arkansas river, and any return waters from irrigation will either go 
 to that river or its tributaries. 
 
 There has been a great deal of increase in seepage and return 
 waters all along this district, and that is apparent on the surface in 
 many places. Starting from the head of the Otero canal at Fowler 
 and all along under the brink of the hill or second bottom to the 
 Apishipa there is a great deal of surface or seepage water finding its 
 way to the surface and back into the river. In the Apishipa, 
 
 3173 which will drain lands under the Oxford Farmers’ canal, and 
 a portion of the land under the Ilighline, the seepage water 
 
 will probably amount, at the railroad bridge, from three and a half 
 to possibly ten feet. Across about north from the mouth of the 
 Apishipa there is a ravine running down from the Bob Greek 
 country — I guess they call it the Bob Creek canal now — and there 
 is quite a bit of seepage finding its way from there. There is a pond 
 there and a small running stream, while possibly not longer ago 
 than seven or eight years it was perfectly dry. In the neighborhood 
 of ten years ago in the lands lying under the Bob Creek canal and 
 farther north or in the drainage area of this draw I speak of the 
 underground water stood within a foot of the top of the ground. It 
 has finally worked its way through and has found its outlet in this 
 draw I speak of, so that under the same lands where it was only a 
 foot from the surface it is in the neighbornood of eight or ten feet 
 from the surface now. Farther up under the Bob creek there are 
 gullies that run water continuously, probably a very small fraction 
 of a cubic foot in each one. 
 
 Coming down to the Patterson hollow, about four or five miles 
 above Rocky Ford, which drains land lying under the Ilighline, 
 the Otero and Catlin ditches, there is a constant flow in certain por- 
 tions of the valley. Above the railroad bridge possibly one half to 
 three quarters of a mile, the waters of the surface are con- 
 
 3174 tinually running; then it sinks underneath and goes under- 
 neath the surface at the railroad crossing, coming up about a 
 
 quarter of a mile below the railroad bridge, and there I would esti- 
 mate there was at least two cubic feet of water ; and immediately 
 up from that under the brink of the hill there is another stream 
 with possibly three quarters of a cubic foot. 
 
 Passing down on the east of Patterson hollow we come to land 
 
894 
 
 TftE STAtfK OE KANSAS V9. 
 
 under the Catlin and also under the Rocky Ford ditches, that has 
 become seeped and has been tiled by the American Beet Sugar 
 Company. The different tile outlets on the American Beet Sugar 
 land will possibly run in the neighborhood of two cubic feet of 
 water. 
 
 Then we come into the slope of Timpas creek, which drains lands 
 from the Rocky Ford, the Catlin, the Otero and the Highline ditches. 
 There is a small natural flow to that stream above irrigation, which 
 I measured in the neighborhood of a month ago and which runs 
 about one cubic foot of water per second of time, clear above irriga- 
 tion. At the railroad bridge east of Rocky Ford on Timpas creek, 
 the seepage or return water from natural seepage will run from ten 
 to twenty feet per second. Under the Fort Lyon canal there are 
 numerous places of swampy and low lands that have seeped out east 
 of La Junta. I am not familiar enough to estimate the amount of 
 that seepage. 
 
 From the drainage of the Holbrook country into Horse creek, 
 which empties into the Arkansas river, there has been within the 
 last few years considerable seepage water breaking out on the 
 
 3175 south slope of Horse creek from irrigation. 
 
 I am familiar with the measurement of water, and have a 
 small Price meter, and I have made some measurements and reports 
 of the seepage water to Professor Carpenter, State engineer of Colo- 
 rado, at different times, and these measurements were made carefully 
 and accurately. The crops raised upon the lands lying under the 
 canals in my district are alfalfa, wheat, oats, sugar beets and canta- 
 loupes, and the market value of the land in this district will run 
 from $30 to $300 an acre. The average value of irrigated lands is 
 possibly $75, and those lands not under irrigation in the same 
 
 3176 locality are practically valueless, with the exception of graz- 
 ing. 1 don’t believe a man can lease for stock purposes and 
 
 pay five cents an acre for a large amount and make it pay, and it 
 would sell, if at all, according to location, from $1 to $2.50 per acre. 
 If the irrigation were stopped in this district the land would go back 
 to its original state and its original value that I have just spoken of 
 for arid lands. No crops can be grown successfully throughout this 
 district without irrigation. The increase from the seepage and re- 
 turn waters in my opinion is still going on and will continue for sev- 
 eral years, as it has been increasing slightly all the time up to the 
 present. If only such an amount of water is put on the soil 
 
 3177 as will go into the soil and not run off, the passage through 
 that soil is so slow that I don’t know when it would come out, 
 
 and of course that would come in with the gradual, slow increase in 
 seepage. This seepage water flows in a large measure the year 
 round, and it does that whether irrigation is going on each month 
 in the year or not, and I think this seepage would have a 
 material effect in keeping up the flow of the water in the stream. 
 We take out water from the river not only at low times but when 
 there is lots of water in it, and if we take it out when the river is 
 
^Re STAtE 6ft COLOR ADD Eb AL. 
 
 §95 
 
 ininiling full and spread it over the land it will have the effect of 
 maintaining the flow of the stream during the dry periods, lower 
 down the stream. I am stating this from my own personal observa- 
 tion. In taking certain crops, like alfalfa, I would say that it 
 
 3178 returns probably in the neighborhood of three tons to the acre. 
 Sugar beets in this immediate vicinity have run from $10 to 
 
 as high as $42 an acre ; winter wheat lias averaged, I think, safely 
 speaking, thirty-five bushels to the acre; oats from fifty to one 
 hundred bushels to the acre; cantaloupes are rather uncertain, 
 but they are a regular and valuable crop here. Cantaloupes have 
 returned up as high as $200 an acre, and possibly some of the early 
 crops more. The sugar beets raised in this district are manufactured 
 into sugar at this point. The company pays to the farmer $5 per 
 ton net; that is, of course, the tare coming out, but regardless of the 
 percentage of sugar; and I think the acreage this last year 
 
 3179 was about 12,000 acres in the valley here, coming to this 
 particular factory, and these are treated at this factory. The 
 
 sugar beets I speak of are raised up and down the valley. I think 
 there is in the neighborhood of 12,000 acres treated at this factory. 
 The Sugar City sugar beet factory gets the beets raised under the 
 Bob Creek canal, as far as I know, entirely, and that canal takes its 
 water from the Arkansas river and is in the Arkansas drainage. 
 Taking the Sugar City sugar beet factory, they probably have in 
 the neighborhood of four or five thousand acres additional. I was 
 not thinking of that factory at the time. The total drainage of all 
 the lands irrigated in my district is back to the river. 
 
 My duties as water commissioner commence with the taking out 
 of the water at the headgate. All of the waters taken through these 
 canals are applied to beneficial purposes, or to the growing of 
 
 3180 crops. My endeavor has been so far as possible to eliminate 
 all waste, and, with my ditches, to only let them turn in so 
 
 much water as they can actually use and not run it through the 
 ditch so that they get more water than the individual farmer really 
 needs — to hold them down to an amount so as to prevent as much 
 waste as possible. The water that men are permitted to use depends 
 upon the needs of the crop. The decree does not necessarily indicate 
 the amount of water that is used out of the river. The latter means 
 the most he is entitled to ; although at times during the flush season 
 he may run a little more than that, but that season will only be not 
 to exceed two months, and often down to as short a period as a month, 
 that the late ditches have a chance to take any water; so that the 
 maximum amount of our decrees in this district represents a great 
 amount of water more than we actually use. 
 
 The Rocky Ford ditch has a decree of 112 feet, and where at 
 times they use the 112 feet during the dry season when the crops 
 are needing the most water, still possibly one half or two thirds of 
 the season they may not be running over seventy or eighty feet 
 and as low down as forty or fifty feet. 
 
856 The STATE oE Kansas Vfl. 
 
 3181 With the older ditches, the Holbrook, with a decree of 155 
 feet, the Highline with a decree of 418 feet and about 50 feet 
 
 additional of early water, a part of the time when they are en- 
 titled to water are only entitled to a small part of that decree, so that 
 the maximum amount of the decrees represents a very much larger 
 amount of water than is actually used. It wouldn’t be a fair test 
 as to the amount of water which is being withdrawn from the river 
 at any given time or for any season to add together the number of 
 feet decreed and the various ditches using the water, as oftentimes 
 the river is so low that the Rocky Ford ditch, with as early a pri- 
 ority as that, can’t get its full amount. 
 
 Cross-examination. 
 
 By Mr. Ashbaugh : 
 
 I have been water commissioner of district No. 17 for nearly 
 seven years, all told. During the last ten years I have beeu water 
 commissioner for seven 3 r ears — three years intervening. My 
 
 3182 district takes in the Arkansas river from near Fowler to the 
 mouth of the Purgatoire — all lands irrigated by ditches tak- 
 ing their water from the west line of Otero county to the mouth of 
 the Purgatoire, near Las Animas. The Holbrook canal is known 
 also as the Laguna or Lake canal. If you should run a straight 
 line north and south through the town of Rocky Ford, commencing 
 from the south and going north, you would cross the following 
 ditches: The Otero, the Catlin, the Rocky Ford, the Holbrook and 
 the Bob Creek, six in all — four on the south side of the river and 
 two on the north side. 
 
 Farther west from a straight line south of Rocky Ford you would 
 come to the Highline, which empties into Dry creek west of a 
 
 3183 line directly south of Rocky Ford. If you should run a 
 line north and south across the Arkansas river at Las Ani- 
 mas, or at the eastern line of my district, you would cross one 
 ditch — the Fort Lyon. All of these ditches are in my district with 
 the exception of the Bob Creek, which is in the district above, and 
 the lands of the Bob Creek canal overlap this district, the same as 
 the lauds irrigated by the Fort Lyon canal overlap district No. 67. 
 
 The seepage, I think, in this district was here before I came, un- 
 less it would be a little ravine draining the lands under the Bob 
 Creek canal, and the ravines west of that and along the Holbrook 
 ditch here. The balance of the seepage, to the best of my knowledge, 
 had started before I came. I think this seepage had become 
 
 3184 noticeable more than ten years ago. I think as long as you 
 irrigate this land up here the seepage will increase. I think 
 
 there is a great amount of seepage or underground water that has 
 not as yet found its way to the river. It is lying underneath the 
 line of the canal on the slope to the river, but has not as yet reached 
 the river. 
 
 Taking the Rocky Ford Highline canal, which is the farthest 
 
Tfifi STATIC OF COLORADO ET AL. 
 
 89? 
 
 ditch south in going south or southwest from here, the seepage from 
 it goes into the Timpas creek, into Dry creek, into Patterson hollow, 
 the Apishipa, the Chicosa, etc. The lands irrigated by the waters 
 from the Rocky Ford Highline lie south and west from the Otero 
 canal. The seepage water from the Rocky Ford Highline passes 
 down under the Otero canal, unless it is in a draw where it finds its 
 way to the surface and by so doing empties into the Otero, as in a 
 case directly west of here the seepage from the Fort Lyon canal has 
 been intercepted by some underground strata of earth or clay and 
 has been brought to the surface and runs on the surface and will 
 empty into the Otero canal. 
 
 8185 The next canal north from the Gatlin canal is the Rocky 
 Ford, and this same condition takes place between the Catlin 
 and the Rocky Ford. There is no other canal between Rocky 
 Ford and the river. As to any part of the seepage waters 
 from the farther canal being taken up by the next one toward 
 the river, this occurs only in cases where there is a draw and the 
 water is forced to the surface before it reaches that ditch. It would 
 furnish a greater amount quicker than the ditches lying back, but 
 in time the seepage from the other ditches will find its way to the 
 river and increase that seepage. 
 
 3186 As to the question of how far down the river any of the 
 seepage water would reach the river, from an investigation 
 
 of the underflow to a certain extent under the lands of the Rocky 
 Ford ditch while I was employed by the American Beet Sugar Com- 
 pany, and as near as I could determine, the underflow was from the 
 southwest to the northeast of the country almost invariably, so that 
 on the north side of the river I have not made any investigation of 
 that kind, but judging from the arroyos or the washouts where the 
 seepage water comes out from the ditches on the north, I would judge 
 it to be from the northwest to the southeast. So that the seepage 
 waters from the Highline, Otero, Catlin and Rocky Ford would 
 probably find their way back to the river not farther east than La 
 Junta. That would be my idea. It would be undoubtedly true 
 that all of the seepage waters from all of the ditches in my district 
 lying south of the river would find their way back into the river 
 west of the Purgatoire. On the north side of the river, from the 
 Holbrook ditch, the seepage water would probably find its 
 
 3187 way back not farther east than the mouth of Horse creek west 
 of Las Animas. The seepage from the Fort Lyon canal from 
 
 the fact that it supplies storage water for the Great Plains Storage 
 Company and for those storage reservoirs irrigating lands east and 
 south of the same, would probably find its way back as far east as 
 the State line. I am not as familiar with the Amity canal and the 
 irrigated lands there as those in my own district. I would judge, 
 possibly, that the seepage waters from the Amity canal would find 
 their way back in the neighborhood of twenty miles east of the State 
 line, or until you came to the first natural water shead or arroyo 
 
 57—7 
 
§98 
 
 THE STATE OF FANS AS VS. 
 
 leading in from the north. The Amity canal does not irrigate any 
 lands in the State of Kansas that I know of. 
 
 As to our attempting to prevent waste water, the real reason that 
 is done is to save as much of the water as we can along the line of 
 the stream and to supply as many decrees as possible. We have to 
 save the waste water because the river here ten to ten and one half 
 months of the year is so low that we haven’t water sufficient 
 
 3188 to supply only the very smallest and first decrees on the river. 
 The months of the year in which we have to exercise the 
 
 greatest precation in this respect are January, February, March and 
 April, to the 15th of May, and sometimes to the first of June. At 
 other times from the first of June to the first of July, or about the 
 fourth of July, as it is generally remarked here, we have plenty of 
 water for everybody and to waste. It is impossible in many of the 
 years to take it for storage or for direct irrigation. Of course there 
 are little exceptions to those dates. It will run from the 15th to 
 the 30th of May, and from that up to the first of June, and then 
 as a rule about the fourth of July we have to shut down the late 
 ditches on account of shortage. We have intermittent floods, 
 lasting a day or two days, from that on through August. As a 
 rule, though, from the middle or fourth of July on through 
 that month and through August, September, October, November 
 and December we are short of water. We are short of 
 
 3189 water for the amount that is really both needed and de- 
 sired for about ten months of the year. We undoubtedly 
 
 through those months could use in the neighborhood of six or seven 
 times the amount of water we have. Maybe more than that. Yes, 
 I think we would, probabl}^ more than that proportion more, from 
 Pueblo to the State line, — more water than we actually have in the 
 river during those months I have mentioned. Of course there is 
 this proportion that makes it hard to determine that exact amount — 
 the fact that if you had water all the time you might not or would 
 not need so much water, so that it makes it rather hard to come to 
 an exact proportion. During the dry season of the year the amount 
 that we have at the present time is probably not over one sixth or 
 one eighth of the amount that we could profitably use during 
 
 3190 those months, figuring on the whole valley from Pueblo to 
 the State line. It is important to have the decree, but it only 
 
 fixes the limit beyond which they have no legal claim, only during 
 high water. Many times more water is claimed by decrees than 
 our actual amount during the whole season, for ten months of the 
 year. It takes us more time to give attention to the decreed amount 
 of appropriations when there is less water than it does when there 
 is a lot of water. Our hardest season is when there is little water 
 and they are all “ scrapping.” When they are all “scrapping” we 
 have to be as careful as possible not to give the ones who have a 
 priority more than their amount, so as to be able to give those who 
 have a subsequent right some water at least, and of course our aim 
 is to give all who have a legal claim as much water as we can up a 
 
THE STATE OF COLORADO ET At. 
 
 m 
 
 degree, and of course so far as I know that is the system of other 
 water commissioners. 
 
 3191 I report, as water commissioner, to the division engineer at 
 Pueblo. The more water we can prevent ditches from tak- 
 ing, or the less water we can prevent them from taking more than 
 their decree — we certainly turn more down the river. The seepage 
 or return waters that reach the river in my district are subject to 
 being turned into the ditches in district No. 67, if you take it below 
 the point of my district. Of course there is a good deal of seepage 
 that comes into my district up here that I use in ditches here hav- 
 ing a prior right to ditches down in the other district, but if it comes 
 in east of the Jones and Riverside or Jones and Town ditch, that is, 
 in Las Animas, — if it comes in east of there then the more seepage 
 water comes in east of there the more passes on down to No. 67. 
 
 We had a very good year in 1904. I think we had more than 
 the average amount of water to turn into the ditches this year, 
 
 3192 and it is an exceedingly good year for water, especially from 
 June on. In the early part of our season it was very low, 
 
 but from the time of the starting of the snow and the rain waters 
 from the mountains we have had an exceedingly good season ; but 
 even this year there was not enough water to supply all the de- 
 mands of ihe ditches all the time. It would be very useful to in- 
 crease that amount of water. Indeed it would. 
 
 Examination By Mr. Campbell : 
 
 Rocky Ford cantaloupes and melons originally were raised in this 
 vicinity and took their name from this town — Rocky Ford. My 
 district is about sixty miles long, and there is about 100,000 acres 
 irrigated from the waters of the Arkansas river. I would have to look 
 it up to be exact. This land is worth about $50 an acre. The 
 
 3193 months when it is most necessary to have water for irrigation 
 purposes are along in June and July. There is less water in 
 
 the river in April than in May and June, and I account for it that 
 in April the snow waters have not commenced to come down 
 
 3194 and the rainy season has not commenced. Since 1885 the 
 irrigated area has increased. With the same amount of water 
 
 now we can irrigate more land profitably than we could a few } ; ears 
 ago. Water is used more intelligently by farmers and you get bet- 
 ter service out of the same amount of water than we did when I first 
 came here. I can’t tell you the percentage of increase in the irri- 
 gated area. I don’t think there is any question hut what with a bet- 
 ter use and more knowledge and more care we can irrigate a greater 
 amount of land with the same amount of water. 
 
 The Fort Lyon ditch, under which there is 55,000 acres of irri- 
 gated land, has a decreed appropriation of 761 second-feet. 
 
 3195 The Great Plains Storage Company enlarged the Fort Lyon 
 canal for reservoir purposes and as so enlarged have water 
 
 up to the amount of 933 second-feet, and my understanding is that 
 
§00 
 
 STATK OF KANSAS 
 
 the Fort Lyon is to take steps to increase their decree ilp to that 
 amount. They oftentimes, if not always, during the latter part of 
 May and June use practically the 933 second-feet. They don’t have 
 the full amount of their decree during the low season. 
 
 Before coming to this district I had about six years’ experience in 
 the northern part of the State around Greeley in irrigation 
 
 3196 work, making my experience over twenty years. I have made 
 a pretty thorough study of irrigation matters. I think that 
 
 the use of water by modern methods could be made more economical 
 and that we could get better results. I don’t think the farmers are 
 using the water to the best advantage from the methods that we now 
 know of. I think there is too much carelessness. This to some ex- 
 tent is the fault of our laws. Under the present conditions 
 
 3197 and the decisions of our coufts water is regarded as personal 
 property. Our courts have decided that a ditch can take a 
 
 decree and do whatever they have a mind to with it. As long as they 
 have a law that is as flexible as that I think there will be 
 
 3198 more or less waste of water. This is my interpretation of the 
 decisions of the courts. I can hardly see how it is in the 
 
 power of the division engineer under the present conditions to utilize 
 the water to any better advantage than it is. 
 
 Redirect examination. 
 
 By Mr. Dawson: 
 
 The arrangement between the Fort Lyon canal and the Great 
 Plains Storage Company whereby the former, in addition to its 671 
 decreed cubic feet of water, could take a quantity which would raise 
 the total to 933 feet per second of time, would not be effective as 
 against any prior appropriator or at any time when there was not a 
 surplus of water in the river to furnish this additional amount. 
 
 3199 When I speak about the water not being used to the best 
 advantage in this district, it is simply upon the theory that 
 
 there is room for improvement in practically every line, and this 
 improvement is being gradually made, even in this water district. 
 
 Rocky Ford has about 3,000 inhabitants, and it draws its supplies 
 from the agricultural pursuits in the irrigated district of which I 
 have been speaking. There are some fruit lands, but I would 
 hardly call them extensive, although there are a great many 
 orchards throughout the district, I should say one to two thousand 
 acres, and these lands are very valuable on the market. I 
 
 3200 don’t think there are any of these orchard lands for sale, 
 although I heard that offers of a couple of hundred dollars 
 
 per acre had been refused. I rather think the orchard lands would 
 bring a bigger price than the other lands spoken of. 
 
THE STATE OF COLORADO ET AL. 
 
 901 
 
 Recross-examination. 
 
 By Mr. Ashbaugh : 
 
 In “ late ” irrigation we use the water to as full an extent as we 
 have water to supply it. It is now generally recognized that late 
 irrigation is more profitable than thought for years ago, and this is 
 for an additional reason also — so as to get a chance to irrigate at all, 
 because we haven’t the water. For instance, take the Holbrook 
 ditch. In the spring of the year they can’t get any water. Right 
 at this particular season of the year it happens to be so that 
 
 3201 they can get water; and as for alfalfa, if they didn’t irrigate 
 this fall, next spring they couldn’t irrigate, on account of the 
 
 scarcity of the water. The ditches that have the prior rights can 
 irrigate, and the ones that have the later appropriations are com- 
 pelled to irrigate at other times of the year when it is a physical 
 impossibility to get water. So the method in my district is to fur- 
 nish water to some of them whenever we can — the prior ones first 
 and the later ones after. If it is possible to give it to the later ones 
 we do it ; and this is carried on through the year until it freezes up, 
 and if it doesn’t freeze, or in a light winter, we carry the irri- 
 
 3202 gation through the winter season. It is a recognized fact 
 that if land can be wetted and it freezes up and thaws out it 
 
 seems to benefit the land. They don’t irrigate so much in the late 
 season of the year under the ditches where the) 7 can get water in 
 the spring, for the reason that they can get water then and they 
 take it when they have it. 
 
 Redirect examination. 
 
 By Mr. Dawson : 
 
 Last year this late irrigation didn’t stop at all. This year it is 
 still continuing. But if we get down to zero weather we practically 
 have to stop. December is the month in which we are most apt to 
 have to stop, but the five years I was in previous to this time I think 
 we generally closed about the middle or 10th of December, 
 
 3203 and then for a month and a half or two months there would 
 be very little doing, and this winter irrigation refers only to 
 
 those ditches that have not an early enough priority to get water in 
 the spring. 
 
 Recross-examination. 
 
 By Mr. Ashbaugh : 
 
 This irrigating “ down to the present time” means down to the 
 16th day of December, 1904, and irrigation doesn’t stop along in 
 this neighborhood until zero weather, which sometimes lasts two or 
 three weeks and sometimes only a week. 
 
 There are two beet sugar factories in this portion of the State, one 
 at Sugar City and one at Rocky Ford, and they are just starting one 
 
902 
 
 THE STATE OF KANSAS VS. 
 
 at Lamar, to be completed for next year’s crop. As to the amount 
 of money invested in these plants, from general information I would 
 say probably $500,000 to $1,000,000 in each plant, according to its 
 size, making probably a couple of million dollars in all. These beets 
 are grown in the Arkansas valley and could not be grown with- 
 3205 out irrigation. The Rocky Ford factory is what is called a 
 1000-ton factory per day and the Sugar City factory is a 500- 
 ton factory and the one at Lamar is about a 500-ton factory. 
 
 Examination by Mr. Campbell: 
 
 By a thousand tons per day I do not mean for the whole year 
 round. They start about the first or middle of October and may 
 run, if they have a sufficient crop, until about March. Yes, I testi- 
 fied that there were about 10,000 acres of sugar beets raised here 
 this year for the Rocky Ford factory, and I think the yield will run 
 beyond ten tons per acre this year, and this crop will run the fac- 
 tory for 120 to 150 da vs. 
 
 3207 Humphrey Best, Rocky Ford, Colorado. 
 
 Direct examination. 
 
 By Mr. Dawson : 
 
 I reside at Rocky Ford and have lived in this country close to 
 thirty-five years. At one time I had occasion to observe the Arkan- 
 sas river in Kansas. That is when I was bringing up a herd of 
 cattle from Texas in 1871, and as I remember, about the middle of 
 July we struck the river near to and a little above Wichita, that is, 
 near the first little town, I don’t remember the name of it, and we 
 crossed the river there with the cattle and then followed the 
 
 3208 river up about a hundred miles, I think. At first for a day 
 or so it was dr}% then we had plenty of water. By that I 
 
 mean probably a foot or two in depth where we crossed it, and I 
 guess maybe a hundred feet wide. After we got up three or four 
 days’ drive itwa’sa pretty difficult matter to water our cattle. We 
 would have to travel along in the bed of the river quite a ways to 
 get sufficient water. We found several places for a day or two 
 where it was dry and we had no water except in pools along where 
 there had been little whirls in the river or low places, and there was 
 no running stream. The water seemed to be in the sand and stood 
 along m pools like. Since that time I have only observed the river 
 in crossing on the railroad. I think it was in October, 1873, 1 came 
 out as far as Granada. I unloaded a car of stock there. I was right 
 on the bank of the river at that time, and there was little or no- 
 water running there then. We had to come from there up here by 
 land. 
 
 3209 I have noticed the effect that the irrigation of land in and 
 about Rocky Ford has had upon the former dry arroyos iii. 
 
THE STATE OF COLORADO ET AL. 
 
 903 
 
 this country. I notice that a great many arroyos are running water 
 now that didn’t use to, that were perfectly dryfat one time, and I 
 have also noticed the effect that irrigation has had upon the water 
 level under the country here at Rocky Ford. I think in probably 
 1876 they dug a well up here near where the Rocky Ford hotel is. 
 However, it was about the time the railroads came through 
 here. It might have been as late as 1877. They went down forty 
 feet deep in that well and didn’t strike any water except a little in 
 the shale, and now you could get water within ten feet anywhere. 
 At seven or eight feet you will strike water, but you can get 
 
 3210 a very good well at eight to ten feet right here in town. The 
 Smoky Hill river in 1871 had plenty of water in it for stock. 
 
 It was not running only just in places. We struck a place where 
 it would run for one or two hundred yards and then it would be 
 dry for a ways, and as I remember, the Smoky Hill river was 
 
 3211 chat year in the same condition as the Arkansas. I think I 
 have noticed the seepage water in the dry arroyos coming 
 
 from the irrigation for about ten years since I have taken notice of 
 it myself, probably fifteen years on the south side. 
 
 3212 Oliver B. Stauffer, Rocky Ford, Colorado. 
 
 Direct examination. 
 
 By Mr. Hayt : 
 
 I am about fifty-four years of age and reside at Rocky Ford. I 
 am running a meat market at present and have lived in Colorado 
 ten years and in Rocky Ford about four years. At one time I lived 
 in Kansas, in Rice county, six miles west of Sterling. I set- 
 
 3213 tied in Kansas in 1879 and lived there a little over thirteen 
 years. When I was living in Kansas I had a little claim 
 
 there, farming, about two miles from the Arkansas river. We could 
 see into the river sometimes in the spring time, and when the river 
 was up, from our place. I was down to the river frequently in 1879, 
 just as anybody would living along it. When I was first in Kansas 
 my family wasn’t with me and I stayed with other parties and was 
 nearer the river than my claim was, being within only half a mile 
 from it, and could see it very plainly — as plainly as you could look 
 out into the street. This was in March, and I saw the river fre- 
 quently during the spring and summer months that year, 
 
 3214 and I crossed it quite often. The first time I crossed it was 
 during the month of February, 1879. I was up and down 
 
 the river looking for a location before I concluded to stay at this 
 point, and I crossed it in February with a land agent and another 
 gentleman from Iowa, each of us crossing the river on horseback, 
 and it was about knee deep at that time to the horse, from bank to 
 bank. The place we crossed it is known now as Raymond, Kansas, 
 
904 
 
 THU STATE OF KANSAS VS. 
 
 and I think the river was about eight hundred feet wide, and 
 
 3215 knee deep to the horses would be the deepest place. In July 
 of that year there was no running water there at all; there 
 
 was onl} r water in the depressions. A couple of boys about fourteen 
 years old came up from the river and stopped at one of those water 
 holes and fished out quite a long fish and came up with that and 
 were excited, so us fellows around there, we weren’t doing much, we 
 went down the river to fish, and we followed up these water holes, I 
 guess a mile or more up and down the river, to fish. There was no 
 water in the bed of the river outside of these water holes, and as near 
 as I recollect, it continued more or less dry up until in October; 
 then we had some pretty heavy rains and there was more 
 
 3216 water in the river. In 1880 I saw the river quite frequently, 
 and I remember after moving upon my claim I crossed the 
 
 river with two neighbors by the name of Eyman and Fair to go to 
 some lakes, fishing. It was very dry and windy, and we drove 
 around by the way of Raymond, over the bridge, but there was no 
 water in the river. After we had been over there two days we came 
 home, and as we knew there was no water in the river we concluded 
 to cut off four or five miles and drove angling to the northeast. We 
 struck the river below Raymond, probably two miles, and drove 
 down the bed of the river for possibly three miles, until we struck 
 the line running east and west on which we lived, and it was very 
 windy. There was no running water in the river at all. I 
 
 3217 didn’t even see any water holes on that trip. I think a time 
 or two in June and possibly a few days in September or Octo- 
 ber we got word that the water was coming down the river, 
 
 3218 but I didn’t see it until after it had come. I know anyhow 
 that we had water in the river after this, somewhere about 
 
 the first of October. In this description of the river I am referring 
 more particularly to the years 1879 and 1880. I saw the river dry 
 at other times, between 1880 and 1893 — I think as many as four or 
 five times at least. There may have been some water holes. It was 
 probably not entirely dry, so much so as it was in 1880. No, there 
 were times there was no running water. I was back there and spent 
 a couple of months this last winter, in the months of Febru- 
 
 3219 ary and March, 1904, and the country was very much im- 
 proved and looks a great deal more homelike. It looks pretty 
 
 prosperous now, while in the early days it was pretty hard to make a 
 living there. 
 
 Cross-examination. 
 
 By Mr. Ashbaugh : 
 
 It was in 1880 that I spoke about fish being in pools. I suppose 
 they got thereat the time the water was up a little more than it was 
 at that time, and I suppose they came up the river. The 
 
 3220 time when the high water came down the river that I spoke 
 of, in 1880, was some time in June, as I recollect. It came 
 
THE STATE OF COLORADO KT AL. 
 
 905 
 
 down the bed of the stream. I have no recollection of any rain 
 storm at that time. I do recollect that we had a heavy rain storm 
 on the 18th dny of May at this time. It was knee deep over 
 the prairie and the creeks were all up at that time. I don’t recol- 
 lect so much as to whether the river got high immediately 
 3221 after that or not. It was sometimes talked of among the 
 farmers about the water coming down the river, and we would 
 hear it just as we would hear anything else. There was no danger 
 of water in the Arkansas injuring anybody. When I spoke about 
 cattle drowning out on the prairies, it was just what several some- 
 bodies told me. I didn’t' see the dead calves. 
 
 3224 I had some wells on my farm, and I got water in one at 
 eight feet and in another at eleven feet. They were driven 
 in 1880. They were about two miles back from the river. The 
 land back at Alden is pretty nearly level. My land was on the 
 south side of Cow creek, which runs southeast all the way through 
 Rice county. Sometimes there is a great deal of water in Cow creek 
 and sometimes there is none. I wouldn’t like to say that 1 ever saw 
 Cow creek actually dry. I crossed it once when I think there was 
 about four inches of water in it. As to the Arkansas river during 
 the thirteen years I lived there, sometimes there was quite a bit of 
 water and at other times not very much. By “ quite a bit ” I mean 
 two-thirds full — two-thirds of the way across the bed. The bed is 
 pretty wide. At other times I have seen it when it was dan- 
 3226 gerous to cross. When it was dangerous to cross it runs very 
 swiftly, and there is quicksand in the bed of the river, mak- 
 ing it treacherous. I believe in the winter and spring of 1884 the 
 river was almost bank full for months. I might be mistaken as to 
 the year ; and it was covered with ice from bank to bank. We 
 crossed the river on the ice, and when it broke up it roared and tore 
 terribly, but didn’t get outside of the banks. I never saw the river 
 overflow its banks, not even a quarter of a mile out, except possibly 
 in some low depression that has at some time been a part of the bed. 
 This high water may have continued away up into the summer, and 
 maybe it didn’t. It was generally supposed that in June the water 
 would be up more than any other month during the year ; that is, 
 by the people who had been there longer than I had. That didn’t 
 seem to hold out so well, quite, after I came there, yet sometimes it 
 did come up in June more than any other months. There were 
 months along, and short periods, that there would be more water 
 than at others. I have seen the river tremendously high in August. 
 I think that was in 1886, but it didn’t last very long. Perhaps not 
 longer than two or three weeks. In 1886 Cow creek was as 
 3228 big or bigger than the river. During the periods of high 
 water we never noticed any difference in the wells at all. I 
 can say this, in speaking about the rise of water, that when it came, 
 if it had been dry for quite a little period and it was going to rain, 
 our iron pumps would all get wet — gather water on the outside — 
 
006 
 
 THE STATE OK KANSAS VS. 
 
 and the water would always be ready to pump out the first stroke. 
 We didn’t try to measure the water in these driven wells. 
 
 Redirect examination. 
 
 By Mr. Hayt: 
 
 3229 When I spoke of the river being the width of this room I 
 meant about fifteen feet. The Crow creek I am speaking of 
 
 emptied into the river about twenty-five miles below where I lived. 
 The Walnut entered into the Arkansas river east of Great Bend 
 about three miles, I think, and the Pawnee was up farther, I don’t 
 know just how far. On the south side was Salt creek. That emp- 
 tied into the river just below my place, straight opposite. Salt creek 
 came up the same as other streams when there were heavy rains. 
 
 Recross-exa mi nation . 
 
 By Mr. Ashbaugh : 
 
 3230 There was water flowing in Salt creek only at times. It is 
 a surface stream, or principally so. I could hardly say that 
 
 it flowed the year around. 
 
 3231 W. N. Randall, Rocky Ford, Colorado. 
 
 Direct examinations. 
 
 By Mr. Hayt : 
 
 I have lived at and in the vicinity of Rocky Ford for sixteen 
 years, and am a civil engineer. I was engineer in charge of the 
 building of what they call the Oxford Farmers’ ditch and the Lake 
 or Holbrook canal and some smaller ditches. 
 
 I first became acquainted with the Arkansas river between Pueblo 
 and Rocky Ford in the fall of 1887. 
 
 The area of land under irrigation in this vicinity has increased 
 materially since I came here, and I have noticed that these small, 
 dry ravines that were dry when I first came to the country 
 
 3232 are now running water constantly. You take the Chicosa 
 stream that, when I was engineer for the Oxford Farmers’ 
 
 ditch in the winter of 1888 and we built a flume across that Chicosa 
 creek on the Oxford Farmers’ ditch, that is, about half a mile long, 
 the ground was so hard the entire width of the stream that they 
 could hardly drive piling for the flume, and now there is water 
 running down the Chocosa at all times 1 have passed it. Since that 
 time the Highline ditch has been constructed south and most of this 
 seepage water is from the Highline ditch. All of the lands irri- 
 gated from the Arkansas river in this vicinity drain back into the 
 river. I am of the opinion that the effect of the irrigation of the 
 lands in this vicinity is to cause more water to run in the river dur- 
 
THIS STATE OF COLORADO ET AL. 
 
 907 
 
 ing the dry period than there would be if the ditches had not been 
 constructed. From the middle of May to the first of June we 
 
 3233 run large volumes of water out onto the lands. That is the 
 time that the river furnishes its largest flow. The water is 
 
 used on the land for irrigation and soaks up the ground, and you can 
 take all of the deep marked ravines during that period and the re- 
 maining part of the year — they are all running water into the river. 
 And you take it along the bluff where there is this black shale along 
 the river, there is water running on top of that shale and coming into 
 the river that you can observe, and I am of the opinion that where 
 you don’t see it coming in over the top of the shale it is coming in 
 underground. In my opinion there is not far from one hundred 
 thousand acres of land irrigated from the Arkansas river between 
 Pueblo and La Junta, leaving out that large canal that Mr. Cressy 
 (a previous witness) spoke of, lying east of here, and these lands are 
 used for the production of the various crops that can be grown in 
 this latitude and which could not be grown without irrigation. 
 These lands would have no value for agricultural purposes without 
 irrigation, as they would only be of small value for grazing. Graz- 
 ing lands in this arid country are worth from $1 to $1.25 per acre, I 
 think, and the lands under irrigation — that is, under the larger 
 canals — with later decrees would run from fifty to seventy-five dol- 
 lars an acre, and the lands near the railroad and under the Rocky 
 Ford and Catlin canals are worth anywhere from one hundred to 
 three hundred dollars an acre, not counting the fruit crops on them, 
 and I would think the average value of all these irrigated lands 
 would be from fifty to seventy-five dollars an acre, as the larger 
 amount under the larger canals would be fifty dollars and acre. 
 
 Cross-examination. 
 
 By Mr. Ashbaugh : 
 
 3234 The one hundred thousand acres I spoke of are the lands 
 already irrigated. The seepage that I spoke of returns to 
 
 the river at different points along it. Taking the ditches west 
 from here, they increase the river between the heads of the canals 
 and a certain distance below the end. This would increase the flow 
 of water below La Junta if it was not taken out. The seepage 
 from these ditches above would not flow into the river from the south 
 side below La Junta. There are creeks at La Junta that would stop 
 it from going by. The seepage from the canals on the north 
 3236 side will reach the river all the way from the head of the 
 Bob Creek canal to something below the Kansas line. I said 
 the Kansas line because I don’t know just the terminus of the Amity 
 canal. And this seepage would not go around the Amity canal 
 north. If the Amity canal should empty into a creek at the end, I 
 think there would be the terminus of that water. This seepage 
 from these canals going into the river tends to supply the ditches 
 below with a greater amount of water than they would get if the 
 
DOS 
 
 THE STATE OF KANSAS VS. 
 
 seepage had not been added to the average flow, if those ditches took 
 it out. The Amity canal has the capacity to take a large de- 
 3237' creed appropriation, and is doing a large business — the largest 
 of any of the lower ditches. The seepage that returns from 
 all the ditches above Rocky Ford could all be used by the Amity 
 canal if it could get it, but they have not found out a way yet to stop 
 this seepage and get it into the ditches. The seepage from the Amity 
 canal can likewise be taken out by the canals below that. The 
 Buffalo canal right down near the State line is the last one with a 
 late appropriation, and it can take all the seepage that reaches it. 
 So that, as to whether this seepage increases the flow of the river in 
 and through the State of Kansas, it would have to depend 
 
 3238 upon the question as to whether the ditches took up this 
 speeage water. I didn’t say it increased the flow in the State 
 
 of Kansas. I don’t know whether it does or not. I haven’t been 
 down there. All the water from seepage that could possibly affect 
 the flow of the Arkansas river in the State of Kansas would be the 
 amount that returns to the river below the point where any 
 
 3239 ditch could take it, outside of what would pass under the 
 sands and down. All this seepage returning to the river 
 
 simply supplies ditches lower down the river with subsequent ap- 
 propriations, if they take it out. I think the ditches with 
 
 3240 early appropriations get most of the seepage water. It would 
 increase the amount of water in the river below where the 
 
 ditches are taken out. Whether some of that reaches Kansas or all 
 of it or is taken by the ditches down below I am not able to tell. 
 (Objection.) 
 
 Redirect examination. 
 
 By Mr. Dawson : 
 
 3240 There would have to be an end of this returning seepage 
 somewhere, but I think there would be some that would come 
 in anyway, for the Kansas ditches even, but just how much, as I 
 have not observed the river at the Kansas line or that part of it, I 
 cannot say. 
 
 3241 George W. Swink, Rocky Ford, Colorado. 
 
 Direct examination. 
 
 By Mr. Hayt: 
 
 I have resided in Colorado since 1871, and am sixty-eight years 
 of age. My occupation is farming. I have been county commissioner 
 of our county and mayor of Rocky Ford at times. I have been 
 
 3242 in the State senate two terms, for a total of eight years. I was 
 superintendent of the horticultural department and prairie de- 
 partment at the St. Louis Exposition in 1904. I first engaged in the 
 
Lek state OF CO I. or A DO i£T AL. 
 
 §09 
 
 niefcaiitile business. In 1874 I began a little garden spot on what 
 we might call, the low lands near old Rocky Ford. Old Rocky 
 Ford is situated about three and a half miles northwest of Rocky 
 Ford and was known in the early times as Rocky Ford. At 
 
 3243 first I engaged in agriculture in a small way here. We 
 dipped the water out of a well and filled up some barrels 
 
 and let it stand a day until it was warm and irrigated the garden. 
 We did this because it was too cold to use without being warmed 
 during the day. In 1875 we succeeded in getting out what was 
 known as the Rocky Ford ditch. We built it down a little past my 
 location, and I put out forty acres of an experimental crop of wheat, 
 oats, corn, cantaloupes and watermelons and pretty nearly all 
 
 3244 kinds of stuff. We made the experiment to ascertain what 
 would grow best in this locality. I put out what I called an 
 
 experiment garden, because it was the general impression that we 
 couldn’t grow anything here, and so many said this that I became 
 doubtful myself, but from the experiment I made I made up my 
 mind we could grow pretty nearly everything. I was raised in Illi- 
 nois, and by experience knew that was a great corn country, 
 
 3245 and from my growth of corn here I didn’t take much stock in 
 it as a corn country. But all kinds of fine crops, such as 
 
 pumpkins, squashes, watermelons, etc. grew much better than Iliad 
 ever seen them grow in Illinois. Spring wheat didn’t doas well as in 
 Illinois. I afterwards commenced farming down where the beet 
 sugar factory now is. A little later I put out cantaloupes on the 
 market, and watermelons, and shipped them nearly all over 
 3246. the State. We also shipped them to Topeka, Kansas City, 
 St. Louis, Chicago, and nearly all over the East, and the de- 
 mand increased the acreage, especially of the cantaloupes. The 
 special variety of Rocky Ford cantaloupes that is known all over 
 the country was developed in thiswise: The first cataloupes 
 
 3247 I marketed were of the variety called the Jenn} 7 Lind. I 
 finalK found a variety that seemed to me all right, and I 
 
 took the seed out and planted them, and by making selections I im- 
 proved the quality and color and flavor and finally developed the 
 Rocky Ford cantaloupes. 
 
 3248 (Page- 3248 and 3249 contain a more minute description 
 of cantaloupes.) 
 
 3249 It has been my experience that cantaloupes properly be- 
 long to an arid climate more than to a rainfall or excessive 
 
 rainfall climate. It requires just about a certain amount of moisture 
 to grow them and sunshine to put the sweetness into the 
 
 3250 cantaloupe. The cantaloupe industy has developed in this 
 locality until the demand today is almost unlimited for first 
 
 3251 class qualit} 7 goods such as we produce. I think we have 
 shipped eight hundred cars or over each season. 
 
 (On page 3251 is a discussion of some early difficulties in produc- 
 ing cantaloupes.) 
 
910 
 
 THE STATE ©F KANSAS Vfe. 
 
 I found by the use of bees that they would serve to carry the 
 pollen and that the cantaloupes were better developed by that 
 
 3252 means. 
 
 The St. Louis exposition developed the superiority of the 
 Colorado honey over others, especially in regard to its color 
 
 3253 and weight. Alfalfa has been found to be a great stimulus 
 to the production of honey. This crop grows especially in 
 
 2354 the arid region under irrigation. So also does the sugar beet 
 where it receives copious sun light and heat. 
 
 (Page 3255 relates to the comparative qualities of cane sugar and 
 beet sugar. Page 3256 relates to the witness’ experience in encour- 
 aging the growth of the sugar beet about Pocky Ford and some ef- 
 forts made by him in the legislature to stimulate this industry. 
 Page 3257 relates to the witness’ efforts to build up the sugar beet 
 industry in and about Rocky Ford ; also page 3258. Pages 3259 
 and 3260 relate to the results obtained in and about Rocky Ford in 
 the growth of sugar beets, showing its superiority over other parts 
 of the United States in the production of that crop.) 
 
 3261 In 1894 Mr. Henry T. Oxnard (of New York) came right 
 out and made an investigation and followed it right up with 
 
 the building of a beet sugar factory. The factory has been in oper- 
 ation about five years, The beets used at the factory are 
 
 3262 all grown upon irrigated lands and as a result of irrigation. 
 They could not be grown in ordinary seasons without irri- 
 gation. 
 
 Cantaloupe seed cannot be saved for less than seventy-five cents 
 per pound. 
 
 3263 I am interested in five canals along the Arkansas river in 
 Colorado and one in the State of Kansas. The latter is called 
 
 the Great Eastern canal. I am one of its officers — director and 
 president. It is named the Arkansas Valley Beet Sugar Land and 
 Irrigation Company. The ditches in Colorado in which I am inter- 
 ested are called the Rocky Ford ; the Catlin Consolidated canal ; 
 the Rocky Ford Highline canal; the Bob Creek canal; the Excel- 
 sior canal ; and those are all that I am in. 
 
 3264 Commencing with the canal farthest up the river of those 
 I have mentioned, namely, the Excelsior canal, I think it has 
 
 a capacity of sixty cubic feet of water per second of time. Its head- 
 gate is above Chico, about forty miles from Rocky Ford. It was 
 constructed about 1860 and irrigated lands on the north side of the 
 Arkansas river from Chico down about six or seven miles. The 
 width of the canal at the head is twenty feet, and it tapers as it con- 
 tinues down. It is about twenty feet in width now. It is a 
 
 3265 short ditch, about seven miles in length. I don’t recollect 
 just the number of acres irrigated by it. I have been inter- 
 ested in that but a short time. 
 
 3266 The next one as we come down the stream is called the 
 Rocky Ford Highline, with a carrying capacity of about five 
 
StAtii OF COLORADO KT At. 
 
 9ii 
 
 hundred cubic feet per second of time. The head-gate is just below 
 the head of the Huerfano on the south side of the river, in Pueblo 
 county, about thirty-two or thirty-three miles from Rocky Ford. It 
 is about thirty-two feet wide at the head. I don’t know the grade, 
 but it is a little over one and a half feet to the mile, I believe. It 
 is about five feet in depth. It runs south of the town of Rocky 
 Ford. The nearest point is about two miles south of Rocky Ford. 
 It irrigates about twenty-seven thousand acres tributary to Fowler, 
 Manzanola and Rocky Ford. 
 
 3267 The next ditch is the Catlin Consolidated. It comes out at 
 the mouth of the Apishipa, about twelve miles west of here 
 
 (meaning Rocky Ford). It is twenty feet wide on the bottom and 
 carries four feet in depth. It must be about forty miles, on the ditch 
 line, in length, and irrigates about thirty thousand acres. These 
 lands are located opposite Manzanola, Rocky Ford, and southeast of 
 Rocky Ford, and near to La Junta. These lands are chiefly tribu- 
 tary to Rocky Ford. 
 
 The next ditch on the south side of the river is the Rocky Ford, 
 the first ditch that was built in the valley here. We commenced 
 constructing this ditch in 1872 or 1873. It has been enlarged 
 
 3268 since that time a little. This ditch is twenty feet on the bot- 
 tom, carrying five feet of water, and is about eighteen miles 
 
 long. It irrigates twelve or thirteen thousand acres of land. 
 These lands are tributary to Rocky Ford. I am interested 
 on the Bob Creek ditch that goes under the name of the Colorado 
 canal. It comes out above the Huerfano river in Pueblo county, 
 about forty miles above Rocky Ford. It is forty feet on the bottom, 
 at the head, about six feet in depth, with a grade of a foot to the 
 mile, and the length is sixteen miles. It was constructed in 1884. 
 I don’t know the number of acres irrigated by this ditch. 
 
 3269 These are all the ditches in Colorado that I can think of in 
 which I have an interest. The cost of construction of the 
 
 Bob Creek ditch is $500,000; of the Highline $200,000; of the 
 Catlin $100,000, and of the Rocky Ford $8,000, but it has been en- 
 larged since. I don’t know the cost of the Excelsior ditch, because 
 I never had anything to do with it until recently. 
 
 I am acquainted with the value of irrigated lands in this 
 
 3270 part of Colorado. I think that $80 is about the average value. 
 It varies from $25 to $250 an acre, owing to what ditch it is 
 
 under, how close to town, the management, prior right to water, and 
 all such as that. Eighty dollars I think would be about an average, 
 taking the whole thing together. Well, the value of lands that 
 have water at all times you couldn’t put less than a hundred dol- 
 lars an acre on an average. Without a water right they would be 
 worth very little, not more than the Government price of 
 
 3271 $1.25 per acre. Without irrigation all of our industries 
 would be ruined and the country would go back to its origi- 
 nal condition and it would only be a stock country. 
 
 The traffic on the Atchison, Topeka and Santa Fe railroad through 
 
m 
 
 TliE STATE OP KANSAS VS. 
 
 this county is derived from the improvement of the country under 
 irrigation, with the exception of stock interests. 
 
 There are lots of people making a living on ten acres here, and 
 I think a man can maintain a family of five decently on 
 
 3272 five or ten acres. The productiveness of the land varies 
 greatly. Sometimes it lias yielded as much as $300 an acre. 
 
 This is for small tracts of five or ten acres each. As to the owner- 
 ship of the water and land, I will say that the ditches now only sell 
 perpetual water rights and that the water right is described in the 
 deed along with the land it goes with and is considered an ap- 
 purtenance to the land. We used to sell some water by the 
 acre, but I don’t know of any sold in that way. They now buy so 
 much stock in a ditch and that represents their proportion of the 
 water, and when there is water in the ditch they each get 
 
 3273 their proportion of it. We found it unsatisfactory to separate 
 the land from the water in making sales. All the ditches I 
 
 have mentioned derive their water from the Arkansas river. These 
 ditches depend most altogether on what we call flood waters ; that 
 is, waters that come in quantities from the side streams into the 
 river and then into the ditches. I would consider that ninety per 
 cent, of our irrigation comes from the freshets or high waters of the 
 different streams that empty into the Arkansas. The high water 
 begins when the rain commences on the foot hills and on the plains. 
 The first land I settled was a timber culture, and then a 
 
 3274 preemption. I think I took them on the same day. Then I 
 took up a homestead after I had proven up on the preemp- 
 tion. About two years ago I took up a desert claim. The timber 
 culture is on section 7, 23 south, 56 west. The filing number is 3, 
 
 and the patent number is 1. We broke the land up and put 
 
 3275 it in cultivation. In the first year I put out cottonwood slips. 
 In the end we had about eleven hundred acres in timber. I 
 
 used irrigation to grow the trees. They wouldn’t grow without it. 
 The dersert entry is in what is known as Patterson hollow, about 
 nine miles from here. I am endeavoring to get the water there and 
 am arranging for the building of a reservoir and expect to 
 
 3276 get the waters from the Apishipa. In 1871, 1872 and 1873 I 
 was quite familiar with the river from Rocky Ford to Las 
 
 Animas. It was called then West Las Animas. And then from 
 1875 up to the present time I have been pretty familiar with it down 
 as far as the State line, in fact clear down the line on the Santa Fe 
 road. About Las Animas during those years there has always been 
 more or less water in the river. Sometimes it would be low, but I 
 never saw the river dry at Las Animas, but have seen it frequently 
 dry below the State line, more especially along about Coolidge. I 
 was there very frequently in the early days, because we freighted 
 down there. We hauled goods from down there. I was run- 
 
 3277 uing a general merchandise store then. I have seen it dry 
 when there wouldn’t be any water for a long ways. This 
 
 would occur in what we call the extremely low water season of the 
 
THE STATE OF COLORADO ET AL. 
 
 913 
 
 year. Generally the low water would come in the fore part of the 
 season, and then after the flood waters had all passed and gone. 
 The first year I saw it dry about Coolidge that I recall was in 1875. 
 Between 1875 and 1880 I was down there quite often. I have been 
 in that country a good deal of late years. The comparative flow of 
 the water in late years with those between 1.875 and 1880, especially 
 the last three years, I have noticed more water in the river below 
 Coolidge than there was before ; that is, in the early days, in extreme 
 low water. I think the flow of the water now is more uniform. 
 
 3278 I mean Coolidge in Kansas, a little east of the State line. I 
 was with Professor Newell, of the Government survey for 
 
 three weeks measuring the river and the different ditches along 
 the river. I remember a little experience that illustrates the con- 
 dition in western Kansas. We had been stopped from measuring the 
 ditches by a large flood in the vjcinity of Pueblo, and it put the 
 Arkansas river higher than it had been for years and stopped our 
 work, and then Mr. Newell came back later on, some time toward 
 the fall. He said when the river went down a little from the flood 
 he wanted to measure it at the State line. We went to Coolidge 
 and went out to the bridge across the river there to measure the 
 water there and there was no water at all in the river. It was two 
 and a half feet, about, from the sand to the water that stood in a 
 barrel where they dipped water out of the river. The barrel 
 
 3279 was sunk in the bed of the sand. It was maybe two and a 
 half feet to the water in the river. It tapped what we call the 
 
 undercurrent. A little incident occurred in reference to the use of 
 rubber boots by the professor. He got on his rubber wading boots 
 and asked me if I didn’t want to do the same, and I told him no. 
 We started down to the river and he got about half way across be- 
 fore he dropped onto it being a river. He says “ Isn’t this the bed 
 of the river ? ” I says t£ I think it is.” “ Well,” he says, “ I thought 
 it was, but I know it now.” He got a little irritated over it. He 
 said he didn’t care particularly about finding the river dry, if I 
 hadn’t let him go in with his waders before I knew there was water 
 in the river. I think that was about 1885. It was about the time 
 we built our large ditches. It was before there was any con- 
 
 3280 siderable irrigation from those ditches. In reference to irri- 
 gation in western Kansas, I will say that my experience is 
 
 pretty limited. I had owned a ditch down there for about two 
 years, but we have been spending most of the time cleaning it 
 out and getting it in repair. We did a little irrigating the year be- 
 fore last. Last year we had plenty of water and irrigated all the 
 land we wanted to. This ditch is called the Great Eastern. The 
 head-gate of the Great Eastern is about opposite Hartland, Kansas, 
 about thirty-eight to forty miles east of the State line. It is thirty 
 feet wide on the bottom at the head-gate, for a mile and a half 
 down. It tapers from the head. Its slope on the sides is one-to-one, 
 and it narrows down to twenty feet in width on the bottom. It car- 
 ries its size well for fifteen to eighteen miles until it gets below Deer- 
 58 -7 
 
914 TftE STATE OE gAtfdAS'VS. 
 
 field, where it tarns north. The total length of the ditch is about 
 sixty miles, and it carries three feet of water in depth at the 
 
 3281 intake and five feet where it narrows down to twent}' feet. 
 It has an appropriation of 292,000 statutory inches, or, it is 
 
 worded more this way — “ 292,000 cubic inches of water under 
 a five-inch pressure,” which I believe means a statutory inch. 
 It runs parallel with the river for about three miles 
 and then turns more north. The bluffs come down middling 
 close to the river for about three miles, and at that point 
 it turns in a northeasterly direction, and when it gets down to 
 Deerfield it turns more north. After it. gets on top of the hill 
 
 3282 it runs more north. The most remote point of the ditch from 
 the river is six miles. It is built on a ridge to irrigate lands 
 
 to the north that drain away from the river. After you get up on 
 the rise the whole country slopes north back to what is called the 
 White Woman. The latter is the name of a river that is tributary 
 to the Arkansas. The ditch would irrigate 40,000 acres of land. It 
 has a greater fall tliatf most ditches. The average is three and a 
 half feet to the mile for the first twenty-five miles. It is tribu- 
 
 3283 tary to Lakin, Garden City and Deerfield, Kansas. I became 
 interested in this ditch because I could see a pretty bright 
 
 future for the country down there. Land was cheap, and for the 
 last few years water was a little more plentiful, and I began to think 
 more of that country in general, and that particular enterprise was 
 brought to my notice by Ed Wirt, of Garden City. I regarded that 
 in low water we have more water down there than we used to have, 
 and it is going to increase from what it is to-day, and that the 
 country is a little different from our country up here. I don’t think 
 it takes as much water to irrigate as the land does up here, 
 
 3284 and they have more moisture in the fore part of the season 
 than we have up here, and that would enable us to carry it 
 
 over until the rise of the river, and then we will have plenty of 
 water to irrigate. 1 consider the rainfall greater in western Kansas 
 than in eastern Colorado. I think we have about the dryest spot 
 that anybody has ; but it has not been for the last two or three years. 
 
 I have given some attention to return waters, and the effect of 
 seepage water from irrigated lands. A little ways below Pueblo on 
 the south side of the river where they irrigate in what is called the 
 Bessemer country there is an arrova there that runs quite an amount 
 of water that used to run none at all. In the early days it was dry 
 all of the year except at flood time. And then the next place I am 
 acquainted with — and it is very notable — is near Fowler 
 
 3285 where they took out the Oxford Farmers’ ditch and irrigate 
 the lands above ; and then what is called the Fosdick ditch 
 
 just below the bluffs. That would run after the Farmers’ ditch 
 would run a little while. But that ditch was running quite a lot in 
 it and all the water came from the seepage from the higher grounds 
 and from the ditch. 
 
 Then you come on down to the Apishipa where the Highline and 
 
THE STATE OE COLORADO ET AL 
 
 915 
 
 the Oxford Farmers’ ditches water some of the lands. The Apishipa 
 becomes a running stream all the time, that did use to run before 
 these ditches were built. 
 
 Then you come on down here to Timpas creek ; that creek runs 
 quite a little water and it didn’t use to run at all only in high 
 water. I have. noticed some on the south side down in the vicinity 
 of Las Animas, little arroyas that run water all the time that didn’t 
 use to run at all. In fact wherever they irrigate any great length 
 of time I think all the little arroyos have water in them. Now, 
 Crooked arroya down this side of La Junta runs water all the time 
 and used to be dry all the time excepting flood times. 
 
 3286 As to the Arkansas below here, I am not so familiar with 
 the conditions, but I have been told that there have been 
 
 some filings made on seepage water down there. We rely upon 
 water for the Great Eastern ditch in Kansas particularly upon the 
 flood waters of the rivers. For the last two years there was no time 
 but what we could have drawn from the river quite a little water, 
 but not enough to irrigate any great amount. Probably at the low- 
 est time five or six feet would be drawn there. I figure that will 
 increase as the country is more irrigated above there ; that there 
 will be still more of a continuous return to the river that will help 
 it out, and then when high water comes we will have a good supply. 
 During the last two years we have always at the lowest stage qf the 
 river had some water in that ditch for irrigation ; at other times 
 there has been plenty of water. When what we call the rises in 
 the river come we would have plenty of water. 
 
 3287 As to the tributaries of the Arkansas river between Rocky 
 Ford and the intake of the Great Eastern, the first below here 
 
 is the Timpas creek; the next is Horse creek on the north side; 
 then comes the “Picket Wire” or Purgatoire, then the Big Sandy 
 on the north side; then the Adobe creek on the south side; then 
 there is a creek near Lamar that I don’t recall the name of. It is 
 quite a creek and runs lots of water sometimes. Then there are 
 numerous other small creeks that I don’t know the names of. There 
 are some ditches middling close to the State line and some of them 
 carry water over into Kansas. The Purgatoire runs an ira- 
 
 3288 mense amount of water at times. At times it is uncontrol- 
 able. There are no ditches between the mouth of the Purga- 
 toire and the State line to take this surplus water during high flood 
 times from the Purgatoire. The people in western Kansas rely on 
 irrigation for the raising of crops. If water were prevented from 
 being used from the river in eastern Colorado or western Kansas it 
 would in my judgment be a great injury to the people in both 
 places. (Objection.) If the average flow of the Arkansas river at 
 Canon City is eight hundred cubic feet of water per second of time, 
 I don’t think it would ever reach western Kansas if not used for 
 irrigation in Colorado. The water that I have mentioned as belong- 
 ing to the Great Eastern is a decreed water right. The decree 
 
THE STATE OF KANSAS VS. 
 
 m 
 
 was entered in the United States court or in one of the higher 
 courts. 
 
 Cross-examination. 
 
 By Mr. Ashbaugh : % 
 
 The eastern end of the Bessemer ditch to which water is conveyed 
 is in ranges 62 and 63 west. The eastern end of the Excelsior ditch 
 to which water is carried for irrigation is in range 64 west ; of 
 
 3290 the Gatlin ditch it is in 55 west; of the Rocky Ford Highline 
 it is in 57 west; of the Rocky Ford ditch it is in 56 west; of 
 
 the Otero ditch in 55 west; of the Bob Creek or the Colorado canal 
 56 west ; of the Laguna or Holbrook 54 west ; of the Fort Lyon 
 canal 45 west ; and the most eastern point to which water is carried 
 for irrigation in the Amity canal is in range 45 west. As to the 
 Amity canal, I don’t know that water is actually carried that far. 
 The most eastern point to which water is carried for irrigation in 
 the Lamar canal is about the west line of range 43, and of the Buf- 
 falo ditch it is about the middle of range 44 west. 
 
 I don’t wish to be understood in my direct examination to say 
 that there are no ditches in Colorado whose intake is east of the 
 Purgatoire river, because there are such ditches. There is a ditch 
 that comes out of the Muddy, and there is also the Colorado- 
 
 3291 and-Kansas, and on the north side the Amity, and the Lamar 
 is below the Purgatoire, and also the Buffalo Creek ditch. 
 
 The seepage from all of the ditches in Colorado west of the Purga- 
 toire river would flow into the river so as to be taken up b\^ the 
 Amity and the Lamar and the other ditches located east of the 
 Purgatoire river. 
 
 I spoke about taking water at flood season. We don’t take it at 
 other times in the year because we can’t get it, because there isn’t 
 enough to supply the older rights and we are not allowed to take it 
 out. We are only allowed to take water as the superintendent 
 directs us. He has not nearly enough water in the average or 
 normal flow of the river to supply all the appropriations. 
 
 I am not positive, but I think the Great Eastern ditch in Kansas 
 was dug in 1882. It is my understanding it was operated more at 
 intervals. Sometimes it was in order to carry water and at 
 
 3292 other times it was not in order to carry water. Most always 
 when the river was high they carried some water in it. 
 
 When the river was low they didn’t carry any water in it because 
 they couldn’t get it into its head. I don’t know whether there was 
 any -water in the river to get into the Great Eastern ditch at low 
 times except during the last two years. There was no great amount 
 of water in the river in 1903 so as to supply the Great Eastern ditch 
 or any other ditch in Kansas at low water. I don’t know whether the 
 river was absolutely dry through Hamilton county, Kearney and 
 Finney counties in Kansas, from August, 1903, to the first of May, 
 
THE STATE OF COLORADO ET AL. 
 
 917 
 
 1904, but I think that was the case. I never saw the river dry 
 
 3293 in western Kansas during the winter time. There was a good 
 deal of water flowing in the river since the floods of May, 
 
 1904, and 1904 was one of the best years. 
 
 I do not recognize Complainant’s Exhibit A-45., I don’t think I 
 was ever at at the Garden City bridge. But there is quite a differ- 
 ence between the water in the river in the winter time and 
 
 3294 in April — there might be. In speaking of the land in Fin- 
 ney, Kearney and Hamilton counties, Kansas, being cheap, 
 
 it is good land in the bottoms. It is cheap because they haven’t 
 had water to irrigate it. They haven’t had the ditches in order. I 
 haven’t seen many of them in order. They were out of water be- 
 cause they filled up with mud and were neglected. That would be 
 the natural reason. I think these ditches in western Kansas were 
 dug about the years 1880, 1881 and 1882. I know of the ditches 
 there — of the Collier ditch, the Amazon, the Garden City, 
 
 3295 the Great Eastern and the Western. The Garden City ditch 
 I think was bought up and rebuilt by the farmers around 
 
 Garden City because it had been abandoned. I think it was aban- 
 doned because it didn’t pay or the country was neglected or some- 
 thing of that kind, and I understand that the companies that owned 
 those ditches went bankrupt. I don’t know why they went bank- 
 rupt unless it was bad management or something of that kind. I 
 don’t think it was because there was no water for the ditches, be- 
 cause there was water there part of the time at any rate. I never 
 saw the time during the summer time that they didn’t have plenty 
 of water coming down that river — in time of high or flood waters I 
 mean. I don’t know how many years they irrigated and I couldn’t 
 tell about whether they were prosperous and profitable because I 
 never had anything to do with that country at that time. The 
 ditch we bought, the Great Eastern, looks like it had been 
 practically idle for the last ten or twelve years, but I don’t 
 know that it was practically idle and the company be- 
 
 3296 came bankrupt because of loss of water. I found the 
 land down there both of good quality and cheap around 
 
 Garden City, Lakin and Hartland and in that vicinity. They 
 tell me around Garden City that land has gone up over fifty 
 per cent, in the last two years. The reason is because the ditch has 
 been put in order and when there is water in the river they can get 
 it. I think they have been encouraged as to their irrigation ever 
 since the ditch was put in order. I don’t know very much about 
 the condition of that ditch from 1890 to 1904. It might be true 
 that if water had been plenty the ditch could have been very much 
 superior to what it was. It makes a whole lot of difference about 
 the management of the ditch, whether there is water or no water in 
 the ditch to suppty it. If you don’t have any water and are never 
 going to get any water of course there is no use to have manage- 
 ment; but if you have your ditch in order when the water comes 
 
918 
 
 THE STATIC OF KANSAS VS. 
 
 generally the people get the right amount of water. If there 
 3798 was water in that ditch three months in a year and at the 
 right time of the year, that is all those people want down 
 there from Coolidge to Garden City, and that is all they ask. There 
 has been water this year down there for three months in the year, 
 but I don’t know as to the other years during the last thirteen years 
 prior to 1904. 
 
 These ditches near Rocky Ford, especially the larger ones, were 
 dug from 1884 down to about 1891. 
 
 As to the seepage that can be taken up by these ditches below the 
 place where it gets back into the river and yet not exhaust either 
 their appropriations or their needs, it can all be taken by these 
 ditches, that is, in time of low water. In time of flood waters they 
 can’t do it at all. In order to increase the flow of the river in Kan- 
 sas by the seepage water in Colorado it must reach the river below 
 the intake of the ditch farthest down in Colorado if the rights of the 
 ditches would take it all from above that point. There are 
 
 3299 two ditches whose capacity and whose appropriations have 
 never yet been supplied with water in the eastern part of 
 
 Colorado in low times. I refer especially to the Lamar and the 
 Amity canals. The Amity is one of the largest and best constructed 
 ditches in Colorado. The Lamar ditch has just now received a new 
 impetus by the location of a beet sugar factory at Lamar. 
 
 In speaking of the appropriation of the Great Eastern ditch, I 
 gave it in inches. I don’t know as I could give it in cubic feet per 
 second of time, but approximately, as I understand, it takes about 
 sixty cubic inches to make a cubic foot of water. That is, of the 
 statutory inches, to make a cubic foot of water. 
 
 Examination by Mr. Campbell : 
 
 3300 We have the most water in the river in the months of 
 June, July and August. 
 
 3301 I never knew of any practice that permitted a man to own 
 water that he never had applied to the land. We don’t 
 
 3302 recognize the practice of getting an appropriation of water 
 and loaning or selling it to some person below who has not a 
 
 prior appropriation. Our acreage here under irrigation is increas- 
 ing year after year from the same amount of water. There are two 
 reasons for this — one is that as you irrigate land it takes less water. 
 It depends somewhat upon other circumstances, such as the 
 
 3303 formation of the soil, etc. If it is sandy it takes more. If it 
 is adobe soil it don’t take water so freely and takes a little less. 
 
 We use it very economically. We don’t allow the waste of water 
 like we used to. We have improved a good deal within the last two* 
 years and are improving all the time in the use of water in applying 
 it to the land with more economy. 
 
 I am pretty familiar with the Arkansas valley from Canon 
 
 3304 City away down into Kansas. I know very little of it above 
 Canon City. I have been clear up to the head of the river. I 
 
THE STATE OF COLORADO ET AL. 
 
 919 
 
 understand there are a good many reservoir sites along the Arkansas 
 river, but have never investigated it. In the Great Eastern ditch 
 there is one little place that would make a very nice little reservoir, 
 and on down towards — well, just beyond the lower end of the ditch 
 there is a. very nice little reservoir site there, and that is as far as I 
 know about the reservoir sites in Kansas. I couldn’t tell you as to 
 the amount of water that escapes here in flood seasons and that is 
 not applied to irrigation purposes. It is a whole lot sometimes and 
 at other times not so much. If these flood waters which escape 
 could be impounded in reservoirs they would reclaim a whole lot of 
 land. 
 
 3305 Redirect examination. 
 
 By Mr. Hayt : 
 
 In reference to waste water in Colorado, I will say that it is guarded 
 against in this State a good deal howl There has been bad manage- 
 ment of ditches in Colorado as well as in Kansas. I have never 
 known of ditches being abandoned in Colorado because of bad man- 
 agement, but the farmers got but little water out of them 
 
 3306 owing to the bad management. I have known a time when 
 the Lamar ditch was not considered a profitable enterprise. 
 
 I think it is better now. The Otero ditch has been one of the unfortu- 
 nate ones in management, but it has improved. It is one of the 
 most important things in the improvement of our country to keep 
 the ditches in the very best order all the time. It is the most im- 
 portant thing we have. 
 
 Recross-examination. 
 
 By Mr. Ashbaugh : 
 
 In order to have a ditch profitable it is of course important to have 
 water for it. A ditch without any water is the poorest property a 
 man ever did have. 
 
 3307 H. W. Potter, Rocky Ford, Colorado. 
 
 Direct examination. 
 
 By Mr. Hayt : 
 
 I reside near Rocky Ford, Colorado ; age 45 ; business farming 
 and cattle raising. I have been acquainted with the Arkansas 
 valley about twenty-five to thirty years. I was upon the Arkansas 
 river in western Kansas in 1879, about the 15th of May until the 
 first of June. We were rounding up cattle. I struck the river at 
 Lakin or a little below and we worked up the river to Las Animas. 
 The distance is in the neighborhood of a hundred miles. 
 
 3308 Lakin is in Kansas. The condition of the river at Lakin was 
 dry, with the exception of water standing in the holes where 
 
920 
 
 THU STATE OF KANSAS VS. 
 
 it had washed out deeper than at other places. We found water in 
 those holes to water our herds until we got as far as Granada ; there 
 the river was running a little, and from there on up it was running 
 more, up to Las Animas. I don’t think there was any running 
 water below Granada at that time. That is the only year I was on 
 the river in Kansas. 
 
 Cross-examination. 
 
 By Mr. Ashbaugh : 
 
 1 was along the river in western Kansas about 1882 or 1883, about 
 Coolidge. I don’t think I saw any ditches there at that time. There 
 were none at Lamar in 1879. I have seen water in the river in 
 Kansas. In 1882 there was water there, during the fore part of the 
 season, about May or June. We were on the spring round-up then. 
 At that time I remember swimming the river near Granada. One 
 morning I remember very distinctly we had to swim the river to 
 get across on the other side for the round-up. This was between 
 Coolidge and Garden City somewhere, but I don’t remember just the 
 place, nor I couldn’t say how long the high water lasted, but it was 
 in June, 1882. I don’t recollect that I ever saw the river in Kansas 
 at any other time than this when there was any water in it. 
 
 3310 F. G. Curran, Rocky Ford, Colorado. 
 
 Direct examination. 
 
 By Mr. Hayt : 
 
 I am thirty-seven years of age; residence Rocky Ford, Colorado ; 
 I have resided here three years; occupation, agent of the Santa Fe 
 Railroad Company at Rocky Ford. The business transacted by that 
 road at this station lam familiar with. As compared with the years 
 1888 and 1889 I should judge that the business this year and pre- 
 vious years back to the time the beet sugar factory was installed 
 here about five years ago is perhaps six times greater. Perhaps 
 more. Incoming and outgoing freight charges and the passenger 
 business for the past year approximated three quarters of a 
 
 3311 million dollars. This doesn’t include the express business. 
 The shipments of cantaloupe are greater in 1904 than in 
 
 1902. 
 
 Examination by Mr. Campbell : 
 
 I think we handled about 186 cars of cantaloupes at Rocky Ford 
 proper this year and received in freight therefrom about $175*000. 
 This doesn’t include cantaloupes shipped out by express, but the 
 express shipments were practically local. 
 
THE STATE OF COLORADO ET AL. 
 
 921 
 
 3313 Charles F. Evans, Rocky Ford, Colorado. 
 
 Direct examination. 
 
 By Mr. Hayt : 
 
 Residence Rocky Ford, Colorado; age forty-two ; have lived here 
 forty-two years. Am connected with the American Beet Sugar Com- 
 pany as assistant manager. The beet sugar factory was erected in 
 the spring of 1900. A plant costs approximately one thousand dol- 
 lars per ton capacity, and the capacity of this plant is one 
 
 3314 thousand tons per day. The plant is started up about the 
 first of October and runs until the beets are all sliced. The 
 
 earliest we have ever finished was the eighth of December. We have 
 run into February. The first year we sliced forty-two thousand tons, 
 the second year ninety-three thousand, the third year one hundred 
 and thirteen thousand, and the last year sixty thousand. This year 
 (1904) we expect the tonnage will be between one hundred and thirty 
 and one hundred and forty thousand tons. I can’t give the amount of 
 product shipped out. Approximately, we extract about two hun- 
 dred and fifty pounds to the ton, of refined sugar. A great deal of 
 stock is fattened upon the pulp and is dependent upon this 
 
 3315 industry. Pulp is a by-product of the beet sugar business. 
 Colonel Lockhart or the Lockhart Live Stock Company are 
 
 feeding a very large herd upon the by-product in this locality. Ordi- 
 narily they fatten from five thousand to five thousand five hundred 
 head of stock and three or four thousand head of sheep. Senator 
 Swinn is fattening a number of thousand sheep on the pulp. The 
 Weaver and Bond Company of Kansas City have a feed yard east of 
 Rocky Ford and they fatten on the pulp. F. M. Harrison fattens about 
 three to four thousand head of sheep on the pulp of this factory. 
 Those are the main industries of that kind in this place. 
 
 The farmers a*re allowed twenty per cent, of their beets back to 
 them in the shape of pulp. Large herds of stock are usually 
 brought in during October and November and are kept up 
 
 3316 until May and June, according to the market. This season 
 there are about thirteen thousand acres planted to beets. The 
 
 average production within a radius of three miles of Rocky Ford 
 this year (1904) will be fifteen tons to the acre. The average 
 
 3317 yield in other localities will not be as great as that. The 
 total average of the acreage that will be harvested will prob- 
 ably be thirteen tons per acre throughout the whole district. The 
 farmers receive five dollars per ton for their beets. They run high 
 in saccharine matter. The sugar beets thrive better in an arid 
 country where they are raised by irrigation. Excessive moisture or 
 rainfall has a bad effect upon the percentage of saccharine matter. 
 According to our contract we prohibit the irrigation of beets after a 
 certain time. The only time we test beets for the saccharine matter 
 is from about the first of September on. We have no interest in the 
 
922 
 
 THE STATE OF KANSAS VS. 
 
 saccharine properties until that time. Until that time vve want the 
 beets to make rapid growth, but after that time rain in the fall is 
 very apt to start an active growth in the beet and the sac- 
 
 3318 charine matter disappears. That is the reason we claim the 
 arid region is best for beets. 
 
 Cross-examination. 
 
 By Mr. Ashbaijgh : 
 
 The company that operates the factory here is the one that is 
 about to enlarge its plant and build another one at Lamar. The 
 investment in the plant at Lamar will probably be half a million. 
 They expect to make it a five hundred ton factory. The factory 
 here costover a million dollars. The plant at Sugar City cost half 
 a million, I understand, and it is a five hundred ton plant. We 
 get the water for operating the plant from the Rocky Ford ditch 
 and will get water to operate the one at Lamar by sinking 
 
 3319 wells. We use in the Rocky Ford plant about six million 
 gallons per day. I can’t give you the figures on what part 
 
 of it returns to the river. The great bulk of it, however. I would 
 judge ninety per cent. This would make a loss of probably ten 
 per cent. 
 
 Examination by Mr. Campbell : 
 
 We import one hundred million dollars’ worth of sugar from Ger- 
 many every year. The great bulk of the sugar imported comes 
 from Germany, outside of the West Indies, Hawaii and India. We 
 also think that sugar beets can be raised more profitably and 
 economically in the arid region where we depend upon irri- 
 
 3320 gation rather than upon rainfall. We have two beet sugar fac- 
 tories in Nebraska. The beets are raised by rainfall there. 
 
 There is about three to four per cent, more saccharine matter in the 
 beets here than in Nebraska. This makes so much difference that we 
 are just about to move one of our Nebraska plants to Lamar, and it 
 is for this reason that we say that the arid region is better adapted 
 for the raising of beets for the manufacture of sugar than any region 
 depending upon rainfall. 
 
 Recross-examination. 
 
 By Mr. Ashbaugh : 
 
 We get beets from three towns in Kansas — Deerfield, Lakin and 
 Garden City. The quality of those beets has been very good. I 
 can’t tell how many carloads we get this year. There has 
 
 3321 been quite an acreage grown down there this year. I think 
 the sugar beets are raised in Kansas by irrigation. I think 
 
 we would have to shut our factory down if irrigation in Colorado 
 ceased. 
 
THE STATIC OF COLORADO ET AL. 
 
 923 
 
 Recross-examination. 
 
 By Mr. Ashbaugh : 
 
 There has not been any irrigation for beets tried in Kansas as yet. 
 There is not sufficient acreage now in Kansas to run a plant there. 
 Two years ago the second best tonnage we had came from 
 
 3322 Kansas. I don’t know whether they had irrigation water that 
 year or not. You can raise good beets if you can get rain 
 
 throughout the spring and early summer and not have rain in the 
 fall. It. is the fall rains that are bad in a country that depends upon 
 rain. If you can have rains just as you want them in those coun- 
 tries in the spring and summer you can get just as good beets any- 
 where in the United States as here. It is the fall rains that do the 
 mischief. 
 
 Examination by Mr. Campbell: 
 
 The consumption of sugar in amount per capita is increasing in 
 the United States from year to year. I think that sunshine 
 
 3323 is necessary to all plant life. And this is especially true in 
 regard to the production and growth of beets for sugar pur- 
 poses. This year we have paid approximately, to the farmers in the 
 neighborhood of Rocky Ford, Colorado, for beets, from six hundred 
 and fifty to seven hundred thousand dollars. We employ in the 
 sugar plant during its operation about five hundred people. Our 
 monthly pay-roll approximates about fifty thousand dollars per 
 month. 
 
 3324 S. W. Cressy (Recalled), Rocky Ford, Colorado. 
 Recross-examination. 
 
 By Mr. Ashbaugh : 
 
 In speaking in my testimony yesterday about seepage water from 
 the ditches in Colorado getting back into the river, I would say the 
 seepage water from the Bessemer ditch would return to the river all 
 along its course down as far as the Huerfano river, and its lowest 
 end would be in range 62 west. Bob Creek ditch would deposit 
 seepage water back into the river along its course as far east as 
 range 56. The seepage water from the Bob Creek canal does not 
 return to the Arkansas river, so far as I know, east of range 58. At 
 that point it leaves the river and there is a dividing ridge running 
 along in ranges 56 and 57, and I don’t know of any seepage water 
 having yet found its wav back to the river unless it would be into 
 Horse creek in range 56 and passing down the course of Horse 
 creek. 
 
 3325 The Highline ditch would deposit seepage water along its 
 entire course as far, possibly as the east side of range 50. 
 
 The Oxford Farmers’ would deposit seepage water from its head 
 down as far as the Apish ipa on the west edge of range 58. 
 
924 
 
 THE STATE OF KANSAS VS. 
 
 The next would be the Otero canal, which if completed and re- 
 paired so that it would use water during the flood seasons of the 
 year, and if extended as the intention now is, would deposit seepage 
 water as far east as range 53. 
 
 The Gatlin canal would deposit seepage water as far as Timpas 
 creek on the east line of range 56. 
 
 The next in order would be the Holbrook ditch, which would 
 deposit seepage water into the river proper as far east as the center 
 of range 55, and also seepage water into Horse creek along in 
 range 54. 
 
 The next would be the Rocky Ford, which would deposit seepage 
 water as far east as Timpas creek in the east side of range 56. 
 
 The next is the Fort Lyon canal, which deposits water along the 
 river and also into Horse creek, Adobe creek, Gageby creek, Lime- 
 stone creek, Graveyard creek, and as far east as the west line of 
 range 45. 
 
 The Las Auimas town ditch and the Jones ditch would deposit 
 water into the river and the Purgatoire as far east as the east line 
 of range 52. 
 
 The Colorado-Kansas, Bed Rock and Kisee ditches, which take 
 water out of the river at the same headgates, would deposit 
 
 3326 water, as it is now constructed and used as far east as the 
 east line of range 45. The Amity ditch would deposit seep- 
 age water into the river. Sand creek, Buffalo creek, and as far east, 
 possibly, as the creek that empties into the river east of the Colorado- 
 Kansas State line. 
 
 The Lamar canal would deposit seepage water, as it is now built 
 and used, probably as far east as the center of range 43. 
 
 That is all, excepting the little ditches. The seepage water from 
 all these canals that return water to the river west of the Amity 
 canal would be used by the Amity canal when it needed it, unless 
 it would be the seepage water filling up the sand of the river that 
 don’t come to the surface at that point. But if they come to thesur- 
 ace below the headgate of the Amity canal and by that means in- 
 crease the flow of the river, they would still simply reinforce the 
 lower ditch, if there were a lower ditch that needed water. 
 
 The main effect of all this seepage water is to increase the amount 
 of water used by each ditch below the point where this seepage 
 water returns to the river. 
 
 Redirect examination. 
 
 By Mr. Hayt : 
 
 3327 I don’t undertake to state that that seepage water does not 
 manifest itself lower down the stream. It is possible that 
 
 there may be an underlying channel, so to speak, of sand, away 
 from the bed of the river, as is the case back here with the Bob 
 Creek canal, where there might be a ridge or obstruction of clay, 
 rock, or something of that kind, and it would pass down and go into 
 
f rtiE STATIC OF COLORADO ET AL. 
 
 the river away below. The only thing I speak of at the present 
 time is as it appears right now in the case of the Great Plains stor- 
 age reservoirs, where of course, there is a great deal of seepage tak- 
 ing place; that might go into the river immediately, or it might be 
 carried on down into the State of Kansas in some big sandy 
 
 3328 deposit. It might go down fifty miles. Of course we know 
 nothing about that. In speaking of this seepage water again 
 
 appearing, I am only stating that in regard to places at which it has 
 been observed. 
 
 That Fort Lyon canal is taking all the water out of the 
 river at their headgate and has been since the first of De- 
 cember. The headgate is located about three miles west of 
 La Junta and directly north of the Crooked arroyo. I think 
 La Junta is about seventy-eight miles from the State line. The 
 Jones ditch is carrying a small amount of water or was a 
 week ago. The Amity ditch two weeks ago was running. I had a 
 hundred feet turned past the Fort Lyon canal at that time to supply 
 the Amity, but they had a break in their canal and I had to turn 
 it out. If they have that break fixed now they are probably 
 
 3329 running what seepage water rises between the head of the 
 Fort Lyon and the head of the Amity. The Amity ditch 
 
 has recently and probably is now taking all of the water out of the 
 river, and each one of these ditches is doing the same thing, that is, 
 if they have use for it. If they want it they can take it as it 
 comes to their headgate. I don’t know as they have. You see that 
 is out of my district. But the Amity I know was doing that a week 
 or ten days ago. My opinion is — but I don’t know of my own per- 
 sonal knowledge — that there has been water running in the river 
 in western Kansas during this time. In my opinion the seepage 
 water from irrigated lands in Colorado are reaching Kansas at the 
 present time and did so during the season of 1904; and if there is 
 a large amount of water running in the river in Kansas at the pres- 
 ent time or during the last few months it certainly comes from seep- 
 age or out of some side stream below the headgate of the Fort Lyon 
 canal. 
 
 Las Animas, Colorado, Dec. 19, 1904. 
 3331 J. B. Lynch, Las Animas, Colorado. 
 
 Direct examination. 
 
 By Mr. Hayt : 
 
 I reside in Pueblo, Colorado. I am fifty years of age and at the 
 present time I am with the New York Life people. I have been a 
 railroad man for the last thirty odd years up to the last of July and 
 have spent the greater part of that time in Kansas. I was in the 
 engineering department ; that is, the mechanical engineering and 
 locomotive engineering, and before that was with a civil engineer- 
 ing party in the very early days. 
 
S26 
 
 THE STATE OP KANSAS VS. 
 
 My profession in both these lines brought me along the Arkansas 
 river. During the early part of 1867, 1868 and 1869 I was with a 
 surveying party assisting in the survey. I assisted in the survey of 
 the Santa Fe road from Topeka west out as far as Garden City^, and 
 then after that I was running a locomotive when I crossed this Arkan- 
 sas river daily, down in the extreme southern part of Kansas, down in 
 Sumner or Cowley county, I forget which. I was along the 
 
 3333 river about every month in those years, and my recollection is 
 that easily four-fifths of that time the river was what you would 
 
 have called a dry stream, from surface indications. Every now and 
 again perhaps sometimes it would run four or five miles and sometimes 
 for twenty-five miles you would not find any water at all, and then 
 you would find a pool where it rose above the sand. That was the 
 case except where we had local rains through the State that caused 
 a flooded condition of the river. The rise of the river from those 
 local rains would soon go down. I was along the river during the 
 summer months from day to day in those years. We got our water 
 for drinking and camping purposes generally by digging a hole 
 down in the sand right up to the bank of the river. There seemed 
 to be plenty of water below the sand. Sometimes it wouldn’t seem 
 to be more than two or three inches below the surface, and 
 
 3334 again a little above it. Sometimes we would find it in little 
 pools and places. As locomotive engineer I was on the 
 
 Southern Kansas division of the Santa Fe, and when I began it was 
 known as the old Leavenworth, Lawrence & Galveston, between 
 Cherry vale and Wellington, Kansas, and we crossed the river at a 
 little place called Oxford. I would cross the river every day, once 
 a day I think, for about eight years. I was on that run from 
 1880 to 1890, if I remember right. I have seen the river dry 
 many times at that point — -just blowing out there all over the 
 river. No water in it at all. And then again I have seen it flooded. 
 I have seen it dry at that point every year, and it would average 
 four-fifths of the year. I have had occasion to observe the 
 
 3335 water flowing in there during the last eight or ten years from 
 time to time — a great many times — and during the last ten 
 
 years I have been engaged as general live stock agent for the Santa 
 Fe, my territory extending from Newton, Kansas, to the western 
 line of Colorado, and in following this occupation I would be along 
 the river a great deal, and I have noticed it in reference to running 
 water. I can’t say but what there has been just as much water there 
 in the last eight years as ever before that. 
 
 Q. From your experience and observation have you noticed any 
 effect from the irrigation in Colorado upon the river in Kansas? 
 
 A. No sir. 
 
S^AlMC OR COtORADO Et At 
 
 927 
 
 Cross-examination. 
 
 3336 By Mr. Ashbaugh : 
 
 The river was dry four-fifths of the time at Oxford — easily that. 
 Really I believe it was more than that. I think it was nine-tenths 
 of the time. It was dry pretty nearly all of the time at Oxford. 
 
 I don’t know where the Ninnescah comes into the Arkansas. [ 
 think it is below the mouth of the Little Arkansas. 
 
 In looking at a railroad map of the State of Kansas, I guess, Ox- 
 ford is below the mouth of the Ninnescah, on the Arkansas river. 
 
 Yes, we do take water out of the Arkansas river in Colorado for 
 irrigation purposes, and yet the river is just exactly as large after 
 you have taken the water out as it was before. I am not very fa- 
 miliar with the irrigation systems in Colorado. 
 
 3338 Frank Kreybill, Las Animas, Colorado. 
 
 Direct examination. 
 
 By Mr. Hayt: 
 
 My residence is Las Animas, Colorado ; age fifty-two ; am clerk 
 of the district court and secretary of the Fort Lyon Canal Company. 
 I have been clerk of the district court for ten years and secretary 
 of the Fort Lyon Canal Company since 1897. I was connected with 
 the company previous to that time. The headgate of the Fort 
 Lyon canal is located about two miles west of La Junta. I think it 
 is in section 32, township 23, range 55. It is sixty feet wide on the 
 bottom at the intake, and there is six or six and a half feet of water 
 in depth. The slope of the bank is one-to-one. The length of the 
 canal is one hundred and fifteen miles, and it ends in Big 
 
 3339 Sandy creek. This is east from Las Animas about forty-five 
 miles, or possibly fifty. The Big Sandy is a tributary of the 
 
 Arkansas. This canal passes north of Las Animas about three 
 miles. It irrigates about 60,000 acres. This is the number of acres 
 under irrigation at the present time. There are 150,000 acres under 
 the canal. Those 60,000 acres of irrigated land are in Otero, Bent 
 and Prowers county. Quite an amount of it is tributary to the town 
 of Las Animas ; the balance of it is tributary to towns along 
 
 3340 the Arkansas river — to La Junta, Caddoa and Lamar. A 
 great deal of the land is seeded to wheat, and sugar beets are 
 
 raised quite extensively. The sugar beet industry is a growing one. 
 The average value of lands per acre is from $45 to $50. I was ac- 
 quainted with the country before this canal was built. Lands not 
 irrigated are worth about $1 to $2.50 per acre. I am acquainted with 
 the effect of seepage and return waters. Before the ditches were con- 
 structed I was up and down the river and the side streams were all 
 dry previous to irrigation and there was no running water, but after 
 the ditches were constructed and the water turned in these 
 
 3341 dry streams became all running. One of these dry streams 
 that now runs water is called Horse creek, about eight miles 
 
928 
 
 TfiE STATE OF KANSAS VS. 
 
 west of here. Adobe creek is a running stream ; and possibly each 
 one furnishes from two to five feet of water per second of time. 
 There is an arroyo that we call the Gageby arroyo about ten miles 
 due east, that furnishes about three cubic feet of water per second of 
 time. It has been running for the past ten years, I think, and pos- 
 sibly longer. There is Limestone creek, twenty-five miles east 
 of this point, which is a running stream now and furnishes possibly 
 two cubic feet of water. And I have noticed at other points along 
 the river the water comes into the river. It just seeps in out of the 
 ground. I think the flow of these return waters is a little larger in 
 the winter than it is in the summer, and it is continuous through- 
 out the year. 
 
 Cross-examination. 
 
 By Mr. Ashbaugh : 
 
 3342 As to how much time during the year the Fort Lyon canal 
 has all the water it wants, it depends upon the year. Prior to 
 
 1904, 1 might state, from thirty to sixty days it had all of the water it 
 wanted. That would be probably the average. During the balance 
 of the year we have to get along with what we can get. During 
 about ten months we could profitably use more water than we get. 
 The Fort Lyon canal is large enough and the dam is so constructed 
 that it can take the whole flow of the river at the average or normal 
 stage of the river. This morning we have about four hundred cubic 
 feet of water per second of time in the canal, and are storing it in the 
 reservoirs of the Arkansas Valley Sugar Beet and Irrigated 
 
 3343 Land Company. That is a different system from the Fort 
 Lyon, but we have a private arrangement with them by which 
 
 we take when we can get it more than our legal appropriation 
 and flow it through the canal. We have this arrangement so that 
 we can take 933 cubic feet. That is the decreed appropriation 
 now; it was 761. We went into the court at the last term and got 
 the appropriation for 172 feet to make the 933. So that the 
 decreed appropriation for the Fort Lyon canal at the present 
 time is 933 cubic feet per second of time. The return waters 
 from the whole length of the Fort Lyon canal are all west 
 of the Big Sandy, and east of the Big Sandy there are 
 
 3344 other ditches. Horse creek, Adobe creek and the others that 
 I spoke of are all west of the headgates of the canals lying 
 
 farther east on the river. Every particle of water that returns into 
 the river at any place I have described is subject to being taken by 
 canals lower down the stream before it could reach the State of 
 Kansas. 
 
TtlE STATE OF COLORADO KT AL, 
 
 929 
 
 Redirect examination. 
 
 By Mr. Hayt: 
 
 Our company has an arrangement with the Amity Company to 
 supply its reservoirs with water. The intake of the Amity canal is 
 near Prowers station, which point is on the Santa Fe railroad 
 3345 about twenty-five miles east of Las Animas. The water flows 
 through the Fort Lyon canal for forty miles and is delivered to 
 the Amity canal at Gageby arroyo. The Fort Lyon canal is taking 
 all the water running in the Arkansas river at its headgate. I think 
 it has been doing so for the past week. 
 
 3346 M. H. Murray, Las Animas, Colorado. 
 
 Direct examination. 
 
 By Mr. Lubers : 
 
 I am residing and have resided in Las Animas, Colorado, for about 
 twenty years. I am about sixty-three years of age and have lived 
 off and on in Colorado since 1863. I lived at the head of the Huer- 
 fano in 1865 and 1866. That is a tributary of the Arkansas river. 
 During this time I have been principally engaged in stock raising 
 and farming, and have had occasion to observe the flow of the water 
 in the Arkansas river in Colorado and also in Kansas. In 
 
 3347 1873 at a point about six miles west of Granada the river 
 was dry in the month of October. There were holes, I sup- 
 pose, in it, but at the point I speak of Mr. Graham was working 
 with a couple of scrapers and teams and some men making holes to 
 water his cattle. That is what called my attention to it. This was 
 about twenty miles from the Kansas State line, in Colorado. There 
 was one other time that I remember, but don’t remember exactly 
 the date, when we were rounding up cattle in an early day and the 
 Indians were fighting us and killing cattle and killing men. In 
 that year the river was dry down there in the month of Juty. We 
 were camped then on the river right opposite where Lakin is now 
 
 and were camped in the bed of the stream, principally for the 
 
 3348 purpose of getting water. A Mexican by the name of Ricardo 
 and myself while here were one day running away from the 
 
 Indians on horseback, and when we came to the river bank our 
 camp was located on a sand bar in the river and we had to dig holes 
 there in the sand to get water. I think Mr. Holly and Mr. Pomeroy 
 were camped there with us at that time. The balance of the people 
 were hired men. I think Lakin is about fifty miles east of the Colo- 
 rado*Kansas State line. I am not certain as to that. In December, 
 1863, I crossed the river this side of Bent’s old fort. There 
 
 3349 were nine men, a woman and the driver, and we went across 
 in the stage. It was a very low river then. Bent’s old fort 
 
 was about twelve or thirteen miles west of Las Animas. 
 
 59 — 7 
 
LHE STATE Otf KANSAS V& 
 
 Cross-examination. 
 
 By Mr. Ashbaugh : 
 
 Oh yes, I have seen lots of water in the river in the State of Kansas. 
 I couldn’t just exactly locate the time, but it was between 1863 and 
 1873. In 1875 we had a flood of water in September, about the largest 
 flood I ever saw in the river, except what we had this year, — the 
 highest water. Taking the year through, I think we have had the 
 highest water this year I ever saw in the valley east of this 
 3350 place, and I think we have had a greater supply this year 
 than we ever had. The times I spoke of when the river was 
 dry was in the extreme dry time of the year, and I think that 1873 
 was an extremely dry year, and I think 1863 was also extremely dry. 
 At other times there was plenty of running water in the river down 
 there. 
 
 Redirect examination. 
 
 By Mr. Hayt: 
 
 I have known of other times when there was very little water in 
 the river either here or down in Kansas ; and when I lived on the 
 Huerfano, farming there, in 1865, I only got one irrigatiou during 
 that year. I have seen the Arkansas river with very little water 
 running in it in western Kansas and eastern Colorado right along 
 in those years. The flood in September, 1875, of which I spoke, 
 was caused by heavy rains during August and September. The 
 rains were up west of us, I think all over the State. It was in the 
 nature of a rain and snow storm. It washed out the Santa Fe rail- 
 road bed from here down to Coolidge. 
 
 Recross-examination. 
 
 By Mr. Ashbaugh : 
 
 3351 I have seen the river frequently when it was low and very 
 frequently when it was high also. It is a variable stream, 
 
 and the amount of water flowing in it depends upon the general 
 rainfall and snow fall through the State of Colorado. 
 
 3352 Rueben Irwin, Las Animas, Colorado. 
 
 Direct examination. 
 
 By Mr. Hayt : 
 
 I was born in 1838 ; residence, Las Animas, Colorado ; occupa- 
 tion, hotel business. I have lived in Bent county since the fall of 
 1871. My acquaintance with the Arkansas river extends east to 
 Great Bend and west to the head of the Arkansas. In 1861 I 
 was in South Park a part of the time, down about Canon City and 
 
THE STATE OF COLORADO ET AL. 
 
 931 
 
 California gulch, on the head waters of the Arkansas river. 
 There was a good deal of timber on the head of the Arkansas 
 river in 1861. In the tributaries the timber extended from 
 Canon City or a little above clear to the head. There 
 
 3353 was more or less timber. Sawmills were scarce in the 
 country and very little timber was sawed except in the old- 
 
 fashioned way of hand sawing. The timber extended east I would 
 say from twenty to sixty miles along the tributaries. I wouldn’t 
 call it heavily timbered, because a great deal of it was 
 
 3354 scrubby. There was some first class timber, but as to its 
 being heavily timbered, a person couldn’t take it that way. 
 
 There was a good deal of cedar and pinon, but that has been taken 
 off for posts and wood. It shaded the ground pretty well. This 
 protected the snow and there were places we never saw bare until 
 after the timber was cut off. It lay all through the * * * It 
 formed into ice but it never ran out. It was packed hard. I 
 
 3355 have been up there off and on, and the last trip I was there 
 I believe was seven years ago this summer. I found it a 
 
 great deal different. There isn’t one-twentieth part of the snow in 
 June, July and August of what it used to be before, and the timber 
 is scarce. Practically, the sawing timber is all gone. The lack of 
 snow in late years I attribute to want of timber. (Objection.) In 1872 
 I was at the mouth of Sand creek and all along the river buffalo hunt- 
 ing. The mouth of Sand creek is forty-five miles below here 
 
 3356 (Las Animas). The old Cimarron crossing is away east of that, 
 or about eighteen miles west of Dodge City. In 1872 I was down 
 
 at the Cimarron crossing. I was there along from the middle of 
 June until December, back and forth at different places along the 
 river. The river in June, July and August of that year was pretty 
 well filled up, but in August and September it was very low. I saw 
 it so we had to dig to get water for our stock in the bed of 
 
 3357 the creek. That was in 1872. I saw the river several times 
 the next year, in 1873, at different places from Pueblo dowu 
 
 to Garden City, Kansas. I was there along from September to Jan- 
 uary. The water was low in the river then. In some places there 
 was no running water and in other places it stood in holes. Near 
 the State line there were two or three different stock men had to 
 scrape to get water for their stock. I mean they had to use a team 
 and scraper. They scraped in the bed of the river. I remember 
 one place they scraped for water was eight miles above Gra- 
 
 3358 nada, by Jim Crane’s place. I think it was in September or 
 October. In 1873 there was a rise in the river the last of 
 
 June and July. I remember in several years people would leave 
 Canon City and Pueblo on boats, that is, little slab boats. It would 
 run dry along down the river and leave the boats up. It wouldn’t 
 float them. The river would come through but it wouldn’t float the 
 boats. The high waters then generally came along in June and July. I 
 saw the river frequently in 1874 and 1875. The water was low down 
 about the State line during these years. 1 think the farthest down 
 
§ 3 f 2 THE STATE OP KANSAS V& 
 
 the river I went in 1857 was to Coolidge. The river was low at that 
 place. In some channels there wouldn’t be any running 
 
 3359 water at all and at times we could step across it. We took 
 out irrigating ditches just below where Lamar is now. That 
 
 was in 1872 and 1873. The flume that we put on the head was six 
 feet wide. It was pretty hard to get sufficient water for the ditch 
 that time on account of the lack of water. I have noticed buffalo 
 coming down to the river for water when they were unable to get 
 it. This incident occurred between Lincoln and Sargent at one 
 time; and then I saw it on the other side of Lakin, where they 
 would come in and follow the bed of the river to get water. I ob- 
 served this on two occasions. I have seen it at different 
 
 3360 times ; that is, different herds coming in. You see there was 
 no end to the herds of buffaloes in those days. I never 
 
 saw that except in the two years I have mentioned. One would 
 be compelled to go two miles, to my certain knowledge, to get run- 
 ning water. 
 
 I have had some experience in Indian fighting. The Indians 
 drove some of the fellows into the river, but I was farther north and 
 didn’t happen to be in the crowd. 
 
 Cross-examination. 
 
 By Mr. Ashbaugh : 
 
 The river was dry in Kansas before they cut the timber off 
 
 3361 in the mountains. The timber they cut off in the mountains 
 was saw timber and mining timber and post timber. The 
 
 effect of this would be to let the sun in so that the snow would melt 
 earlier in the year. ' I don’t know that there has not as much snow 
 fallen in the last ten years as there did in any other prior ten years, 
 but it has not lain on the ground but melts earlier. 
 
 The boats that I spoke of coming down from Pueblo, I have seen 
 pass the mouth of Sand creek where I was then living. I have 
 seen ties floated down the river, I think in 1874 or 1875, to 
 
 3362 be sold to the railroad company. The}' had a boom right 
 above town here. I have caught fish in the river this far up 
 
 by seining in the river. The fish were of a different class than we 
 have now. We caught a good many trout. I don’t think 
 
 3363 there was any cat fish. We did our fishing in the spring 
 and in the fall. I suppose that these times when I saw the 
 
 river dry down in Kansas were dry times of the year. In May the 
 river was at a low stage, but not dry. There was a little running 
 water in it. It came from the mountains. In June generally 
 the rains and the melting snows would cause a rise in the river. 
 Sometimes that rise would last for about forty-eight hours and there 
 would be a substantial flow in the river along through in here or a 
 light flow of water ail the time through June and July. Some- 
 times during the dry portion of the year there was running water 
 here when there was none in Kansas. I think that water sinks to 
 
THE STATE OF COLORADO ET AL. 
 
 933 
 
 an under current down into the sand and we always find it 
 
 3364 in the bed of the river during the dry season. When we 
 took out our ditch we had trouble in getting water for it all 
 
 the time. At some times of the year there would be. That ditch 
 is in existence, but I don’t know anything about whether it gets 
 water enough now or not. There are a good many times in the 
 year when these ditches here cannot get as much water as they need. 
 That ditch was about four feet wide at the bottom. These little 
 boats I speak of were flat-boats to carry a man or two. The biggest 
 one I ever got was made of eighteen-foot lumber, two inches thick. 
 
 3365 John Murphy, Las Animas, Colorado. 
 
 Direct examination. 
 
 By Mr. Hayt : 
 
 I am fifty- five years old; residence Las Animas; occupation 
 printer and publisher. I am publisher and proprietor of the Las 
 Animas Ledger. I have been publishing that paper in this town 
 for twenty years. I have been superintendent of schools of Bent 
 county, Colorado, from 1881 to 1889, and afterwards from 1891 to 
 1895.' 
 
 I was acquainted with the Arkansas river in 1867. I saw the 
 river in the State of Kansas and in Colorado from Great Bend 
 
 3366 west. I happened to be along the river at that time because 
 I was a soldier. We were travelling as an escort to a large 
 
 wagon train that came across from Fort Harker and struck the river 
 there at Great Bend. We camped on Walnut creek for half a day. 
 I particularly remember that place because we were camped there 
 and four or five of us went over to the river about a mile across 
 from where we were camped on Walnut creek and we spent an hour 
 or two there gathering plums. There were a number of sand-dunes 
 among the plum bushes. 
 
 As to the flow of water in Walnut creek, as I remember it now, 
 there was some I think. Only a pool of water. I think the water 
 was still. 
 
 In 1867 at Great Bend, Kansas, we didn’t attempt to cross the 
 river. There were large sand dunes that came down to the bank. 
 They were covered with plum bushes, and right down close to the 
 bank of the river appeared to be a jump-off of four or five feet, and 
 right in close to that bank there looked to be water, probably four 
 or five or six or seven feet wide, but the balance of the stream 
 
 3367 clear across was dry with the exception of one or two little 
 rivulets running along through it. We could cross it dry- 
 
 shod at that time, but I didn’t attempt to do it right there. But 
 farther west, probably the same evening, we crossed it, and prob- 
 ably we crossed it dozens of times while on that trip. We travelled 
 about fifteen miles a day. There were ninety wagons, those large 
 “ prairie schooners” drawn by oxen. As to our own outfit, I think 
 
934 
 
 THE ST \TE OF KANSAS VS. 
 
 we bad six mule teams. We generally camped close to the river 
 
 3368 where it was handy to get water. We first came upon the river 
 at Great Bend the latter part of August or the fore part of Sep- 
 tember, I have forgotten which. As to the condition of the river from 
 Great Bend, Kansas, to Fort Lvon, Colorado, for a long distance, prob- 
 ably nearly all the way up to the Colorado line, the river was about in 
 the condition as I said. You could walk across it dry-shod most 
 any place. There was nothing in it but those narrow rivulets run- 
 ning through the sand that you could step across at any 
 
 3369 place. There appeared to be a greater volume of water in 
 the river west of the State line. We came west to Fort Lyon — 
 
 that is the new fort. The new Fort Lyon was six miles east of the 
 present town of Las Animas, and old Fort Lyon was twenty-five 
 miles east of the present town of Las Animas. I remember a par- 
 ticular incident that illustrates the condition of the water in the 
 river in Colorado about Fort Lyon in 1867. When we came to Fort 
 Lyon our escort duty was practically over then because the train we 
 were on was going to New Mexico and from there they went on 
 alone. We camped at Fort Lyon and commenced to clean up. We 
 rigged up a spring-board right on the bank of the river below the 
 fort. It was about eight feet above the water, and we used to run 
 out on the spring-board and dive off into the river. I recall one 
 other incident that illustrates the condition of the water. We re- 
 mained at Fort Lyon until early in October. The regiment I be- 
 longed to was ordered west. It was ordered to New Mexico. The 
 company I belonged to was the last one that moved. It was on es- 
 cort duty with a stage between here and Dodge. They came along 
 the fore part of October and we went on from here to Fort Garland, 
 in which we remained for about two years; but when we reached 
 Rocky Ford we passed up the north -side from Fort Lyon and crossed 
 the river on the south side of Rocky Ford. We had to take 
 
 3370 our clothes off to wade the stream. We took them in a 
 bundle and carried them on our heads. This was in October, 
 
 1867. I have never seen the river in Kansas during any other year 
 after 1867. 
 
 Cross-examination. 
 
 By Mr. Ashbaugii : 
 
 It was about the middle of October in 1867 we had to wade the 
 river here at Rocky Ford, and it was probably about the middle of 
 September that we used the spring-board to dive off into the river. 
 It was perhaps the latter part of August and early Septem- 
 
 3371 ber that we found the river dry below. I don’t know 
 whether the river was higher at Rocky Ford at that time- 
 
 than it had beeu at the time we found it so low in Kansas. It ap- 
 peared to be the natural condition of the river. So when it was 
 dry down there we found water in the river flowing here (Las 
 Animas). So I suppose it was not a rise of water here but a sinking. 
 
THIS STATE OF COLORADO ET AL. 
 
 935 
 
 away of the water below. I can’t tell you what became of all that 
 water, but from what I have read about the matter since I 
 
 3372 think it sank into the sands. It must have done so. Mv knowl- 
 edge as to the river in Kansas was all confined to that trip. 
 
 trip. Old Fort Lyon was flooded out in the spring of 1867, and for 
 that reason they moved the fort up the river. Bent’s fort 
 
 3373 was located just east of old Fort Lyon. You might say the 
 river ran right along the foot of it. Bent’s fort was practi- 
 cally a part of old Fort Lyon. There was another Bent’s fort of an 
 earlier date than that, located twelve or fourteen miles west of Las 
 Animas. 
 
 Redirect examination. 
 
 By Mr. Hayt : 
 
 3374 I didn’t see the freshet in 1867. I have learned the reason 
 for the change in the location of Fort Lyon from others. 
 
 There probably were other reasons for the change, but I don’t know 
 them personally. Among the other reasons I have heard is that the 
 land belonged to Colonel Bent and it was soon necessary to give it 
 up, and the freshets simply hastened the change. The new location 
 was upon the Government reservation. 
 
 Lamar, Colorado, December 19, 20, 1904. 
 
 3376 J. K. Doughty, Lamar, Colorado. 
 
 Direct examination. 
 
 By Mr. Hayt : 
 
 My age is fifty-two ; I am an attorney at law ; have resided in this 
 county since December, 1886. This county was originally Bent 
 county, and when it was formed in 1889 I was appointed county 
 judge and was re-elected and held the position for nearly 
 
 3377 seven years. I have been county attorney during 1902 and 
 1903. I lived in the State of Kansas from the fall of 1878 
 
 until December, 1886. I first located in Kansas at Larned, Pawnee 
 county. Larned was on the Arkansas river, and I had frequent 
 occasions to see the river during those years. I was on the river 
 during the spring and fall frequently, hunting geese, and at other 
 times during the year I would be there, both riding and 
 
 3378 walking. The condition of the river at that point as to water 
 from 1878 to 1884 below what was known as Pawnee creek 
 
 showed some water along one of the banks, but above Pawnee creek 
 on the river it was dry most of the time. Occasionally there would 
 be pools of water, but it was practically dry. The bridge across the 
 Arkansas river is south of Larned, and Pawnee creek flows into the 
 river between the bridge and the town. There is also a little bridge 
 over the Pawmee, and then an island, before you reach the Arkansas 
 River bridge. On our hunting expeditions we generally went down 
 
936 
 
 THE STATE OF KANSAS VS. 
 
 the river, because there was water in the river there from this creek, 
 but occasionally we went up the river, aud at such times we would 
 go two or three miles each way. We went down the river because 
 there was more water and more geese. 
 
 From 1884 to 1886 I lived on a claim south of Larned 
 
 3379 about three miles. The river was between the town and my 
 place. I crossed the river nearly every morning and night 
 
 going and coining to and from town. I found the river during 
 these years with reference to flowing water just the same as in the 
 years before, with the exception that at flood times there would be 
 plenty of water but at other times the river would be practically 
 dry. The flood periods were not frequent. They occurred occa- 
 sionally. The water would come up and subside again within two 
 or three days to a week, according to the amount of water. I have 
 seen the river dry nearly all seasons. The flood would sometimes 
 come in the spring and sometimes in the fall, and occasionally in 
 the summer. In 1882 a number of us organized a company 
 
 3380 for the purpose of constructing a ditch, and made the survey, 
 and I assisted on the survey. It was between the railroad 
 
 and the river bank. We went to the river bank, and after doing con- 
 siderable work there we abandoned the whole project because we 
 were satisfied we couldn’t get water enough to do anything with it. 
 That was in 1882. In 1879, 1880 and 1881 the conditions were very 
 bad there. Crops were almost a failure. I know the condition of 
 the country became so bad it broke me up in business. This was 
 the prime cause of my starting the ditch for irrigation. We thought 
 it would benefit the country and that we could raise crops with 
 surety if we could get the water. I didn’t get my farm until 
 
 3381 1883. At that time we depended entirely upon rainfall. 
 Wherever there were any crops along the banks of the stream 
 
 they were a failure, as well as otherwise. I noticed some difference 
 in some places, and that is what we called the sand hills. We 
 always claimed down there that the sand hills would grow crops 
 when the other country would not, because the sand when it rained 
 would hold the moisture longer and they could raise part of a crop* 
 not enough to pay for the trouble of putting it in, but they could 
 raise a little crop. The growing of crops didn’t depend upon the 
 water in the river; it had no connection with it, in fact in that 
 country most of the farmers were on what we call second bottom, 
 up above the river bottom. I am not engaged in farming at the 
 present time. I own some land near Lamar, about eighty acres 
 under ditch and about five hundred acres outside of the ditch. 
 
 Cross-examination. 
 
 Bv Mr. Ashbaugh : 
 
 3382 I am not giving my attention to farming now, but prac- 
 ticing law. I haven’t farmed any in this country. I was 
 
 practicing law at Larned. I conducted my farm south of that town, 
 
THE STATE OF COLORADO ET AL. 
 
 937 
 
 but I didn’t do any work myself. During the year 1879 the river 
 was dry more or less of the time except in flood times. That is, what 
 I call dry. I couldn’t answer how much of the year the river was 
 dry. It would be impossible for anyone to answer. I wouldn’t say 
 whether it was dry six months of the year 1879. I couldn’t tell how 
 much of the year 1880 it was dry. I say every time I saw 
 
 3383 it — and I saw it frequently — it was dry. I wouldn’t say it 
 was dry ten months of the year, nor six monts, nor four 
 
 months. As to 1881, I wouldn’t answer any more definitely than I 
 have. 1 wouldn’t sav it was dry four months of the year. I said 
 when I saw it it was dry. As to 1882, I answer the same way, that 
 when I saw it it was mostly dry, but I wouldn’t now state whether 
 it was three, five, seven or nine months. As to 1884, I will say, 
 putting it all together, it would be dry — what I call dry — at 
 
 3384 least seven or eight months of the time. As far as the climate 
 was concerned, there was more rainfall in 1884 than there had 
 
 been in the preceding years. As far as my observation went tiie 
 river was practically the same. I couldn’t say how much we ex- 
 pended on the ditch in 1882. Personally, I spent §40, besides about 
 two months’ time. Several hundred dollars were expended on that 
 work. But as to the amount I couldn’t tell you. I should 
 
 3385 judge they ran the ditcher a mile or so from the river. They 
 didn’t get any water, because they abandoned the property, 
 
 because they never considered they would be able to get water into 
 it sufficiently to do any good. From my description of the river as 
 I saw it during the five years preceding, there never has been water 
 to go into the ditch except at flood times, and these floods would 
 last two or three days or a week. As to whether we began an irri- 
 gating ditch with a prospect of getting water Only at fbod times, 
 which would last only three or four days or a week at a time, I 
 don’t know what the idea of the other parties was. (Objection.) 
 I went into the scheme because the rest went into it. I know 
 
 3386 there was no great flow of water in the river. As to a spring 
 rise, I have known the river to have water in it in the spring. 
 
 We call them floods. I never heard of a spring rise while I lived 
 at Larned, and never heard the term used. I couldn’t say that I 
 ever knew a flood to last longer than a week, but right at the bridge 
 there at Larned it might spread out a quarter of a mile to a mile 
 from the south bank. They didn’t all come from rainfall 
 
 3387 there; they all came down the river. We called them floods. 
 They were from the section of country west of us. I never 
 
 heard of it in my life during those early years that the spring rises 
 came from the melting of the snows in the mountains or from the 
 rains in the mountains. 
 
 I think the railroad was finished through Larned in 1876. We 
 would go hunting in the spring and the geese would be down the 
 river from the town in a few puddles that would be in the river. 
 Some of the first bottom lands were cultivated then, but not 
 
 3388 as a rule. On the bottom lands in places you could strike 
 water at five feet, in other places at ten or twelve. Crops 
 
938 
 
 THE STATE OF KANSAS VS. 
 
 that were raised were corn, millet, cane and occasionally a little 
 wheat. I never knew what alfalfa was until I came here. I never 
 heard of it down there. I don’t believe I ever heard the subject 
 discussed as to the water in the wells on the first bottom lands being 
 higher at different seasons of the year. I have passed through there 
 only on the train lately. The wells back on the second bottoms 
 would go from twenty to one hundred and fifty feet to strike 
 
 3389 water, and they didn’t always strike water. On the bottom 
 lands I don’t know whether the} 7 " struck water above or below 
 
 the water level of the river. 
 
 Redirect examination. 
 
 By Mr. Hayt : 
 
 As to the meaning of the term “ dry river,” I call it dry because 
 on these hunting expeditions I could walk the river or cross it at 
 almost any point. There was no running water to speak of below 
 the town where this Pawnee river emptied its water. I re- 
 
 3390 member the first time I saw the river and the impression it 
 produced ou my mind. (Objection.) I arrived at Larned 
 
 at night and went to the river to see it. Prior to that time I lived 
 in Cincinnati, on the Ohio river, and I wanted to see this river, so I 
 went down there and found there was no water in it, and I laughed 
 at them for calling it a river. I remember that very distinctly. I 
 don’t know of my own knowledge whether the rainfall in Kansas is 
 greater than the rainfall in Colorado. The idea that was discussed 
 in putting this ditch in contemplated the building of a dam across 
 the river to turn the water into the ditch, and the land that was irri- 
 gated was in the vicinity of Larned, and after we did all the work 
 and expended what money we had — I didn’t have very much to 
 say in the management of. the company and I didn’t really know 
 when they sold the outfit. I never got any returns anyhow. I 
 know they abandoned the ditch because they concluded it would 
 take too much money to dam the river and they didn’t think they 
 could get a sufficient supply of water to justify the expense. (Ob- 
 jection.) 
 
 3392 C. P. Thoman, Lamar, Colorado. 
 
 Direct examination. 
 
 By Mr. Hayt : 
 
 I am fifty-six years of age, am engaged in real estate and farming, 
 and my farm is located about three miles west of Lamar, and I re- 
 side in Powers count} 7 , Colorado. I am farming about two hundred 
 acres of land, growing alfalfa, wheat, corn, cane, oats, cantaloupes 
 and sugar beets, and I irrigate for all of them, and without irriga- 
 tion could raise nothing. 
 
THE STATE OF COLORADO ET AL. 
 
 939 
 
 I was clerk of the district court for five years and register of the 
 United States land office at Lamar, for four years. I located here 
 at Lamar in October, 1886, and came from the State of Kansas, to 
 which latter State I came in 1879 and lived there until 1886, and 
 the biggest portion of that time I was living in Harper county, and 
 I lived part of the time in Wichita. While I was living in Wichita 
 in the spring of 1879, in April, May and part of June, I saw the 
 river very frequently. I travelled from Wichita to Dodge 
 
 3394 City in a wagon up the river, and I saw it between those 
 points all along the road. I also returned the same way. 
 
 The wagon road was along the line of the Atchison, Topeka & Santa 
 Fe railroad, and was not in sight of the river all the time but was a 
 good portion of it. We started on the trip in April, only stayed 
 three days in Dodge City, and returned during the same month. 
 The country at that time was very unsettled, except at certain 
 points, and it was very difficult to obtain water for our horses, and 
 we generally managed when we could to go down to the river and 
 water them, and in one instance I remember we had to dig down in 
 the sand to get water. In some places it would be running a little in a 
 small stream, and we found pools. It was quite low at Dodge 
 
 3395 City, and right at Wichita during the time we were there it 
 rained for nearly three days and there was some water came 
 
 down, but after we left Wichita about ten miles there was no more 
 rain and there was practically no water in the river from there to 
 Dodge. The Little Arkansas river brought most of the water that 
 was in the Big river at Wichita. The water there in the river came 
 from local rains, as it was practically dry until the rain came. I 
 saw the river a number of times each year I lived there. Fre- 
 quently between Wichita and other points along the river, and to Ar- 
 kansas City, I saw the river quite often. Usually during the spring 
 and winter and late fall the river was very low from 1879 to 1886. 
 Frequently during the summer time there was some water in it, 
 and sometimes there was quite a flood down in that part of 
 
 3396 the country. Down at Arkansas City when it was low it 
 usually was probably fifty or sixty feet wide, and a very 
 
 shallow stream, I should judge six or eight inches deep, and about 
 the same at Wichita. I saw it frequently at Arkansas City. Al- 
 though I lived about thirty miles west of there, I very frequently 
 went there to trade and on other business, as it was one of my trad- 
 ing points. 
 
 The boom in Garden City was in 1885, and there was a great deal 
 of rain in that part of Kansas where I lived in that year, and 1 
 drove with a wagon from Harper county to Garden City, and a 
 great deal of the prairie between those points was covered with 
 water from rainfall a good portion of the time, as it was raining con- 
 tinually, or quite often. This was in May of that year. I 
 
 3397 never heard the theory advanced in Kansas that the rainfall 
 was extending westward. When I located in Colorado in 
 
 1886 the country was just beginning to settle up and there were no 
 
940 
 
 THE STATE OF KANSAS Vb. 
 
 irrigation ditches here. I know about the time the Fort Lyon 
 ditch, the largest in this vicinity, was opened up for irrigation in 
 1889, and the Amity ditch has had a small amount of water in it 
 during that time or later, about 1892. There were other smaller 
 ditches that had some water in them prior to that time. There were 
 no ditches in this vicinity running water prior to 1886. My 
 
 3398 observation has been that the snow fall in the mountains had 
 very little to do with the rise in the river generally, because 
 
 when the Government weather observer at Denver would report 
 that there was practically no snow in the mountains — which was 
 the case last year, for instance — we had an abundance of water dur- 
 ing the entire season, caused by rainfall not only in the mountains 
 but over the country east of the mountains. Generally speaking, 
 everybody had an abundance of water last year, both in Kansas 
 and Colorado. 
 
 I have dug wells on my own place and have seen a good many 
 other wells dug. The wells that we dug early in the settlement of 
 this country had to be dug very deep. For instance, I know of one 
 well about two miles north of town here that was dug to 
 
 3399 a depth of one hundred and fifteen feet, and it had 
 scarcely a sufficient amount of water to water the domestic 
 
 stock. But since that time and at the present time the water has 
 risen in the well to forty-five feet from the surface and has been 
 standing at that depth for a number of years past. There are other 
 wells in a great many places where the water rises to the surface on 
 the ground where formerly it was entirely dry. The seepage water 
 is increasing with great rapidity. All these draws over north of 
 the river where the principal irrigation is going on are now running 
 water. Draws or small creeks that were formerly entirely dry now 
 run a good stream of water, and that water is returning to the river. It 
 is also causing the river to have a greater and steadier and more con- 
 tinuous flow of water than it formerly had. There is Lime- 
 
 3400 stone creek over north here, I should judge about fourteen 
 miles west of Lamar, that has a good running stream of 
 
 water. Graveyard creek, ten miles west of Lamar, has a good stream 
 of water. There is a creek called the Pleasant Valley, which was 
 practically no creek but simply a draw, spreading out on nice, level 
 ground, very fine land, but now there is a stream of water through it, 
 but the land on each side of that stream has become swampy and has 
 to be drained in order to be utilized for farming purposes. There is a 
 stream right north of Lainar which has a good stream of water running 
 to the river. In fact all those little streams north of the river. There 
 is Buffalo creek. The other one there has no name ; it is just sim- 
 ply a draw. In fact all of the draws and depressions under the 
 Fort Lyon canal that were formerly entirely dry now have more or 
 less water in them and a great deal of land is becoming entirely too 
 wet, especially towards the river, in consequence of the irrigation 
 from the ditches above. And all of this irrigated land in this 
 
 3401 vicinity drains toward the Arkansas river. A person can no- 
 tice the water increasing in the river even where there are 
 
*HlE STATE OF COLORADO ET AL. 
 
 §41 
 
 Do streams. A person can notice that all along the river bed. In 
 fact I think it was in the fall of 1887 and 1888 I travelled up and 
 down the Arkansas river for two miles and there was not a drop of 
 water in sight any where. Now there is a constant stream of water 
 running all along the bed of the river. There is never a time but 
 what there is water there. And I attribute this to the water from 
 irrigation. The water percolates through the soil back to the river 
 after being used oil the land. I have not been through western 
 Kansas of late years, only on the railroad. I was along there a year 
 ago last August, in 1903, in the vicinity of Harper county, 
 
 3402 Kansas. I sold a farm there of one hundred and sixty 
 acres in the spring of 1886 for $3000. There was a 
 
 drought there in 1866 and the price of land went down in value. I 
 think it was in the spring of 1887 that this same land I had sold for 
 $3000 sold for $1,800, and eighteen months after that it sold again 
 for $1,100. I know of my own knowledge that the land in that 
 locality since 1887 has increased in value. (Objection.) The de- 
 preciation of land values during those years was caused by the 
 failure of crops by reason of drought, principally. When I lived in 
 that vicinity the farmers depended entirely upon the rainfall for 
 their crops. I was too far away from the river to possibly get 
 
 3403 any benefit from it if there was any benefit. During the 
 time I lived in Harper county I never heard the theory ad- 
 vanced that the river had an effect on the crops in the locality of 
 Arkansas City. During the years I lived there I have seen corn 
 burn up right in the river bottom close to Wichita, and have seen 
 crop failures close to the river there. 
 
 Cross-examination. 
 
 By Mr. Ashbaugh : 
 
 I began irrigating here as soon as the ditches were built along 
 here. The first ditch that had water turned in I think was 
 
 3404 in 1888. I was in Wichita nearly three months. 
 
 I should judge the Ninnescah river was from twenty to 
 twenty-five miles distant from my place in Harper county. I have 
 crossed it. It was a deep, narrow stream with a sandy bottom. I 
 have seen it partly dry, but not entirely. The first time I ever saw the 
 Arkansas river at Wichita it was just a very narrow little stream 
 which I should judge was fifty or sixty feet wide and very 
 
 3405 shallow. This was right at the foot of Douglas Ave. in the 
 city of Wichita. When I crossed it later in the season in the 
 
 summer there was a pretty fair flow of water in it. I then crossed 
 the Douglas Ave. bridge. It was a wooden bridge in the summer 
 of 1879. In 1880, 1881 and 1882 I crossed the bridge almost every 
 year two or three times, and part of the time there was a pretty fair 
 flow of water, I should say a couple of feet deep, and sometimes it 
 would spread over the entire bed of the river from bank to bank 
 
842 
 
 TflE STATE OF EAttSAS V8. 
 
 and it would be two or three feet deep in the channel. When 
 
 3406 I crossed the river in 1880 1 think they had constructed an iron 
 bridge. It spanned the width of the river, and I should think 
 
 was six or seven hundred feet long. I have seen the river there 
 when the water was flowing from bank to bank. I don’t know that 
 I can say just when but I have seen it a number of times. When I 
 went up the river in April, 1879 there was very little water in the 
 river and no more above Hutchinson than at Hutchinson. I should 
 judge the Ninnescah was a larger stream than the Little Ar- 
 
 3407 kansas. The water flowing under the Douglas Ave. bridge 
 at Wichita did not come from the Little river. There was 
 
 some little water coming down the river. After we went up the 
 river it rained shortly. That was getting along towards May, and 
 we frequently had rains there in May. 
 
 Examining Complainant’s Exhibit A-l, I recognize that as a 
 stream of water with a bridge across it, but where it is I don’t know. 
 It looks like the old wooden bridge on Douglas Ave. at Wichita that 
 I crossed in 1879. It may be it. I think it is. I should 
 
 3408 judge the water as shown by that picture was six or seven 
 hundred feet wide, and it may possibly be eight hundred. 
 
 The water shown there was high water. I wouldn’t judge it was 
 more than two or three or four feet from the water as shown in that 
 picture up to the bridge. I should think those lower braces that 
 run down onto the supports below are within two or three feet of 
 the top of the bridge. The water is now shown there twelve feet 
 below the bridge. 
 
 3409 Examining Complainant’s Exhibit A-2, that might be the 
 iron bridge on the river. I don’t recognize it from the 
 
 picture. I never saw the river so high, apparently, as it seems to 
 be as shown in this picture. As shown from that picture I 
 wouldn’t think the water was more than two or three feet below the 
 bridge. 
 
 Examining Complainant’s Exhibit A-3, that looks like the 
 iron bridge across the river at Wichita, but I wouldn’t say 
 
 3410 that it was. I crossed the bridge at Wichita in 1880 and 
 1881. 
 
 Examining Complainant’s Exhibit A-41, that looks similar to the 
 same bridge. The water is not as high as the other water. There 
 is considerable water there. 
 
 In Exhibit A-41, it looks like there was much more space 
 
 3412 between the bridge than in the other pictures. The stone 
 abutments do not show to me the same in Exhibit A-41 as 
 
 they do in Exhibit A-3, because in Exhibit A-3, it appears straight 
 up and down while in Exhibit A-41 it appears to have a jog there. 
 The water in Exhibit A-3 doesn’t appear to be as high as in 
 
 3413 those other pictures. 
 
 When I was in Garden City in 1885 I think they were ir- 
 rigating there a little. I was in Garden City only two days and 
 didn’t go to examine the ditches. The city in 1885 and 1886 was 
 
^Me si?ATE 6R COLORADO Rl? At. 
 
 §43 
 
 building a great many houses. We had a tremendous boom at 
 Lamar in 1887 and there were no ditches. The boom, as I learned 
 it in Garden City, was because of the increased settlement of 
 
 3414 the country all over western Kansas. When they were settling 
 up the country around Garden City for two or three years 
 
 the idea was scouted that it was a dry country, by eastern people, 
 and they took that land up in large quantities. They didn’t dig 
 the ditches where the principal part of the settlement was going on. 
 It was five or six hundred feet above the river. It was impossible 
 to dig ditches there. There might have been at least five ditches 
 around Garden City in operation in 1885, but I didn’t see a 
 
 3415 ditch. I heard there was a ditch before I came there. I 
 don’t think the basis of the boom at Garden City was because 
 
 part of the vicinity around there was under irrigation. I think the 
 large trade made the boom at Garden City. The United 
 
 3416 States land office was then located there. The water was 
 turned into the Fort Lyon canal in 1889 and into the Amity 
 
 a very little in 1890, and in 1892. The rainfall theory extended up 
 as far as Lamar for a little while. In 1887 it rained a good deal 
 here at Lamar and the idea was scouted by a good many people that 
 it was necessary to build ditches for irrigating purposes. When I 
 came here and before irrigation was in operation there was only very 
 little vegetation on the land down to the banks of the river. In its 
 natural state that condition continues down to the present. 
 
 3417 The increase in the flow of the river from seepage extends 
 as far as I have seen it on down towards Kansas. It runs 
 
 down to Coolidge and beyond that some distance, but it sinks there. 
 It always has done so. Around here some of the ditches get all 
 they need all the time while others do not. It depends upon the 
 priorities of the ditches. The small ditches are the earlier in 
 
 3418 priority. The large ditches through Prowers county do not 
 get as much water as they need during the dry season of the 
 
 year. Then this seepage water that would return above the head- 
 gates of those ditches would be taken up by those ditches ; but the 
 principal ditch that takes the most of the water through Prowers 
 county is sixty miles or more above here ; that is the Fort Lyon 
 canal. The seepage water from the Fort Lyon canal, above the head- 
 gate of the Amity canal, runs right down those streams and runs into 
 the river without any trouble. It doesn’t have to cross the Amity 
 canal. The headgate of the Amity canal is only eight miles above 
 Lamar, while these streams are fourteen or fifteen miles above Lamar, 
 and the Buffalo stream I testified to near Granada, rises from the 
 Amity canal. The seepage water from the Fort Lyon canal 
 
 3419 would be absorbed by the Amity canal, I presume. The east- 
 ern terminus of the Fort Lyon canal was in the Big Sandy creek 
 
 and the eastern terminus of the Amity canal is the State line, I think. 
 I think it crosses Horse creek. If the Amity canal extends into Kansas 
 I think it doesn’t always have water in it, but it has water in it below 
 
944 
 
 THE STATE OF KANSAS V§. 
 
 Horse creek. But I haven’t been down there for a year or 
 
 3420 two and may be mistaken. There are a number of other canals 
 in Prowers county. The seepage water from the Kicking Bird 
 canal and from the reservoirs would have to go down forty or 
 
 3421 fifty feet into the ground and under the Fort Lyon canal in 
 order to get into the Arkansas river. The seepage from the 
 
 Fort Lyon canal and the reservoir on the north side of the river in 
 order to get into the river would have to come in under the Amity 
 canal. The Satana canal is a feeder of the reservoirs north of 
 here. 
 
 3422 The river sand allows a great deal of water to percolate 
 through the soil below it, and immediately below the dam 
 
 which they have constructed across the river the water rises again 
 and runs in a stream on down below. All the seepage water which 
 comes back into the river and flows in the river would be taken up 
 by any ditch which is farther down the river, if the ditch 
 
 3423 needed it. 
 
 I remember there was a drought in Harper county in 1886, 
 and I sold my land before that drought set in. I say they didn’t 
 have a good crop in Harper and Kingman counties in 1886. 
 
 Examination by Mr. Campbell : 
 
 3424 I never saw the snow have any appreciable effect upon the 
 flow of the Arkansas river. Of course when there was snow 
 
 in the mountains and a big rainfall there and it turned warm, it 
 would increase the flow. The Arkansas river gets its water supply 
 from rainfall during the summer up in the mountains and at the 
 foot hills and through the creeks tributary to the river. The snows 
 in the mountains have very little appreciable effect upon the rise 
 and fall of the river. During the summer season the source 
 
 3425 of supply of the Arkansas river is from rainfall. I have in- 
 vestigated that subject pretty thoroughly. The water in the 
 
 3426 Arkansas river comes from local rain storms more than from 
 any other source. The snows in the mountains at the head 
 
 of the Arkansas river melt very slowly, and when they melt I don’t 
 think they have any appreciable effect upon the waters of the 
 Arkansas river. 
 
 Redirect examination. 
 
 By Mr. Hayt : 
 
 I want to explain that the biggest floods we have had here in the 
 Arkansas river for a number of years came at a time of the year 
 when there was no possibility of an} 7 snow melting in the moun- 
 tains, and early in the years when, as I stated, the weather observer 
 at Denver would report that there was practically no snow in the 
 
'IftF St AT 15 OF COLORADO Et At. 
 
 945 
 
 mountains — which was the case last year — we have had a bet- 
 
 3427 ter rain and a better supply of water in the river than at any 
 other time, and during the years when there was an abun- 
 dance of snow in the mountains, when there was a large supply, when 
 all the railroads were blockaded, which they were frequently, — dur- 
 ing those years we have suffered for want of water more than in any 
 other years. That is the reason I say it has no appreciable effect, 
 and by that I mean all along the river down here east from Lamar. 
 Possibly it might have an effect upon the river in the mountains or 
 in the vicinity of Canon City or Pueblo. (Objection.) I think it 
 has a local effect. 
 
 In referring to Complainant’s Exhibit A-2, I would judge from 
 the picture that there is water in the river — that there is water flow- 
 ing under the bridge — but as to the depth of the water I 
 
 3428 couldn’t tell. It appears to me that there is water from bank 
 to bank, but as I am not an expert in photography I am very 
 
 easily deceived by pictures. 
 
 Examination By Mr. Campbell: 
 
 1904 was quite a wet season. No, when I said that the melting 
 of snow in the mountains has no effect on the waters of the Arkansas 
 river, I am not basing my judgment on the rainfall of 1904. I have 
 noticed that ever since I have been here, for the last eighteen years, 
 but I only cited this year because this was one of the marked sea- 
 sons. The snow and ice in those mountains melts quite slow 
 
 3429 and is a good deal like it is on the prairie. In this dry at- 
 mosphere the snow melting during the middle of the day 
 
 will largely evaporate and some of it will be absorbed into the soil. 
 During the night it freezes again, which also dries up the water, and 
 I have seen snow fall right here on these prairies six inches deep 
 and melt away and the ground wouldn’t be wet down two inches. I 
 have seen this frequently. I don’t say that the snow fall in the 
 mountains does not increase the water in the river to some extent, 
 but not to a very large extent — not appreciably. In some years it 
 increases it more than in others, but I wouldn’t think as a rule that 
 it increases one-tenth of one per cent, of the flow of the water in the 
 river here at Lamar. I think that if we had the same amount of 
 rainfall we would have as much water here in the summer as if 
 there were no snow in the mountains above the Royal gorge. 
 
 3430 John Gores, Lamar, Colorado. 
 
 Direct examination. 
 
 By Mr. Hayt : 
 
 I am sixty-seven years of age and reside at Holly, Colorado, and 
 am a carpenter and mechanic by trade. I have lived here since 
 1875. In 1871, I lived at Byron, or what they call Granada, Colo- 
 60 -7 
 
§4$ LfiE S'TATE OE KANSAS VS. 
 
 rado. I lived there about a year and a half. Granada is about 
 nine or ten miles west of the Kansas-Colorado line. In 1868 
 
 3431 I was at Fort Dodge, in Kansas, soldiering, and was stationed 
 there about two years. I had occasion to see the Arkansas 
 
 river repeatedly in 1868. I saw it and crossed it quite often, up and 
 down. I crossed it just at Dodge, and below there too. There was 
 water in it most of the time then, in 1868. I went farther down from 
 Fort Dodge on a buffalo hunt and came down to Great Bend and 
 crossed the river there dry in that year without any trouble. 
 
 3432 I expect it might be eight or ten miles from Great Bend 
 where I crossed it dry. I went from Fort Dodge down to 
 
 Great Bend and there I crossed the river. I was hunting buffalo and 
 recrossed there and came back. What we called Great Bend then is 
 now Larned. There is where I crossed the river. I was as low down as 
 the mouth of the Walnut creek where it discharges into the 
 
 3433 Arkansas river, and I crossed the Walnut on that trip. I 
 don’t think I was down to the mouth then ; I crossed it here 
 
 on this side of the bend, and then I also crossed the creek. At the 
 time when I crossed it at Great Bend when it was dry there was 
 water in it at Fort Dodge. Sometimes there would be a flood com- 
 ing down and there would be plenty of water. In the fall of the 
 year there was a little water in it. There was a good stream of 
 water running when I left there. Anybody could foot across 
 
 3434 it at that time easy enough and didn’t have to swim. And 
 as I went down toward Great Bend it got less and at Great 
 
 Bend it was entirely dry. There was a pretty fair run of water 
 at Larned, about the same as at Dodge City. There was only one 
 trip I made through there that the river was dry, in 1868, and I 
 went to Larned, also to Walnut creek, hunting buffalo, in 
 
 3435 those days. I was at Holly in 1882 and sometimes there 
 was plenty of water in the river there and sometimes it was 
 
 plumb dry. At the present time I am living within five hundred 
 yards of the Arkansas river and I see it most any day I look out 
 from my door. I can see it from the house. There has been water 
 in the river nearly all the time for the last three years, and I claim 
 that for the last three years there has been more water in the 
 
 3436 river than there has been for the last eight or ten years. 
 There is more water in it now. 
 
 3437 I used to dig wells there at Holly pretty nearly every day 
 for fourteen or fifteen years. I dug wells with pipes and I 
 
 found lately there is more water in it now than there was before, in 
 the bottom. The water level of the country has become higher. 
 Well, a foot and a half or two feet. At my house where I lived I 
 used to go four and a half feet; now I can get water at three feet. 
 
THE STATE OP COLORADO ET AL. 
 
 94? 
 
 Cross-examination. 
 
 By Mr. Ashbaugh : 
 
 I live on the north side of the Arkansas river and on the east 
 side of Horse creek, and perhaps a few hundred yards from 
 
 3438 the river, and have lived there for over twenty years. I think 
 there was water in the river all the time in 1902, 1903 and 
 
 1904. There was more water in 1904 than in 1903, but 1904 is not 
 the wettest year we have had since I have lived in Colorado. In 
 about 1883 or 1884 we had about the wettest year I ever knew. 
 
 3439 In 1903 we had plenty of water here all along and all the 
 time. I never saw the river dry at Fort Dodge or Great Bend 
 
 except just the times when I crossed it on my buffalo hunt. I was 
 down there several months. I got there in October and stayed until 
 about Christmas. I was along the river there for three months in 
 the fall of 1868 and saw it dry only once and that was at Great 
 Bend. 
 
 3440 Re-direct examination. 
 
 By Mr. Hayt : 
 
 Holly is about four miles west of the Kansas-Colorado line, and 
 there was plenty of water running in the river, horse deep, yesterday, 
 and you can’t cross it very well. Just about all bogs and plenty of 
 water in it. Nobody can cross. My son can’t cross it. He tries to 
 cross it once in a while and he can’t cross it for the last eight or ten 
 days. I know that. 
 
 3441 Harry S. Crittenden, Lamar, Colorado. 
 
 Direct examination. 
 
 By Mr. Hayt: 
 
 I am thirty-seven years of age, and am a farmer and stock man 
 by occupation, and reside at Coolidge, Kansas. I have lived there 
 about twenty-three years. Coolidge is about two miles east of the 
 Kansas-Colorado line. I lived five years at Byron, just this side of 
 Holly, Colorado, prior to that. Byron is in Prowers county and it 
 was formerly known as old Granada. My farm is half a mile east 
 of the Colorado State line in Kansas, in Hamilton county. 
 
 3442 It is on the river bottom. Well, it doesn’t jut up against the 
 river bottom ; there is fourteen acres of land lying in a strip 
 
 between my farm and the river. I am farming forty or sixty acres 
 at the present time and raise alfalfa, kaffir corn and cane. I take 
 water out of the Arkansas river through the Frontier ditch, the 
 headgate of which is located about three thousand three hundred 
 feet west of the Colorado State line. There is no land in 
 Colorado irrigated from the ditch. The number of acres irri- 
 
TSfi state op Kansas V3. 
 
 94§ 
 
 gated under it I would approximate at 3,500. The ditch is 
 twelve feet wide at the headgate, and after it gets onto a 
 grade at the State line it has a six-foot fall. It is eight 
 miles in length, and the grade is one and a half feet to the 
 
 3443 mile. I presume the ditch is nine feet wide at the top, six 
 feet at the bottom, with a foot and a half slope on either side — 
 
 a foot to a foot and a half — and eighteen inches deep. I think the 
 ditch was constructed about ten or twelve years ago. At seasons we 
 have difficulty in getting a full water supply. In some seasons it 
 would be dry and the river would be dryer than at others. Such 
 seasons occurred years ago. We have experienced no difficulty in 
 the last three years in getting all the water supply we needed. 
 Prior to that time there were times when there was plenty of water 
 and at other times we conld have used the water but couldn’t get it. 
 I have lived along the river for twenty-five years at that point and 
 have had occasion to observe the flow. I have run cattle on both 
 sides of the river and have forded it every few days for at least 
 twenty years. 
 
 3444 There is more water flowing in the river in the last three 
 years than there has been for a number of years prior to that. 
 
 Taking it on an average, I would say there is as much flowing as 
 there had been in any three years in one period, or more. I have 
 seen the river dry in the earlier years. In the last three years the 
 flow is more regular. I am speaking of the flow at the State line, 
 at the intake of the Frontier ditch, and I attribute the flow there to 
 seepage from irrigated districts up the valley. There was 
 
 3445 plenty of water in the river at onr headgate in April last — 
 more than we could use. I had occasion to cross the river 
 
 down near Coolidge yesterday and the day before. I crossed it on 
 horse-back and in a buggy and found plenty of water. There was 
 a great deal of it. As I crossed the river two or three days ago the 
 water came near running in my buggy box. It came within an 
 inch or so of it. And the river at that point was two or three 
 
 3446 hundred feet wide and it struck the horses’ bellies a little 
 higher. 
 
 Cross-exami n ation . 
 
 Bv Mr. Ashbaugh : 
 
 I visit Garden City, Kansas, once every year or two. I was down 
 there in August, 1903. I think I was at Lakin in April, 1903. I 
 don’t think I was farther down than Syracuse or Kendall in 
 our county. Sj^racuse is fifteen miles from Coolidge. There 
 
 3447 was water in the river all the time during the fall of 
 1903 between Coolidge and Syracuse in places. I don’t think 
 
 it ever went dry. It might have been at lower stage in some places 
 than others, but there was no time when there was no water. I 
 couldn’t say as to whether it went dry between Coolidge and Syra- 
 
THE STATE OF COLORADO ET AL 
 
 940 
 
 cuse in the fall of 1903. I simply don’t remember of any 
 
 3448 place being dry. I have talked this over with several parties 
 in the last day, among some of my neighbors, as to the gen- 
 eral character of the flow. It is my impression that there was water 
 in all the places in that territory during the fall of 1903, but I don’t 
 go to the river every time I go to Syracuse. The city of Syracuse is 
 
 nearly a mile from the river. I couldn’t say how the water 
 
 3449 was between Coolidge and Garden City in 1903. I didn’t see 
 it at all. I couldn’t say whether the river was dry at Garden 
 
 City in 1903. It might have been dry at Syracuse in August, 1903. 
 
 Examining Complainant’s Exhibit A-45, it looks very much like 
 a river bridge. I wouldn’t know the Garden City bridge. I never 
 saw it only from a distance and wouldn’t recognize this as the 
 
 3450 Garden City bridge. I never crossed the Arkansas river at 
 Garden City, and I don’t believe I have ever been within a 
 
 quarter of a mile of the north end of the bridge there, and have 
 never been on the river down at Garden City. 
 
 At the State line where I live I think the seepage increases the 
 flow of the river. There are no ditches just above us to take all of 
 the seepage for a few miles. It is true as to our ditch that there 
 were times when we didn’t get as much water as we wanted. If there 
 was seepage coming down the river we would take it if we 
 
 3451 could get it. We take whatever we need. If there was any 
 time in August, 1903, when we could not get as much water 
 
 as we wanted, it would be about August, as that is usually a dry 
 period. Our flow gets heavier in September and heavier 
 
 3452 later on. This year it was the heaviest in October. This 
 has been an exceptional year with us anyway. We had a 
 
 lot of water when we needed it. The total flow of the river from 
 April down to the present time this year has exceeded that of any 
 other during those months. 
 
 Redirect examination. 
 
 By Mr. Hayt : 
 
 The flood spoken of occurred about the first of October, 1904, and 
 lasted several days; that is, the heaviest volume of the water, and 
 it lasted two or three weeks, until it gradually diminished. 
 
 3453 This is the flood that washed out a part of the railroad near 
 the mouth of the Purgatoire. This flood came from the 
 
 Purgatoire. I think there was as much water, with that exception, 
 in 1903, as in 1904. We depended on a dam in the river to 
 
 3454 get the water into our ditch. We have no rock dam ; it is a 
 sand dam and sometimes it washes out. The greater portion 
 
 of our ditch is in the State of Kansas. There is 3,300 feet in Colo- 
 rado and the balance of eight miles is in Kansas. We have a charter 
 from the State of Kansas for our ditch. 
 
950 
 
 THE STATE OF KANSAS VS. 
 
 Examination by Mr. Campbell: 
 
 I can’t really tell you what the carrying capacity of that ditch is. 
 I have never figured it out. I think we made an appropria- 
 
 3455 tion of the water in Colorado. Not to my knowledge did we 
 get a decreed appropriation in that State. There are no 
 
 ditches between the head of my ditch and the State line. I think I 
 began to build this ditch in 1892. There were other ditches below 
 me in Kansas taking water out of the Arkansas river at that 
 
 3456 time. I knew of there being ditches below me. I can’t tell 
 how much water we appropriated or how much we claim. 
 
 When we chartered our company which built the ditch we were 
 interested in about 1900 acres of land. We knew that there were 
 other ditches below us in the State of Kansas that were dependent 
 upon the waters of that river for irrigation purposes. I couldn’t 
 say whether they were prior in appropriation to us. We have 
 
 3457 had water when those ditches below us didn’t have any. We 
 kept our ditch pretty well in repair. 
 
 Recross-examination. 
 
 By Mr. Ashbaugh : 
 
 The name of our company is the Frontier Ditch Company, and it 
 is chartered in Kansas and in Colorado both under that name, but 
 I couldn’t say whether we have a decreed appropriation in Colorado 
 or not. All the water diverted from our ditch is applied to 
 
 3458 the lands in the State of Kansas and none in the State of 
 Colorado. 
 
 Redirect examination. 
 
 By Mr. Hayt : 
 
 I have heard this ditch called the Pioneer. The water is not 
 claimed by virtue of the charter. 
 
 3459 John J. Donohue, Lamar, Colorado. 
 
 Direct examination. 
 
 By Mr. Hayt : 
 
 I am fifty-three years of age; I reside at Coolidge, Kansas, and 
 have since 1881. I am a ranchman by occupation and I live on a 
 ranch about four miles east of Coolidge and own land on both sides 
 of the river. I live within four or five hundred yards of it. My 
 ranch is located about six and a half miles from the Kansas-Colo- 
 rado line. I raise alfalfa, kaffir corn, wheat, cane and sometimes 
 potatoes, Irish and sweet, water melons, squashes and everything 
 
THE STATE OF COLORADO ET AL. 
 
 951 
 
 else, and raise them by irrigation, as that is necessary on the 
 
 3460 north side of the river. On the south side my land is low 
 land and I don’t irrigate that, but generally in that section 
 
 of the country crops cannot be raised without irrigation. I get my 
 water supply from the Frontier Ditch Company, the Pioneer 
 some people call it, but the name is the Frontier, and I am presi- 
 dent of that company. I have been president ever siuce it was 
 built except two years — about ten years I guess — and as presi- 
 dent I generally had charge of the direction and management 
 of the ditch. The headgate is about 3,300 feet in Colorado, 
 west of the State line. All the lands irrigated under it 
 
 3461 are in Kansas. It never was the intention to irrigate any 
 lands in Colorado, in fact we were too low down. We have 
 
 to go a little over half a mile in Kansas before we can get the water 
 on top of the ground. The lands in Colorado are too high to take 
 water from this ditch. The headgate is located in Colorado. We 
 put it there so as to get the cheapest way to build it and so we could 
 miss the town of Coolidge, and this was also necessary in order to 
 get the required fall for irrigation. (Objection.) During the time 
 I have lived on the river I have had occasion to cross it fre- 
 quently, from two to twenty times a week during the last ten or 
 twelve years. I have seen it for thirty -five years every day, 
 
 3462 unless it was a stormy day, or something of that kind. 
 During the earlier years I camped on it nearly all the time 
 
 when we were going to Fort Hayes. I have seen it nearly every 
 month. I camped on the river during 1871. In that year our 
 home ranch was at old Fort Aubrey ; that is located four and a 
 half miles east of Syracuse. In the fall of 1871 the river was 
 practically dry. You could cross it with a pair of boots and not 
 get your boots wet if the boots didn’t leak. I crossed it at 
 Fort Aubrey and between there and Syracuse at difference places. 
 I lived right on the river that year and travelled up and down 
 it all the time. We generally ranged right close to Holly. We 
 very seldom came across the line. I have also observed the flow 
 carefully for the years 1901,1902 and 1904, and the flow for the last 
 three years has been very regular, that is, in the fall and spring, 
 and I have had no trouble in the last three years in getting 
 
 3463 sufficient water for the Frontier ditch, but prior to that time I 
 did. In the years 1899, 1900 and 1901 the river was so low 
 
 that we couldn’t get sufficient water for the ditch. Those were our 
 hardest years. In 1902 the water was a little better. We had 
 considerable water that year some of the time. In 1903 it was a 
 little better, and in 1904 we had plenty of water. In 1903 there 
 were some times we took nearly all the water in the river. We 
 took it all when it got real low. There were other times there was 
 more water than we could control and we would have to let it go 
 by. In the last of June, July and part of August in 1903 there 
 were times when there was a great deal of water running by. In 
 
952 
 
 THE STATE OF KANSAS VS. 
 
 1904 we bad more than we wanted — more than we could con- 
 
 3464 trol. There was a flood in the river this year. (Objection.) I 
 don’t know the exact date of the flood. I never kept any track 
 
 of it. I have had occasion to notice the water in the river within the 
 last week in the vicinity of my ranch, and it has been about 
 belly deep on a horse. I have crossed it from two to four times a 
 day. This has been the condition for the last ten days prior to this 
 (December 20th, 1904), and the river was about three hundred feet 
 wide at my place, and the average depth I think was from two and 
 a half to three feet, in the deepest part. In the sand over the stream 
 it would be about that deep. I should judge that the water would 
 average about two feet over the whole three hundred feet in 
 
 3465 width. The water runs pretty swiftly at that point. Dur- 
 ing the month of April this year there was more water in the 
 
 river than we could control in our ditch on account of having to 
 dig through this sand bar to get the water, and our headgate is a 
 little bit high. Sometimes we have to throw in sand to get it high 
 enough to raise it into the ditch, and when there is too much water 
 we can’t control it, and there was too much in April. Dur- 
 
 3466 ing the whole month of April the channel where we took 
 out our water I should judge was nearly two hundred feet 
 
 wide and a foot and a half deep in the center. The underflow ditch, 
 or as I believe they call it, the Buffalo ditch, was taking water out 
 of the river above us at this time. The Buffalo ditch I should 
 judge is seven feet wide in the bottom. I don’t know what other 
 ditches were taking out water above, if any. I think the increase 
 of water in the river during the years of 1901, 1902, 1903 and 1904 
 is caused by the underflow from the Buffalo ditch and the land that 
 is irrigated above us. I mean by the underflow the seepage water 
 from the land above our headgate ; that is, the irrigated lands north 
 and west of Holly. 
 
 Cross-examination. 
 
 By Mr. Ashbaugh : 
 
 3467 I happened to testify in this case because I was requested 
 so to do by Mr. Wiley, the gentleman sitting over there. He 
 
 lives at Holly. I saw him yesterday or the day before that at Cool- 
 idge. I was not subpoenaed in the case. During the year 1903 it 
 was hardly over a week at a time that we took all the water in the 
 river, and this occurred two or three times. I think that 
 
 3468 was about the last of May or the first of June, and again in 
 August and September in the fall. Sometimes in the fall it 
 
 is a little longer. In the fall we would take all of the water for a 
 longer time than in the spring, because it quits running above us 
 and the river falls and we don’t get the water. The amount of 
 water in the river depends on those rains that come. The 
 
 3469 reason why we have to sometimes take all of the water in the 
 fall of the year is because it quits running. It don’t run so* 
 
THE STATE OF COLORADO ET AL. 
 
 953 
 
 even. So that in August when we took it all there would be good 
 seepage below us — running water below us. The next ditch above 
 ours is the Sissom. It is about a mile above ours and it takes all of 
 the water in the river sometimes, and did so take all of the 
 
 3470 water in the river sometimes in the year 1903. Another ditch 
 above that is the Buffalo, and the next one above the Buffalo 
 
 is the Graham, I believe, but I don’t know its size. Our ditch will 
 flow water enough to irrigate 3,500 acres of land. The headgate is 
 twelve feet wide and five feet deep. I don’t remember when our 
 charter was taken out, but it was taken out after some of the 
 
 3471 Garden City ditches were built. I believe ours was built in 
 1892. We filed the charter in the same year the ditch was 
 
 taken out. Five of us built the ditch and paid for it and got a char- 
 ter in the States of Kansas and Colorado, both. I believe we got an 
 appropriation in Colorado, but not to use water in Colorado, but to 
 use it in Kansas. 
 
 3472 I was in Syracuse in 1873. The railroad was built in 
 there in 1871 and they got some of the ties floated down the 
 
 river. They broke loose in high water and everybody got them. 
 I got some of them. They came down as far as Syracuse by the 
 water in the river. I go to Syracuse four or five times a year. 
 
 3473 I don’t know that the men at Syracuse make complaint that 
 they cannot get water for their ditches. I heard them 
 
 “ kick ” about it, yes sir, because we didn’t keep the ditches clean. 
 That is the only reason I heard. That is the only reason the Alamo 
 didn’t get it. It has been out-lawed, I believe, for several years. 
 There is one below that has had water whenever they needed it. 
 We don’t take all the water; there is water rises below — seeped 
 water. But we take all of the flow of the river at certain 
 
 3474 times. There is an underflow there and I know it and testify 
 to it. But two or three miles west of Syracuse there is a 
 
 place that it never goes dry; it comes from up the river. It disap- 
 pears. It used to disappear in some places. In some places where 
 the sand in the river is higher than at other places it flows under ; 
 then when you come down to where the rock crops out it rises up 
 again and goes over, and there is always running water in 
 
 3475 these places. At one place this side of Las Animas I should 
 judge the banks may be fifteen or twenty feet higher than the 
 river, but I should think the longest place wouldn’t be over 
 
 3476 three or four hundred yards. Between Rocky Ford and the 
 State line the general slope of the country is about regular with 
 
 the slope of the river, and east of the State line for fifty miles it is 
 about the same. This continues in the valley of the river back to 
 the bluffs. In 1904 they had very heavy rains above us and west. 
 The Eden wreck was caused by a very heavy rain or cloudburst on 
 the north side of the river, and at the time the Santa Fe rail- 
 
 3477 road tracks were washed out on the south side of the river it 
 was caused by a very heavy rain. 
 
954 
 
 THE STATIC OF KANSAS VS. 
 
 Examination by Mr. Campbell : 
 
 The ditch owned by the company of which I am the president has 
 a fall or grade of about two and a half feet to the mile to Bridge 
 creek and one and a half feet to the mile from there east. There is 
 about three thousand five hundred acres under that ditch and we 
 irrigated last year 1,200 acres. In the first year we didn’t have in 
 very much. We have never irrigated the 3,500 acres, and 
 3478 have never gone higher than 1200 acres I should judge. 
 
 The home office of the Frontier Ditch Company is at 
 3479- Coolidge, Kansas. We have no office in Colorado. We never 
 had any meetings of our stockholders or directors in Colo- 
 rado. I am certain we have a charter for a corporation in that 
 State. We never had any occasion to have a meeting of the board 
 of directors there. I think we have a charter there. It cost us $25, 
 I believe. We have a meeting for the election of directors every 
 year in the State of Kansas. 
 
 Redirect examination. 
 
 By Mr. Hayt : 
 
 I don’t recollect that I ever saw this charter. I believe that we 
 applied to the governor of the State and the officers there for a de- 
 cree for an appropriation of water for the Frontier ditch. We had 
 to pay for two papers. We had to pay for two papers — one here, I 
 believe, that cost us $10, and one in Denver, $25. We took 
 
 3481 all of the water from the river about the last of May and the 
 first of June, and in August sometime in the year 1903. We 
 
 throw in a sand dam when we can get the water into the ditch and 
 open a channel through the bar. That always throws it up in front 
 of the headgate. Then we throw the sand in there and that raises 
 the water up in front of our ditch. We never can stop all of the 
 water, because it goes through the sand. It always runs below 
 
 3482 there. We never could stop it all. We could stop the top 
 flow but we never could stop the seepage flowing through. 
 
 Sometimes this seepage would commence within fifteen or twenty 
 feet and it would increase as it went down. There are two Sissom 
 ditches concerning which I testified, both small. I don’t know 
 whether they have dams at all or not. The No. 2 Sissom ditch is 
 just about a mile above our headgate and the No. 1 is about four or 
 five miles this side of Holly somewhere. It is about six miles above 
 No. 2, I think, and on the south side of the river, and our ditch is 
 on the north side. We have nothing to do with the manage- 
 
 3483 ment of the Sissom ditches. 
 
 Recross-examination. 
 
 By Mr. Ashbaugh : 
 
 My idea of this suit is that the Kansas men wanted to stop all 
 water from irrigation and let it flow by in the river, and of course it 
 
THE STATH) OF COLORADO ET AL. 
 
 955 
 
 would interfere with men that had money invested here. My land 
 wouldn’t be worth $2 an acre if the water was taken away from us 
 here. I got my idea from reading the Kansas City Journal 
 
 3484 and different papers. I read the Syracuse Journal, the Holly 
 News, and sometimes read the Pueblo Chieftain. It was ray 
 
 idea of the suit that the aim was to prevent them from taking water 
 out for irrigation in Colorado and every where else. 
 
 Redirect examination. 
 
 By Mr. Hayt : 
 
 3485 If it is one of the purposes of this suit to prevent the use of 
 water for irrigation either in Colorado or in Kansas, the peo- 
 ple of Hamilton county in which I live I don’t think would be in 
 sympathy with that object. 
 
 Recross-examination. 
 
 By Mr. Ashbaugh : 
 
 I refer to every man in Hamilton county that has any money in- 
 vested in land here. I have talked to some of the people in the east 
 part of the county and I think they felt the same as I do. 
 
 Examination by Mr. Campbell: 
 
 The development of the western part of Kansas depends 
 
 3486 on irrigation. In this western part some years we can raise 
 a crop without irrigation and some years we can’t. The 
 
 whole development in the western part of Kansas depends on get- 
 ting water to apply to lands by irrigation. 
 
 3487 Paul Rich, Lamar, Colorado. 
 
 Direct examination. 
 
 By Mr. Hayt : 
 
 I am fifty-two years of age. I am a stockman and ranchman by 
 occupation and live at Coolidge, Kansas. My ranch is located about 
 four miles east of Coolidge, in Hamilton county, and it fronts on the 
 Arkansas river for a full mile. I grow on this ranch, alfalfa, broom 
 corn, prairie hay, kaffir corn and wheat, and that is about all, and I 
 use irrigation for raising such crops, as no crops can be grown suc- 
 cessfully in this part of Kansas without irrigation, and we get our 
 irrigation from the Arkansas river, and from the Frontier 
 
 3488 ditch, the same one as described by the witnesses upon the 
 stand. At this time I am only a director of the ditch com- 
 pany, although I was president of the company, I think it was in 
 1899 and 1900. We were incorporated in Kansas and filed a copy 
 
956 
 
 THE STATE OF KANSAS VS. 
 
 of our incorporation papers in the State of Colorado. It is my un- 
 derstanding that we just filed a copy of our articles of incorporation 
 in the State of Colorado. We never attempted to appropriate any 
 water in the State of Colorado, nor have we ever had any court pro- 
 ceedings in this regard whatever for the purpose of getting any de- 
 creed appropriation in Colorado or for the purpose of obtaining a 
 right to the use of the waters of the Arkansas river in that 
 
 3489 State. 1 was connected with the company at the time the 
 ditch was constructed. Our manner of getting the water at 
 
 that time was simply by taking what water would naturally pass in 
 the course of the river at the State line. We didn’t see why there 
 would be any occasion for an appropriation. We had the last 
 ditch in Colorado and there was no chance for another ditch to mo- 
 lest us. 
 
 I first became acquainted with the Arkansas river in about 1880, 
 and was not interested at that time and paid very little attention to 
 the flow of the river for the five years from 1880 to 1885. 
 
 3490 From 1885 up to 1888 I was living at Coolidge and I had prop- 
 erty there and was interested there more or less. I crossed 
 
 the river during those years and there was water the entire year in 
 the river at Coolidge in the years 1885 and 1886. As near as I can 
 recollect, the river was dryer for four or five years a portion of the 
 time between 1888 and 1892, usually in the fall of the year. I have 
 noticed the river carefully during the last two or three years, and 
 there has been more water on an average, in the years 1902, 1903 
 and 1904 than for six or eight years previous thereto, at Coolidge. 
 I have crossed the river frequently or been upon its banks 
 
 3491 within the last thirty days, and the water flowing by Coolidge 
 would average, I think, a foot deep for probably 250 feet in 
 
 width, and I think the grade or fall of the river at this point is 
 about seven feet to the mile and the water runs quite rapidly. I 
 have usually crossed the river on the bridge. I saw the river in 
 Kansas last about Sunday a week ago, and then near Coolidge on 
 December 11, 1904, it would average about one foot deep for 
 
 3492 two hundred and fifty feet in width. 
 
 Cross-examination. 
 
 By Mr. Ashbaugh : 
 
 In 1885 and 1886 there was a flow in the river during the entire 
 year, and about 1888 or 1892 it was lower. To the best of my rec- 
 ollection it would average probably sixty days at that time when 
 there was no running water. The year 1904 has been a very wet 
 year and more water in the river than there was in 1903. I 
 
 3493 was not at Garden City during the year 1903. During some 
 parts of the year we have taken the entire surface flow of the 
 
 river. That was in the fall and just for a few days while we were 
 filling our ditch for irrigation. I happened to come here to testify 
 because I am interested in water in Kansas by being an owner in a 
 
f l'M& STATE O k COLORADO ET AL. 
 
 §§? 
 
 ditch and owning land under the ditch, and Mr. Wiley told 
 §494 me that the commission was sitting in Lamar on this date. 
 
 He told me this day before yesterday at Coolidge. This Mr, 
 Wiley is the one from Holly, sitting to your right there. He is su- 
 perintendent of the Amity Canal Company. 
 
 Examination by Mr. Campbell : 
 
 The charter of the Frontier Ditch Company states the point at 
 which the water is to be taken from the river as about 3,300 feet 
 west of the Colorado State line, and it is for that reason that we filed 
 a copy of the charter with the secretary of state of Colorado 
 3495 in order to do business in that State. I have been connected 
 with the Frontier ditch from its inception, and we first began 
 work on it in the spring of 1892 or 1893. I don’t think the charter 
 mentions anything in respect to the amount of water. It describes 
 the size of the ditch, the size of the headgate, the length of the ditch, 
 and the width. 
 
 Redirect examination. 
 
 By Mr. Hayt : 
 
 I first heard of this suit about two years ago by reading the 
 papers. I can’t tell you the exact date. I learned recently bv talking 
 with Mr. Wiley that this honorable commissioner was coming here 
 and going about the country for the purpose of taking testimony 
 in this case. I don’t think our charter mentions the number of 
 cubic feet, although I have not looked at it for a long time. 
 
 3497 James A. Baird, Lamar, Colorado. 
 
 Direct examination. 
 
 By Mr. Hayt : 
 
 I am forty-one years of age, and reside at Holly, and am engaged 
 in ranching. My ranch is located on the south side of the river 
 about two miles west and a mile south of Holly. It fronts on the 
 river, on the south side. Holly is on the north side. I live in Holly 
 and go back and forth every day to the ranch, sometimes on horse- 
 back and sometimes in a buggy, usually in a buggy. I have 
 
 3498 been passing back and forth daily between Holly and my 
 ranch for about three years. In high water we either go by 
 
 way of Coolidge or Granada and cross the bridge between Holly and 
 my ranch. It is about twelve miles from Holly to Granada bridge 
 and about eight miles from Granada to my ranch, and that neces- 
 sitates driving about twenty miles in high water times, and when I 
 cross the Arkansas river by means of the bridge at Coolidge it is 
 six miles from Holly to Coolidge and then six to nine or ten miles 
 
fflE) st ate oi* Kansas vs. 
 
 9g§ 
 
 from there to the ranch, and that makes a drive of about sixteen 
 miles. Last Friday I was obliged to go by Coolidge to get to the 
 ranch. There was so much water and ice in the river that I 
 couldn’t cross it. I crossed it on one side and it ran into my buggy 
 body and I got one of my horses down, so I didn’t try it on 
 
 3499 Friday. On Wednesday at the point I crossed it it was be- 
 tween three and four hundred feet in width and in one place 
 
 it came up to my horse’s side, nearly over the back, and ran into 
 the buggy, and I had a rather high buggy. There was considerable 
 ice in the water, but it was stationary. The whole channel was not 
 frozen over. There was an open place in it. The deepest part was 
 open and I should think that was about a hundred feet in width, 
 and the average depth for that hundred feet I should judge was 
 about three feet, and the deepest about three and a half, and I 
 should think the average depth for the entire three hundred feet in 
 width of the river was about two and a half feet. I crossed there 
 yesterday again and it came up along my horses’ sides. It came up 
 to the bottom of the buggy. It didn’t run in. That was about the 
 same amount of water as on Wednesday when I crossed it, but 
 there was a little gorge, probably, the day I crossed it before. 
 
 3500 The ice had frozen over on account of the storm and I think 
 it raised the water, but it broke loose and was running. 
 
 There was considerable water in the river during the month of 
 April last. I was across it every day in April and there was con- 
 siderable water, but I didn’t pay much attention to it. I noticed 
 the flow of water in the river during the years 1885, 1886 and 1887 
 and also in the last three years — 1902, 1903 and 1904. In 1885 the 
 river got very low. In 1886 and 1887 it had a good flow. In 1888 
 and 1889 and on up until 1892 the river was dry, almost, through 
 the summer season. And then the last three years the water has 
 increased. There is a little better flow than there was previously, 
 and it is about uniform. Between 1902, 1903 and 1904 it is 
 
 3501 about uniform and extends over the other mouths during 
 the dry period. There has been a good flow of water in all 
 
 three of these years. Where I cross it there has been a good stream 
 of water running there all of the three years. Prior to that time 
 there was not so much. 
 
 Cross-examination. 
 
 By Mr. Ashbaugh : 
 
 The flow of the river from 1892 to 1902 varied. Part of the time 
 it would be very low and at other times there would be plenty of 
 water. The river has been higher during the last week than it has 
 been for the last month. I don’t know what caused it. I 
 
 3502 was in town a week ago last Saturday, and in the evening as 
 we came back we could notice the water was rising a little, 
 
 and it has been gradually rising ever since, and it has been a good 
 deal higher. During the month of October there was plenty of 
 
Tit is si? at re of Colorado teT At. 
 
 sse 
 
 Water in it. The bead of the Graham ditch is about ten miles 
 above us, but I don’t know anything about those ditches. 
 3503 In 1885 the river was low and in 1886 and 1887 there was a 
 good flow; then from 1888 to 1902 the river was low, and 
 in 1888 it was perfectly dry, and also in 1889, 1890 and 1891 it 
 was dry. In 1891 and 1892 I was living right on the river and we 
 had to scrape the sand there to get water for our cattle, about six 
 miles above Holly. In 1893 it was low. I was not on the river 
 much in 1894. In some parts of the country 1904 has been very wet 
 since the month of April, and west of us the}' have had a good deal 
 of rain, and that makes the river high, but we haven’t had an un- 
 usual amount of rain with us. 
 
 3505 William W. Jon res, Lamar, Colorado. 
 
 Direct examination. 
 
 By Mr. Hayt : 
 
 I am sixty-eight years of age, a coal merchant by occupation, and 
 I reside in Prowers county, Colorado. I first saw the Arkansas river 
 in 1860 in the month of April, at what is now known as Leadville. 
 It was then known as California gulch. 
 
 I saw the Arkansas river in the State of Kansas in 1868 at about 
 the mouth of the Little Arkansas river where Wichita is now. At 
 that time I was in charge of a wagon train loaded with Government 
 supplies that came from Fort Harker on the Kansas Pacific, 
 
 3506 and part of it was consigned to El Reno, and the balance to Fort 
 Sill. I was master of transportation at that time for a firm by 
 
 the name of Prowers & Company, operating that wagon train. They 
 were engaged in trading and contracting for Government supplies. 
 I crossed the river at Wichita in that year three times, and I crossed it 
 again in 1869. At the point we crossed it in 1868 at Wichita, there 
 was possibly a little flowing water running in little channels along. 
 There was no place where you could call it a general current. It 
 was just a kind of seepage from one place to another. It made a 
 pretty river. Looking at it from a distance it looked to be 
 perfectly dry. There was no bridge there at that time. We just 
 simply doubled up, putting fourteen or fifteen yoke to a wagon on 
 the train and left half of the train back, and made two trips 
 
 3507 in that way in order to get the wagons across. I noticed it 
 quite carefully, and a person with an ordinary pair of boots 
 
 could have crossed it anywhere. I crossed it there several times 
 without getting my feet wet. I was on a horse or mule then, but I 
 could have crossed it, as I say, .with ordinary boots without wetting 
 my feet at all, and the condition of the river when I returned at 
 the same point was much the same. Possibly the last time I crossed 
 it there might have been a little more water, perhaps, than when 1 
 first crossed it in October, but then there was nothing that you would 
 
THE STATE OF EAtiSAg VS. 
 
 §60 
 
 call running water ; it was just simply little puddles here and there. 
 Wichita was not there at that time. This point was right at the 
 mouth or just a little below, east of where the Little Arkansas comes 
 into the Arkansas river. We went down the Little river, striking it 
 up the stream about thirty-five miles south of Fort Harker, and 
 travelled right down from there to the Big Arkansas river. 
 
 3508 We experienced no trouble in watering our stock in the Little 
 Arkansas. There appeared to be considerably more water in 
 
 it than in the main river. In the latter it was so shallow that the 
 stock ran into it and muddied it and were unsatisfied with it and 
 they chased around quite a little to get water in it. I mean by that 
 that the water was so shallow it would get muddy and the cattle 
 were unsatisfied to drink. If there had been water in any sufficient 
 quantity they would have been satisfied with it. 
 
 I was not on the river from the spring of 1869 again until the 
 spring of 1871, and then I was on the river, you might say, up to 
 1885. In 1871 I was handling the bridge timbers that have to be 
 transported ahead of the construction of the road from a few 
 
 3509 miles to ten or fifteen or twenty-five miles, some of the trains 
 ran, and then back to the material yard to reload. The time 
 
 was limited in which the Atchison, Topeka & Santa Fe had to build 
 their road to the State line in order to secure their charter, or in 
 other words their land grant, and it became necessary for them after 
 the legislature adjourned that spring to get a push on to get to the 
 Kansas-Colorado State line by the first of January, which they did. 
 They laid out a town where Coolidge is now, called Sargent, when 
 they first came in there. My work commenced down about Ellin- 
 wood. That is below Great Bend eighteen or twenty miles. And we 
 were on the river until up this side of Larned and west of there 
 a ways. There the road leaves the river and doesn’t strike it 
 again until reaching Dodge City, and from Dodge I was right fairly 
 in the river along as the road runs now. In the early part of that 
 season there seemed to be a liberal flow of water, but by the latter 
 part of August it seemed to get pretty scarce and you might 
 
 3510 say that water just simply stood in holes along until we got 
 up to where Garden City is now. And that condition con- 
 tinued until the next spring. It didn’t improve any. We didn’t 
 have any very serious difficulty in getting water for our stock. The 
 teams I was handling, we didn’t load a great many of them together, 
 and we could always water a small bunch of stock. We couldn’t 
 water a large bunch of two or three hundred head. If we had a 
 full train we couldn’t get water, but we could for a small bunch. 
 We got the water for the stock along the river. There might have 
 been a place or two that we had to excavate to accommodate the 
 stock to water. By that I mean we simply took slabs and just 
 scooped the sand out so that it would get deep enough for the 
 stock to drink. Generally we did this excavating along close to 
 
 the bank. We found more water there usually than any- 
 
 3511 where else. At other times we got the water in water 
 holes and there was some little running water. We just 
 
THE STATE OF COLORADO ET AL. 
 
 961 
 
 simply luxuriated on fish after we got up in there. They were 
 hemmed up in little holes. We could get most of them with a 
 club. There were some very fine cat fish in there, lots of them. I 
 was along the river more or less after that for a number of years, 
 and ordinarily, with the exception of the seasons of 1880 — that was 
 an extremely dry year — there was no water in lots and lots and lots 
 of places. You might have to go thirty or forty miles before you 
 would get water enough to water an animal along the river from a 
 point west of us ten or fifteen miles, perhaps, until you would get 
 water down I don’t know how far in Kansas. At least as far down as 
 I was at any time. I was handling cattle. That was my business 
 then. I quit in 1872. I quit the trading business then and engaged 
 in cattle raising and located at Granada. I have been familiar with 
 the water in the river from that time to the present. I have used the 
 river as the main watering place for my stock up to 1892, and I saw 
 it nearly every day, during the summer season at least. My 
 
 3512 judgment is that the flow has been more even in the last three 
 or four years, much more, than it was at any time prior to that 
 
 for the same number of years together, and that the quantity of 
 water was more even. Of course we had these washouts and 
 floods coming down, and in a little while the sand would be 
 blowing again, in the earlier years, and there has not been so 
 much of that in the last few years. All of the country in 
 the vicinity of Leadville and California gulch during the 
 early ’60’s — 1860 and 1861 — you might say with the exception 
 of just little openings along the river occasionally was timbered and 
 in most places it was just simply so dense that the snow that fell 
 there was conserved by the timber until away in the spring follow- 
 ing before it would melt any or get out of there, but that timber has 
 been cut off years and years ago. They have cleaned off all that 
 section of the country in and around those flats. In the vicinity of 
 Leadville, where Leadville is now, there are thousands, ves, hun- 
 dreds of thousand of acres on the head waters of that stream 
 
 3513 that everything has been cut off. Not only was this timber 
 destroyed by cutting off, but there have been fires that get 
 
 started, and on account of the cutting up of the timber for cord- 
 wood and ties and things of that kind there is left much combustible 
 matter on the ground and when the fire gets started in it all you 
 can do is just simply to get out of the way. You can’t control it. 
 
 I have seen the sand in the bed of the Arkansas river blowing 
 about many times. 
 
 Cross-examination. 
 
 By Mr. Ashbaugh: 
 
 The main destruction of that timber that I spoke of commenced 
 about the time Leadville was organized there as a mining camp, up 
 to the time I was there. We were gulch mining in California 
 
 3514 gulch in the years 1860 or 1861. I don’t think for the next 
 ten vears after that the timber was attacked much, but from 
 
 ■ 61— 7 
 
962 
 
 THE STATE OP KANSAS VS. 
 
 about 1871 or 1872, along there, they had commenced, and a good 
 deal of the timber that was fit for lumber was sawed up. I presume 
 the bulk of the timber was out of there by 1890. A good deal of the 
 forest had been destroyed by fire since then and before that time. 
 
 The times I spoke of crossing the river near Wichita were some 
 time in October, 1868, and I crossed it on my return tripin Decem- 
 ber of that year and the third time in January of the next 
 
 3515 year, crossing it at the same place each time, right below 
 the mouth of the Little Arkansas. There was quite a camp of 
 
 Osage Indians and half-breeds camped around there at that time. 
 There was more water in the Little Arkansas river than in the Big 
 river where we crossed it. The old Chisholm trail was way 
 
 3516 south and east of that. We went up on the east side of the 
 Little Arkansas. We never crossed it at all. I didn’t 
 
 see the condition of the river above the mouth of the Little 
 Arkansas at either time that we crossed it. I didn’t mean to 
 convey the idea that the water we found in the river was seepage; 
 it was just a little kind of drainage, but there wasn’t sufficient to 
 make a current. I think there was a little island in the 
 
 3517 river right at the mouth of the Little river. I think there 
 were trees on it, but I don’t know its name. The bed of the 
 
 river was just simply a bed of sand, with the exception of the low- 
 est depressions along it, where there would be a little water. There 
 wasn’t any ferry across the river at that time. If there had been it 
 would have to run on a sand boat. It runs in my head there was 
 a ferry started there in 1869. I never saw a ferry there in the fall 
 of 1869. I have not been there since. The railroad got to western 
 Kansas on Christmas day, 1871. 
 
 I never saw any ties come down the river. 
 
 3519 Yes, we luxuriated on fish from the time we struck the 
 river at Dodge. Below that there was too much water. Down 
 
 about Larned and Great Bend and along there there was quite a bit 
 of water. That was some time in the latter part of May. I couldn’t 
 tell you where the fish came from, but in all probability they came 
 up the river. At least the} r were the kind of fish that would come 
 up the river, and were cat fish principally, but there was not 
 enough water in October, November, December and January for 
 them to pass Wichita. We could have had fish down there, I sup- 
 pose, if we got onto it, but I think they would have to have sand 
 rollers under them. I quit the railroad business in 1872. The ex- 
 tremely dry year I experienced was 1880, and they didn’t 
 
 3520 have much water this side (east) of the Purgatoire ; and from 
 there on down the river it went dry nearly the whole year 
 
 round. 1885 was not much better than 1880. 1880 was the worst 
 
 year by odds that we had. I don’t remember that we expe- 
 
 3521 rienced any difficulty in finding stock water in the year 1874 
 at Granada. I think there was about the usual amount of 
 
 water flowing that year as in the ordinarily good years. That is 
 my remembrance. 
 
THE STATE OF COLORADO ET AL 
 
 963 
 
 I don’t convey the idea that the water has been even in the river 
 at any time, but it is more even than in years past. And 
 
 3522 this uniformity extends back to about 1894. The water seems 
 during the last three months to have gotten back to its 
 
 normal condition after the high waters we had in October, and there 
 have been no times during the last sixty days when the river was 
 either high or low. It has been uniform. 
 
 Redirect examination. 
 
 By Mr. Hayt : 
 
 3523 I am now speaking of the locality near Holly, say from the 
 bridge where the Atchison, Topeka & Santa Fe railroad 
 
 crosses, up to Carrollton, a space of about twelve miles. Hardly 
 
 that. 
 
 The nearest headgate above the railroad bridge over the river is 
 that of the Graham ditch. I have not been over to that ditch for 
 some little time. Just before that flood came down they were run- 
 ning water in there and they seemed to be a liberal supply. There 
 is enough water going by my place at the present time to fill any of 
 these small ditches or short ditches, to run them full, if it were ail 
 turned in. 
 
 3524 Amos Newton Parish, Lamar, Colorado. 
 
 Direct examination. 
 
 By Mr. Hayt : 
 
 I am fifty-three years of age, reside at Lamar, Colorado, and am 
 engaged in farming and stock raising. I have had my family at 
 Lamar since September 16, 1889, and am acquainted with the Ar- 
 kansas river in this vicinity and also in western Kansas. I have 
 been acquainted with the Arkansas river since 1880, May 10 or 12, 
 in this locality, and every year from 1880 until 1885 occasionally, 
 and since 1885 continually. I lived in Custer county, Colo- 
 
 3525 rado, and in 1880, 1881, 1882 and 1883. I lived there prac- 
 ticall} 7 until 1885. The drainage of Custer county is to the 
 
 Arkansas river by way of Grate creek and the drainage of Huerfano 
 county is into the Arkansas river through several tributaries coming 
 into the Huerfano and from the Huerfano into the Arkansas. From 
 1885 to the present time I have been engaged in irrigation enter- 
 prises along the Arkansas river in Colorado. I have had charge or 
 management of various ditches during these years, or some of them, 
 and 1 have had occasion to notice the flow of the water in the 
 Arkansas river during the ’80’s and also since 1890, and have 
 noticed it during the last three or four years in the vicinity 
 
 3526 of Latnar, Colorado, between Lamar and the State line. 
 Practically, there is no change in the flow of the river in 
 
964 
 
 THE STATE OF KANSAS VS. 
 
 recent years as compared with the flow of the river during earlier 
 years when I was familiar with it. Little or no change. Our 
 flood water is more even or uniform now than it used to be. I am 
 speaking of the flow now in the vicinity of Lamar. What we call 
 the Big Bend country up here northwest of Lamar, at one time that 
 whole valley was perfectly dry, tillable land. To-day there is quite 
 a stream of water flowing. Up here at Markham’s place before 
 there was any irrigation to speak of it was perfectly dry; and the 
 land clear across the bottom there was tillable. After the ditches 
 were taken up and the water run into the ditch there was seepage 
 came up that is now ditched and carried off toward the river. 
 
 3527 This is going east. I presume the Markham seepage is about 
 two and a half miles from Lamar. Sand creek is between eleven 
 
 and twelve miles from Lamar, that is, on an air line, east. The 
 seepage has broken out there. I wouldn’t attempt to tell you how 
 much there is in feet, but there is quite a seepage, anyhow so much 
 that it destroyed a good barn and house and they dug a ditch to 
 carry it off. About two miles east of there in what we call the Cot- 
 tonwood there is quite a seepage also. East of that, in the southwest 
 quarter of 21, 22-24, the seepage broke out in 1893, and it has run 
 continually since then, quite a big stream of water — quite a good 
 irrigating head. At Buffalo creek, some four or five miles east of 
 that, it is running continually now, when the stream used to be dry 
 at that season of the year until after the ditch went through there. 
 What we call Dead Man* is east of that. There is another great big 
 seepage stream coming back into the river. There may be others 
 that I haven’t mentioned, but I don’t call them to mind at present. 
 
 Cross-examination. 
 
 By Mr. Ashbaugh : 
 
 All of these gulches that I have spoken of are on the north side 
 of the river and come down from the Amity canal. No, the 
 
 3528 first one I speak of is north of the Amity, and the seepage 
 from that comes from the Great Bend country, up here under 
 
 the Fort Lyon canal. I think the eastern end of the Amity canal 
 at the present time where w T ater is used is on the west bank of Horse 
 creek, and I think the water from the Amity canal supplies some 
 water for each of these arroyos except the first one I mentioned. I 
 w T as manager of the Colorado-Kansas canal on the south side of the 
 river and was one of the men that originally built it. We began in 
 1885. The Amity ditch was begun as the New Era in 1886, also the 
 Buffalo ditch. I helped to build those three and managed them up 
 until 1897. The flow of the river along about 1887 to 1890 was just 
 about the same as we have now from along about the first of 
 
 3529 March until the middle of May or the firstof June. There was 
 no very material change in the condition of the river at that time 
 
 or now. From June on after the rains set in in the hills we always 
 expected our floods and our water for irrigation. A-d to the time that 
 
THE STATE OF COLORADO ET AI, 
 
 965 
 
 lasts, it varies according to the season. If the season is wet, rains in 
 the mountains sometimes, we have a good flow all summer. At 
 other times we have a short supply of water. As I stated before, 
 from the first to the tenth of March you couldn’t rely on getting any 
 water for irrigation. You couldn’t rely on getting a big ditch full 
 after the first to the tenth of March and fromthat along in the mid- 
 dle of May to the first of June. And from that until August and 
 September we had plenty of water. Sometimes it would run up 
 all through September. But in October and November we could 
 count on its being scarce. The ditches then that want water dur- 
 ing those months of March, April and the months of September, 
 October and November couldn’t get it any place other than the river, 
 and if there was none in the river they couldn’t get it. Dur- 
 
 3530 ing the dry times when the ditches didn’t get a ditch full 
 they would be compelled to prorate or rotate. Generally the 
 
 latter. That condition lasts down to the present time. We have 
 had a very exceptional run of water this season. I don’t think there 
 is but very little change in the condition of the river except that at 
 this time of the year and near the spring, by reason of this seepage 
 and return from these arroyos I have spoken about all along up the 
 river, it gives a more even, uniform supply of water now than it 
 did prior to 1880. Thesearroyos I spoke of flow continually. 
 
 3531 These ditches below the mouth of these arroyos that want 
 water during the months of March, April and May and dur- 
 ing the months of October, November and December would take it 
 all and do take it all. These arroyos most certainly help the supply 
 of water all along the line during the dry time of the year, even 
 below the last ditch. The ditches below those arroyos would cer- 
 tainly take that water. That is, if the arroyo came in above the 
 headgate. Certainly it would take it. That is what the ditch is 
 there for — to take the water when they can get it. And during those 
 months that I have named as the dry months in the spring and in 
 the fall when we need water those ditches whose headgates are be- 
 low those arroyos do take all the water that is supplied, ac- 
 
 3532 cording to their priorities. They certainly do take it all. It 
 certainly don’t affect the flow of the river below the lower 
 
 headgate as much as it does the river above the lower headgate. 
 But of course you take now after you get below the last headgate, 
 there is some seepage comes back from that ditch. The amount of 
 seepage that finally returns to the Arkansas river that would affect 
 the flow during the dry season down through Kansas must undoubt- 
 edly be the amount of seepage that gets back into the river east of 
 the last headgate. 
 
 Redirect examination. 
 
 By Mr. Hayt : 
 
 The seepage from the ditches that take water out down near the 
 State line passes right down into Kansas. Some of it gets back im- 
 
1)66 
 
 THE STATE OF KANSAS VS. 
 
 mediately and others follow along the trend of whatever sand 
 3533 or under-strata it might strike. Of course it is a matter of 
 theory as to this water returning to the river above certain 
 other ditches we used to have a theory here, you know, that the 
 more water we spread on the land the more return would come and 
 we have been waiting f or it, and it is only in the last few years it 
 has begun to show up. It takes it a long while, you know, to get 
 back, but finally the theory was demonstrated to be correct and the 
 water is now returning, some of it. If there should be a little water 
 running by Holly and a large amount of water is found in the river 
 about (Joolidge, Kansas, and there has been no rainfall and no storms 
 to increase the flow, I would lay that to the fact that Buffalo ditch 
 empties into the river there through Horse creek, and as there is 
 quite a drainage below Holly back into the river there would be 
 water passing by Coolidge that you couldn’t see at Holly at all. 
 
 Rec ross-ex ami nation. 
 
 By Mr. Ashbaugh : 
 
 3531 They irrigated out of the Amity canal in 1886, but it was 
 not completed at that time. The Amity canal was built and 
 water run into Horse creek in the summer of 1889. As to whether 
 the flow of the river was affected by turning the water into the Amity 
 canal depends upon how much water was in the river. If there 
 was only a little water in the river they generally turned it all in. 
 The Amity canal was undoubtedly constructed so that it could 
 take the whole flow of the river during the dry time of the year. 
 If the Amity canal wanted water and had a right to take it under 
 the law and got it, it had just that effect as to the amount of 
 
 3435 water it took out of the river. After they had put in the dam 
 • in the river at the Amity headgate when it was impossible to 
 
 get more than twenty-five or forty feet — after they had put in the 
 dam we could get sixty to eighty feet. And at the Bent ditch down 
 here I think when they would take it all out up there they would 
 get something like thirty or forty feet at their headgate, and 
 they are nine or ten miles apart. When the Bent people could 
 take all of the water out of their headgate, the X Y people 
 would have enough by reason of the rise in the river — the 
 seepage coming back — to fill their ditch, and they must be eight 
 or ten miles apart. When the Fort L} r on takes all of the- 
 flow of the river at its headgate 1 don’t know how far down the river 
 it is dry. They can take it out until there will be perhaps; 
 
 3436 eight or ten cubic feet of water left in the river that would 
 come on down to the headgate of the Jones ditch. I don’t 
 
 know exactly the distance. There is easily forty or fifty feet coming 
 out there. Then if this ditch took substantially all of it again so 
 that it would practically be dry below the headgate, then it would 
 gradually increase until another ditch would get something of a. 
 supply. Then if the Amity was doing the same thing it would be ; 
 
THE STATE OF COLORADO ET AL. 
 
 967 
 
 practically dry, so far as flowing water is concerned, below the mouth 
 of the Amity, as to the ditches taking all of the flow at any one 
 place. I couldn’t tell what proportion of the water used for irriga- 
 tion evaporates and is taken up hv plant life and what proportion 
 becomes seepage. I have given a good deal of thought to it, hut 
 couldn’t give an intelligent answer upon that question. 
 
 The Bent ditch referred to is the Lamar ditch. 
 
 3538 Harry H. McDowell, Lamar, Colorado. 
 
 Direct examination. 
 
 By Mr. Hayt : 
 
 I am thirty-one years of age, reside at Lamar, Colorado, and am 
 water commissioner of water district No. 67 at the present time. 
 The Fort Lyon canal was taking all of the water in the river during 
 a small portion of last April at its headgate. 
 
 3539 I remember the time during the month of April last when 
 I came to Mr. Wiley for the purpose of getting water that was 
 
 then running in the Buffalo canal for use in the X Y canal. The 
 river bed at that time was all short of water to a certain extent and 
 the X Y ditch didn’t have any water at all. There was some water 
 running by the Amity canal part of April. The Amity canal at 
 that time had no water. That was for the purpose of supplying the 
 Buffalo canal. I forget whether we turned the Lamar canal in in 
 the latter part of April or on the very first of May. I have got this 
 data all in my books, but they are not here. I was not expecting 
 to be called or I would have brought them with me. The 
 
 3540 water was allowed to run by the Amity to supply the Buffalo 
 on account of the priorities. The ditches mentioned were 
 
 taking all of the water during the month of April last, in fact 
 the Amity didn’t have any water in it at all. The Colorado-and- 
 Kansas was taking it. The ditches along the river in this vicinity 
 now are not taking all the water. I understand the Fort Lyon 
 canal is. I haven’t been there for some time. At the time I came 
 to borrow this water both the Amity and the X Y canals were short. 
 They had no water running in them at all and there was no water 
 in the river that could be used for that purpose. I know that was 
 in the month of April. 
 
 Cross-examination. 
 
 By Mr. Ashbaugh : 
 
 3541 It will lower the river below the headgate of a canal for it 
 to take it all, according to how much you take out. The Fort 
 
 Lyon canal can take 400 feet and the Amity can also take 400 feet. 
 If there were 400 feet in the river and either of these ditches would 
 take that amount, there would be left in the river about 68 feet of 
 
968 
 
 THE STATE OF KANSAS VS. 
 
 seepage. This seepage comes from different places — from the up- 
 lands and from under the dams. There never has been a dam con- 
 structed but that some seepage will get under and around it. We 
 have places in the river where the bottom is bed rock. They have 
 never been able to put a dam down so that the solid masonry 
 
 3542 goes to the solid rock at every place across the river, and some 
 water seeps through the sand. This is more largely true of 
 
 the dams that are not constructed of masonry. Some of the water 
 would go around the dam. I have seen times when I saw only a 
 foot and a half of water below the Amity dam. It is a good one, or 
 was a good one until the freshet this year. As little water seeped 
 through or around the Amity dam as any of them. It was consid- 
 ered the best dam on the Arkansas river when it was corn- 
 
 3543 pleted. They have had a little hard luck with it. When the 
 Fort Lyon ditch is taking all of the water in the river there is 
 
 not enough to supply the Amity if it should want its full supply at 
 that time, unless the Purgatoire was coming in: Taking the aver- 
 age, ordinary, normal flow, uninfluenced bv any local flood, and if 
 at that time the Fort Lyon took the whole flow of the river the 
 Amity would get about 65 feet of water in dry times, leaving out 
 all other ditches. That is about what it was in the month of 
 
 3544 April. This last April was a little dryer than common, and 
 the flow of the river was low all winter. In September, 
 
 October and November, 1903, the flow was small. During that time 
 the Amity ran about a hundred feet in September and gradually got 
 down to less. During the ordinary flow of the river when the Fort 
 Lyon was taking all and the Amity receiving about 65 feet, which 
 would be all, as I stated, the Lamar canal during the month of 
 April this year would get about 16 feet. If the Lamar canal then 
 got 16 feet and again took it all — I have seen 25 feet in the month 
 of May, 1903, and in the month of April, 1904, there was not to ex- 
 ceed ten feet, and this year it would be about ten feet. If 
 
 3545 the X Y took the whole flow, which was ten feet, the Buffalo 
 would get about eleven feet. I mean that between the X Y 
 
 and the Buffalo under the conditions described there would be about 
 eleven feet of seepage into the river, and below the Buffalo to the 
 State line about twenty-two feet. In this way I account for the 
 water that is flowing in the river below when the canals 
 
 3546 above are taking all of the water. I have been commissioner 
 of water district No. 67 since March 31, 1903. I think there 
 
 are 237 miles of canals in Prowers county in operation, not includ- 
 ing the Fort Lyon at all. The total number of miles would be 
 about 250. The Kisee canal up here has two priorities. I have 
 seen cards around the city here indicating that the Amity canal 
 had two decrees. I don’t know what it means. The Fort 
 
 3547 Lyon canal lias two decrees, the total of which is 761 feet. 
 Tt has not a decree for 933 feet, and if they carry 933 
 
 cubic feet they just take it when it is in the river. They don’t 
 take it unless district No. 67 is supplied. The decreed appro- 
 
THE STATE OF COLORADO ET AL. 
 
 969 
 
 priation of the Amity is 283.5 feet. It claims to carry eight 
 hundred feet when it is full, and it does carry eight hundred 
 feet when we have floods. When we have floods the Amity and 
 other canals carry more than their decreed appropriations; and this 
 occurs whenever we have a flood, which is quite a number of times 
 a year. We turn into a canal more than its decreed appro- 
 
 3548 priation becaus.e they need it for irrigation. When the con- 
 ditions are favorable and no other ditch within our district 
 
 is demanding it and there is more water flowing in the river than 
 a particular ditch has a decreed appropriation for, if they want 
 more we give it to them. That is our custom here and has been 
 for the last twelve or thirteen years. The Amity was carrying 
 more than its decreed appropriations in May of this year. For a 
 few days in May it carried 600 feet. This was for eight or ten days. 
 At that time another ditch in district No. 67 was carrying more 
 than their decreed appropriation. I think the Fort Lyon carried more 
 than its decreed appropriation also. The Fort Lyon is not in my 
 district and I have nothing to do with it nor with any of the 
 
 3549 water that flows in it, although the ditch runs through my 
 district. No other canal than the Amity in inv district car- 
 ried more than its decreed appropriation during any time of the year 
 1904. The Amity carried more than its decreed appropriation for 
 a time, not to exceed twenty-five days, in 1903. I was not water 
 commissioner in 1902, but I should say they carried some days 
 more than their decree. That practice is established for two rea- 
 sons — because we could use the water and get an opportunity to take 
 it, and no other ditch was calling for it — and therefore we just 
 turned it in. 
 
 Examination by Mr. Campbell: 
 
 3550 District No. 67 of which I am water commissioner belongs 
 to division No. 2. My duties are to see that each ditch gets 
 
 its just decree. Part of my duties are to see that the ditches during 
 the low stage of the river carry the water according to their priori- 
 ties and no more than their decreed appropriations. I report to 
 Division Engineer Chew and State Engineer Carpenter. I keep a 
 record each day of the amount of water each ditch carries and re- 
 port that to Mr. Carpenter. Mr. Chew gets the daily record. 
 
 3551 I don’t keep a record of the acreage irrigated under each 
 ditch. There is a record of the number of acres under each 
 
 and every canal. I keep a record of this for my own district and 
 report to Mr. Carpenter. I make a report of the acreage once a 
 year; that is, the number of acres that can be irrigated, not the 
 number of acres that have been irrigated. The water I speak of 
 having been borrowed was loaned. Mr. Wiley, the manager of the 
 Buffalo canal, had some water down there that was just to them and 
 we tried to get it for a few days to put it in the X Y canal. Mr. 
 Wiley didn’t let us take it and we didn’t borrow it. 
 
070 
 
 THE STATE OF KANSAS VS. 
 
 Recross-examination. 
 
 By Mr. Ashbaugh : 
 
 3552 A part of the reports I spoke of are made in duplicate, or 
 carbon copies, to Mr. Chew. I reported the amount of water 
 
 that the Amity was carrying when it was carrying during the month 
 of May, 1904, this 600 cubic feet per second of time. I made a full 
 report. I do not report that it is carrying just* the decreed amount, 
 whatever that may be, and make no report of the balance. No, I 
 report the amount in the canal, whatever it may be. 
 
 Redirect examination. 
 
 By Mr. Hayt: 
 
 3553 I send these reports to Mr. Carpenter, State engineer, and 
 they are supposed to be accurate. The Fort Lyon canal is in 
 
 district No. 17, and 1 have nothing whatever to do with that. I go 
 there ocasionally to see the amount of water passing, but I never 
 measure it. 
 
 In saying that some canals have two decrees, I mean that they 
 have got two different priorities, and that may be and usually is 
 established bv one decree of the court. The tributaries of the Ar- 
 kansas river between the intake of the Fort Lyon canal and the 
 Kansas-Colorado State line are: Horse creek, Adobe creek, Lime- 
 stone, Graveyard, Buffalo and Wild Horse creeks on the north side 
 of the river ; the Purgatoire, the Caddoa, the Rule, the Mud, 
 
 3554 Dry, Clay, Granada, Wolf and Butte creeks, the Smith, 
 Kirby and Willow Springs arroyos on the south side ; and 
 
 the Dead Man and the Big Sandy on the north side. The Big Bend 
 is not a creek ; it is not a drainage. The Purgatoire has some water 
 running in it now. I never saw it but what there was some water 
 there, is the reason I answer that question. I don’t know it of my 
 own observation at the present time, and I couldn’t tell you how 
 much was running there since the 19th day of October. I 
 
 3555 don’t know what there was running there then. The Fort 
 Lyon and Amity canals both divert water from the natural 
 
 channel of the Arkansas river and are about sixty or sixty-five 
 miles apart, approximately, by the river; that is, the Fort 
 
 3556 Lyon headgate is about that distance above the Amity. The 
 capacity of the Fort Lyon canal is about 1,500 cubic feet per 
 
 second of time. 
 
 3557 Mars ena J. McMillin, Lamar, Colorado. 
 
 Direct examination. 
 
 By Mr. Hayt : 
 
 I am forty-four years of age and reside near Carrollton in Prowers 
 county and am engaged in farming and stock raising. I have been 
 acquainted with the Arkansas river in eastern Colorado and western 
 
THE STATIC OF COLORADO ET AL. 
 
 971 
 
 Kansas since the spring of 1878. I was employed upon the range 
 here during the period of years from 1879 to 1886, and during a 
 portion of the year 1883 I was on the Arkansas river from 
 
 3558 Lakin to the Kansas-Colorado line. I think it was the month 
 of August. During this time between the points mentioned 
 
 there was practically no running water in the Arkansas river, so 
 little water that we had difficulty in watering the herd of cattle we 
 were handling. We had to water them in the river by giving them 
 ample time and letting them go off quite a distance back and forth 
 along the river to find the water. The channel of the river in late 
 years as compared with the earlier ones is very much wider. 
 
 I have noticed the flow of the return or seepage waters to the 
 river. On the north side of the river there is an arroyo almost due 
 north of here, a little east. I believe it goes by the name of 
 
 3559 the Graham arroyo. That was formerly dry and has now 
 running water. The same statement applies to a place be- 
 tween here and Sand creek, I don’t know the name, ending with a 
 little small arroyo. The same applies to Sand creek below the 
 Amity canal and a portion of the land east of Sand creek and the 
 Cottonwood arroyo where there is a strong seepage, so much so that 
 some buildings erected there in an early day when the land was dry 
 have caved in and fallen down. The foundation gave way. This was 
 caused by the seepage. There is the Cottonwood arroyo, which flows 
 a continuous stream now, and several other arroyos between that and 
 Buffalo creek flow continuous streams. So does the Buffalo ; so does 
 the Dead Man. There are times in some of these arroyos that the 
 flow of seepage diminishes. Sometimes it practically stops, though 
 not often. On the south side of the river Clay creek, below 
 the Colorado-and-Kansas, flows continuously into the river now. 
 Formerly it was perfectly dry. I notice but very little difference in 
 the variation of the flow of Clay creek during different seasons of 
 
 the year. I notice it more than the others because I cross it 
 
 3560 every day going and coming from Lamar. I should judge 
 Clay creek is flowing from four to six feet of water per second 
 
 of time. Take it on Wolf creek where there is no canal, there is 
 no seepage — there is no flow. On Caddoa, Mud and Rule creeks be- 
 tween here and the Purgatoire on the south side of the river there 
 is practically the same flow there was in the early days. I haven’t 
 been up on the north side of the river for so long I wouldn’t like 
 to say anything about it, west of Lamar. There is some water flow- 
 ing in the Biggs creek, east of the Cottonwood, and it was a dry 
 creek in former years. All of these arroyos I have mentioned were 
 formerly as dry as any spot you could find on the prairie. 
 
 Cross-examination. 
 
 By Mr. Ash baugh : 
 
 3561 There are ditches below every one of the ditches or gulches 
 I have mentioned in the State of Colorado, and these ditches 
 
972 
 
 THE STATE OF KANSAS VS. 
 
 have sufficient capacity to take all of the seepage I have referred to 
 if there was no water in the river. 
 
 3562 W. J. Johnson, Lamar, Colorado. 
 
 Direct examination. 
 
 By Mr. Hayt : 
 
 I am forty-eight years of age, a merchant, and live at Lamar. I 
 have lived in Colorado some seventeen years, and have been en- 
 gaged in the mercantile business here. I handle dry goods, cloth- 
 ing, etc. I lived at Wichita in the fall of 1878 and until July, 1881. 
 I saw the river after July, 1881, up to 1885 in the State of Kansas, 
 from Wichita to Nickerson. I lived at Nickerson during part of 
 the time I was in Kansas. While I was in Wichita I was 
 
 3563 engaged in the grocery business. I was working in a grocery 
 store and delivered sroods by a supply wagon. I drove it 
 
 some of the time, and in doing so I frequently crossed the Arkansas 
 river at Wichita — every da}^ almost. I crossed the Arkansas river 
 in 1879 at Wichita when it was practically dry. That was during 
 the summer and fall season. And that condition continued for a 
 number of weeks or months, I should say for a couple or three months 
 perhaps, at that time. That was below the mouth of the Little Ar- 
 kansas river. What water was there came from the Little Arkansas. 
 The Little Arkansas is the larger stream of the two in the sum- 
 
 3564 iner time. I saw the river frequently from 1879 to 1885. I 
 crossed it at Wichita and Hutchinson and Nickerson, and the 
 
 Arkansas in my experience during those years was generally dry or 
 practically so during the summer season and fall. I don’t know about 
 the last year. I remember once in the fall you couldn’t cross the 
 river on account of the sand. It would put your eyes out. 
 
 3565 There was no water running in the river at that time. I 
 crossed the river a few times in 1886 but don’t remember the 
 
 circumstances. 
 
 Cross-examination. 
 
 By Mr. Ashbaugh : 
 
 I lived at Kingman, as well as at Wichita and Nickerson. I 
 don’t remember that I ever saw the Ninnescah dry at Kingman. I 
 never remember seeing the Little river dry. There was always 
 water in the Little river, more in the larger pools at least. 
 
 3566 The Douglas Ave. bridge was a wooden bridge when I used 
 to cross it. 
 
 Examining Complainant’s Exhibit A-l I couldn’t say that I rec- 
 ognize that. I would say that the water as shown in that picture 
 was high for the Arkansas river. I can’t remember anything about 
 whether I could see the braces that support the piles at the lower 
 end and just above the surface of the water. I would hardly say 
 
THE STATE OF COLORADO ET AL. 
 
 973 
 
 that you could see the braces at the lower end of the piles 
 
 3567 under the bridge at high water. I wouldn’t call that high 
 water as shown there, and still it is higher, a whole lot, from 
 
 the general flow of the Arkansas, I would think from that picture. 
 
 Examining Complainant’s Exhibit A-2, I don’t recognize it. It 
 was quite a while ago since I had any experience with the river 
 when it was high. 
 
 Examining Complainant’s Exhibit A-3, I don’t remember that; 
 but in Exhibits A-2 and A-3, there seems to be a sand bar there 
 very plainly, and a stream on each side. I would call it low 
 water. 
 
 3568 Examining Complainant’s Exhibit A-41, I should say 
 that that was taken since my time. I should say that the 
 
 water was low. 
 
 Exhibit A-l shows the water below the stone abutments, and Ex- 
 hibits A-2 and A-3 show the water above the lower course of stone 
 in the abutments. 
 
 After looking at Exhibits A-2 and A-3, I would say that the 
 water was low when that was taken, although it looks to me as if 
 there was a t current coming down on each side of the river 
 
 3569 there, which it sometimes does. I have seen it when there 
 was no perceptible current at that point. 
 
 3570 Charles Bobbenreith, Lamar, Colorado. 
 
 Direct examination. 
 
 By Mr. Dawson : 
 
 I am and have been living at Caddoa, Bent county, Colorado, 
 since 1871, and I am a farmer and a wheelwright by trade. I saw 
 the Arkansas river in Kansas first at about the middle of May, 
 1867. I was out with General Hancock’s expedition at that time 
 when we struck the river at Great Bend. At some places where we 
 camped upon it we would strike water and in some places we 
 would not. In some places we had to dig down in the sand 
 for water. We kept along up the river from where we struck 
 
 3571 it as far as Fort Dodge. There were places along the way 
 where there was no running water. There were pools of 
 
 water here and there. Where we didn’t find the pools we had to 
 dig down for water for our stock. We were on the trip about six 
 weeks. I saw the river again in Kansas in 1868. When I left 
 Fort Harker I struck the Arkansas river at Larned and came right 
 up the river by wagon. The water was very low. In some 
 
 3572 places there was no water at all. I came out with a Govern- 
 ment outfit, and had my own conveyance. There was 
 
 no running water at all in some places. I think we struck a 
 constantly flowing stream first probably forty or fifty miles east of 
 old Fort Lyon and we followed the river up from there as far 
 
974 
 
 THE STATE OF KANSAS VS. 
 
 as Pueblo and there was a flowing stream all the way up. I should 
 judge there was less water at Pueblo than there was at Dodge. 
 That is, at the bridge at Pueblo. There was no bridge there then ; 
 we just crossed on a log, it was so narrow. There was no running 
 water at Dodge where we struck the river — and I mean there was 
 more water, certainly, than at Dodge. 
 
 Cross-exa m i n a tion . 
 
 By Mr. Ashbaugh : 
 
 3573 The river at Pueblo was about thirty-five or forty feet wide, 
 and taking it through at that time I suppose it was probably 
 
 a foot deep in the center. There was no place between Pueblo and 
 Dodge where there was any more water than at Pueblo. We were 
 on the river in 1868 from May to July. We didn’t experience any 
 high water on that trip. It must have been an extraordinarily dry 
 season. There was no snow in the mountains, the farmers said. The 
 snow in the mountains affects the flow of the river the following 
 summer to some extent. I believe in September of 1868 we had a 
 little high water from rain, but none from the melting of 
 
 3574 snows. I think there was no more water in the river in 1868 
 than there was in 1867. I never saw the Arkansas river in 
 
 Kansas when it had any water in it. These are the only two years 
 I ever saw the river in Kansas. 
 
 3575 A. E. Bent, Lamar, Colorado. 
 
 Direct examination. 
 
 By Mr. Dawson : 
 
 I reside at Lamar, and have lived in this locality eighteen years. 
 During the past sixteen years I have been engaged in farming and 
 irrigation. I am manager of the Lamar canal and am interested in 
 lands in this locality as well. I have handled lands other than my 
 own, and my business has been such as to induce me to observe the 
 general progress of the country in this locality. I am forty-two 
 years of age, and am the auditor elect of the State of Colorado. 
 
 3576 I should say there is about 125,000 acres of land in Prowers 
 county under irrigation, and I should say there is sixty to 
 
 seventy-five thousand acres in addition under the ditch that has not 
 yet been reclaimed. I should say that the average value of this 
 land per acre would be from $60 to $75. Some land in some tracts 
 would run as high as $250 an acre. I have been engaged in the 
 real estate business and have handled irrigated lands and farming 
 lands in Prowers county. The crops generally are alfalfa, wheat, 
 oats and in fact all kinds of grains are raised in this latitude, 
 
 3577 also sugar beets and cantaloupes. The lands which cannot 
 be irrigated are worth in this locality about $1 to $2 an acre, 
 
THE ST At 12 OF COLORADO FT AL. 
 
 975 
 
 and if the irrigated lands were deprived of water for irrigation they 
 would be reduced to the level of the lauds now above irrigation 
 and would be worth the same amount per acre. Possibly the first 
 bottom land would be worth as high as $3 to $5 an acre ; but no 
 crops can be grown successfully in Prowers county without irriga- 
 tion. Lamar has about 1,600 population, and it is supported by 
 the irrigation development of this country. It is what might be 
 called essentially an agricultural town. If the lands within 
 
 3578 Prowers county were deprived of water for irrigation there 
 would be nothing to sustain the town. We have in Lamar a 
 
 modern flouring mill of 500 barrels daily capacity, and this is in 
 operation day and night the greater portion of the year. There are 
 sugar beets grown here, and plans are on foot for the development of 
 the sugar beet industry. There has been this year (1904) about 
 5000 acres of beets grown in this county. The sugar beets grown 
 here are now treated at the Rocky Ford factory of the American 
 Beet Sugar Company, but there is a factory building here now for 
 their future treatment. I have been told by the men in charge of 
 the construction of this factory that its capacity will be from 450 to 
 500 tons daily. I have been interested in land lying imme- 
 
 3579 diately along the river in Prowers county since I have been 
 here and have had occasion to observe the river during that 
 
 period from year to year, and also have observed the results as to 
 seepage or return waters from the irrigation of the uplands lying 
 along the stream, and find that result is to increase the flow of water 
 in the river during the dry periods or the low water periods and that 
 it equalizes the supply of water. Some of this seepage water 
 appears on the surface where it can be seen by anyone going 
 along. The total volume of water during the last few years seems 
 to have been greater than it was in former years for quite a period. 
 I think it is caused by the increased rainfall and snow dur- 
 
 3580 ing this period. The fall and early spring flow is much 
 greater now than it was before irrigation commenced and ap- 
 pears to be increasing each year quite rapidly. At the time the 
 river is running the most water the ditches are also taking the most 
 water. And it takes that water when spread upon the ground some 
 considerable time to return to the stream, the time depending upon 
 the distance from the stream where it is applied, and the character 
 of the soil and sub-soil. All of the lands irrigated from the river 
 within this county drain back into the Arkansas river again. The 
 seepage or return water is increasing year after year consider- 
 ably. 
 
 3581 The valuation of property in this county for taxes I should 
 approximately give at between two and three millions of dol- 
 lars, and it is assessed at from one-third to one-fourth of its true 
 value. 
 
976 
 
 THE STATE OF KANSAS VS. 
 
 Cross-exa ra i n ati on . 
 
 By Mr. Ashbaugh : 
 
 The sixty or seventy-five thousand acres under ditch in this 
 county that are not now being irrigated are not irrigated because it 
 is not settled up and the water is not being used on it. There has 
 been a shortage of water in this county for irrigation even 
 
 3582 for the 125,000 acres under irrigation, and that condition 
 would continue if we increased the amount to 200,000 acres. 
 
 Our acreage of beets should be increased some to supply our local 
 factory when completed. This could be done by putting land into 
 beets that is now being used for other purposes, and I think 
 
 3583 the beets would be more profitable. I don’t expect the num- 
 ber of irrigated acres in this county to run down because of 
 
 the coming of this factory. Increasing the acreage in sugar beets 
 tends to increase the intensity of farming. For instance, the acre- 
 age necessary for this factory to run, in a normal period, would be, 
 in the extreme, eight or ten thousand, acres. The coming of the 
 factory will increase the farming effect in the community and will 
 adjust itself to the crops grown and will not decrease the 
 
 3584 amount of water that we will use for irrigation, and I think 
 it would necessarily increase it, because there are more people 
 
 to use the water, and we expect the duty of water to increase at least 
 fifty per cent, within a reasonable time. This will also cause a 
 greater use of the water than we have made in the past, and par- 
 ticularly in the storage of the flood waters, in fact that is the effect 
 that would naturally follow the best industry — the storage of flood 
 waters — and ought to for all interests. 
 
 3585 I couldn’t answer the question as to whether any returns 
 waters come into the river east of the last ditch on the east- 
 ern side of this county, because the last ditch is within a few thou- 
 sand feet of the State line. There were always times every year 
 when the ditches in this county didn’t have as much water as they 
 needed, and at those times there is quite a struggle on the part of 
 the later ditches to get the amount of water necessary for their 
 needs, and sometimes some of the ditches use more than their de- 
 creed appropriation. There are some irregularities creep into the 
 management of ditches, and this is one of them, and I have known 
 
 of cases where it applied to more than one ditch — when a 
 
 3586 ditch carried more water than its decreed appropriation. 
 The Amity ditch carries more than its decreed appropriation 
 
 at times. It has done it more than once. During the flood period 
 in the river when the river is full of water the Amity frequently 
 carries more than its decreed appropriation, and at those times they 
 take their capacity, I presume. That is true in this particular case. 
 
 3587 Examination by Mr. Campbell : 
 
 Yes, there are reservoir sites near Lamar on the Arkansas river 
 that could be utilized for storing or impounding its flood waters. I 
 
THE STATE OF COLORADO ET AL. 
 
 97? 
 
 have made some study of the question as to the capacity of such 
 reservoirs if they were properly built and the amount of water they 
 would hold and the amount of land they would irrigate. The 
 reservoir system referred to is owned by the Arkansas Valley Sugar 
 Beet and Irrigated Land Company. It has a total available capac- 
 ity as now constructed of 192,000 acre-feet. The entire system has 
 once been filled, I believe. There are other reservoir sites in this 
 valley that could be utilized for the purpose of storing flood waters. 
 Some years the flow of the water would be limited and not enough 
 to fill those already built and others in addition that are 
 
 3588 contemplated. I don’t think that the reservoirs already 
 built have been filled to their entire capacity. One cause of 
 
 that is that the inlet to that system is entirely too small to fill them 
 at the time the flood waters pass the intake. It is not because there 
 is not sufficient flood waters coming down the river. 
 
 Redirect examination. 
 
 By Mr. Dawson : 
 
 3589 It has never been found practicable to use the flood waters 
 for any reservoir system in this State from the Purgatoire 
 
 because it is below where it is practicable or possible to take an out- 
 let from the river into any natural reservoir that is now known, 
 and it is a stream in which there is a great deal of water, and 
 especially flood waters. There are records, I believe, of large vol- 
 umes of water that come out of the Purgatoire every season that 
 are not available for Colorado at all but furnish water for a great 
 many acres of land. 
 
 Testimony for Defendant The Graham Ditch Company. 
 
 3590 G. R. Hillyer, Lamar, Colorado. 
 
 Direct examination. 
 
 By Mr. Goodale : 
 
 I have resided in Lamar for about six years last past, and I know 
 the Graham ditch and the Graham Ditch Company, and knew James 
 Graham during his lifetime. He died during the month of March, 
 1899. I am the administrator of his estate under the will. The 
 Graham Ditch Company is the owner of the Graham ditch, 
 
 3591 and the estate of James Graham, deceased, is the owner of 
 the stock of that company. It is organized under the laws 
 
 of Colorado. The lands irrigated under that ditch are owned by the 
 estate of James Graham. Still, some of them are owned by the 
 State of Colorado and held by the estate underlease. I think there 
 62—7 
 
m 
 
 'THE STAtE 05* KANSAS 
 
 are about 2,680 acres of deeded laud belonging to this estate 
 
 3592 under that ditch. These deeded lands inc-ude the southwest 
 quarter of the southwest quarter of section 27 ; the south half 
 
 of the southwest quarter of section 28; the southeast quarter of the 
 southeast quarter and the north half of the south half of section 29 ; 
 the northeast quarter of the southeast quarter of section 30 ; the 
 east half of the northeast quarter of section 32 ; all of sections 33, 
 34 and 35 and the south half of section 36 ; township 22 south, range 
 44 west of the 6th principal meridian. The lands leased by this 
 estate from Colorado are the southwest quarter of the southeast 
 quarter ; and the south half of the southwest quarter of section 29 ; 
 the south half of the south half of section 30; the north half of the 
 north half of section 31 ; and the north half of the northwest quarter 
 and the northwest quarter of the northeast quarter of section 32 ; 
 township 22 south, range 44 west. All these lands border upon the 
 Arkansas river and some of them extend across the river and 
 
 3593 are bottom lands. There are something over 400 acres under 
 cultivation in alfalfa, and the balance of the land is used for 
 
 wild hay lands and pasture. Practically all of it is watered from 
 this ditch. 1 may add that there is one quarter section of this land 
 that I have described that lies south of the Graham ditch 
 
 3594 and is not watered by it. That is in another township. This 
 estate is used to raise hay for the feeding of the cattle which 
 
 belong to the estate. Any kind of crops that are grown in this 
 country, such as alfalfa, wild hay, wheat or any kind of small 
 grain, sugar beets, etc., can be raised upon this land. They don’t 
 grow all those crops on there now but they could be grown there, 
 but none of these could be grown without irrigation. The Graham 
 ditch has its headgate on the south half of the southeast quarter 
 of sectiou 25, township 22 south, range 45 west of the 6th principal 
 meridian, and it follows from that point a generally southeasterly 
 course to a point about the northeast corner of the southeast 
 
 3595 quarter of section 32, township 22 south, range 44 west; 
 thence it runs south to a point immediately north of the 
 
 township line ; thence east, following a line immediately north of 
 the township line to a point immediately northwest of the southeast 
 corner of township 22, range 44 west; from which point it runs 
 north to the Arkansas river, and it is practically built entirely upon 
 the lands owned by this estate. The waste water from the ditch 
 flows back into the Arkansas river. The depth of this canal is three 
 feet. The width on the top is eleven feet and on the bottom six 
 feet, and it has a grade of 4.8 feet to the mile, with a carrying 
 capacity of 61 cubic feet of water per second of time. It has a de- 
 cree for 61 cubic feet of water under the adjudication in district 
 No. 67. 
 
 The paper marked “ Defendant Graham Ditch Company’s Ex- 
 hibit 1 ” shows the Graham ditch, the deeded lands and the leased 
 lands belonging to the estate of James Graham, deceased, that are 
 
THF STATIC OF COLORADO Ft AL 
 
 97S 
 
 watered by the Graham ditch, and the deeded lauds are 
 3596 marked on the plat in blue and the leased lands are marked 
 in red. 
 
 (Defendant Graham Ditch Company’s Exhibit 1 offered in evi- 
 dence.) 
 
 Cross-examination. 
 
 By Mr. Ashbaugh : 
 
 All crops raised on these lands are raised by irrigation and no 
 crops could be raised without it. These lands were arid lands before 
 they were reclaimed by the Graham Ditch Company. 
 
 Defendant Colorado’s Testimony Continued. 
 
 Denver, Colorado, January 19-23, 1905. 
 
 3597 Henry B. Sager, Denver, Colorado. 
 
 Direct examination. 
 
 By Mr. Hayt : 
 
 I am fifty-four years of age; am a ranchman and stock breeder, 
 and live at Laveta, Huerfano county, Colorado. I have lived in 
 Huerfano county thirty-three years, in the vicinity of my present 
 home at Laveta, not more than four miles from where I am 
 
 3598 at present located. The town of Laveta is located on the 
 Cucharas river, and about eight miles from what we call the 
 
 spur from the main range of the Bocky mountains are the Spanish 
 peaks, which is a little closer than the main Sangre de Christo range. 
 I have lived on my present farm twenty -eight years. 
 
 The Cucharas river is a tributary of the Huerfano aud the Huer- 
 fano of the Arkansas. At the junction is is called the Huerfano 
 river, from there down. I should think the Cucharas river dis- 
 charges into the Huerfano about thirty-five miles below here, and 
 the Huerfano empties into the Arkansas river, I suppose, about 
 twenty miles below Pueblo. 
 
 3599 My business as stock raiser and farmer has taken me over 
 the drainage area of the head waters of the Cucharas river 
 
 very frequently ever since about 1876 and 1877, up to the present 
 time. I have a pasture that is on the source of those streams that I 
 am continually at more or less all summer during the last twenty- 
 five or thirty years. On what we call the water shed of the moun- 
 tains is where I have my pasture. The pasture is located above the 
 irrigation ditches from the Cucharas river. In the winter months I 
 am there very frequently up until the holidays, and from that 
 and after, I should say, from the first of April on. My busi- 
 
 3600 ness as stock grower takes me sometimes, but not so fre- 
 quently, to the head waters of the Huerfano, and I am familiar 
 
m 
 
 fthE STATE OP kA^SAS VS. 
 
 with the country below the mountain range between the Huerfaii.0 
 river and the Cucharas river. As a stock raiser I have had occasion 
 to notice the precipitation of rain and snow upon those mountains 
 at the head waters of the two streams mentioned. The amount of 
 precipitation, more particularly of snow, during the last four or five 
 years, since 1900, as compared with the earlier years during which 
 I have been familiar with that country, according to my judgment, 
 has been fifty per cent. less than it was during the ’70’s and ’80’s, 
 and since say 1887 it has been gradually depreciating, the 
 
 3601 precipitation of snow especially, and I should judge that the 
 precipitation since 1900 is forty per cent, less than between 
 
 1890 and 1900, comparatively. I have also noticed lakes that were 
 formerly filled with water that are now dry. The first is on the 
 summit of the Sangre de Christo range, about two and a half miles 
 south of where the present Denver and Rio Grande railroad crosses 
 the main summit. That constitutes, I should say, an area of about 
 six acres that was usually covered to the extent of four to six 
 acres continually the year round ; but the last four years to my per- 
 sonal knowledge, it being near my pastures, there isn’t any water in 
 it except where a flood or rain comes in the summer. That perhaps 
 is gone in two days, and up to 1887 I never did know it to be dry\ 
 It would perhaps stand three and a half feet in the deepest in water. 
 This lake was filled by the drainage of a large park, and it had no 
 outlet at all. 
 
 There is another lake about two miles south of this one I have 
 mentioned that does drain into the Cucharas river. I suppose the 
 area w T ould be about two-thirds of the first one, and it always 
 
 3602 contained water up until four years ago, and had an outlet 
 running out of it to what is called Middle creek, and from 
 
 that to the Cucharas river, and for the last three years it has been 
 dry. 
 
 Again, right along this chain or range extending south for, we 
 will say, five or six miles, there are various other lakes in the same 
 condition now. I will say three or four others that I have personal 
 knowledge of, right in the mountains near the head waters of the 
 Cucharas. The creek I live on lies a little south of Middle creek, 
 that doesn’t hardly run out of the mountains any more. In the 
 early years it had plenty of water from its source to where it emptied 
 into Middle creek, about a mile from Laveta, and it doesn’t run any 
 more by my ranch except a little, perhaps, in the spring, and 
 
 3603 it hasn’t for four years. That leaves about four miles of a 
 dry channel where formerly the stream ran. During the 
 
 summer months in the earlier years according to my judgment there 
 would be about four or four and a half cubic feet of water in this 
 stream, plenty for stock and other purposes, and for irrigation too. 
 I had ditches from it in the earlier days. This is Indian creek that 
 we are talking about now. On the west of the Cucharas river we 
 might drop back north yet to where we began this Middle creek 
 and call to memory another stream that is called the South Abeyta, 
 
THE STATE OF COLORADO ET AL. 
 
 981 
 
 which is a stream about as large as the two first mentioned, 
 
 3604 and is about the same length of source from the main range. 
 It likewise has been dry most of the year, although I expect 
 
 it has furnished perhaps a little more water than the others, but it 
 never runs any water now. It hasn’t run for say four years, except 
 a little freshet in the spring. It empties into the Middle creek there 
 by my ranch. Prior to 1900 there was plenty of water in this stream 
 for all necessities. 
 
 There is another stream ; we will say it comes in on the east 
 between the two Spanish peaks on the east side of the Cucharas, a 
 tributary about as large as those mentioned. It is called the Waha- 
 toya. I would say that it has depreciated in its facilities for sup- 
 plying water just about the same as those others mentioned. 
 
 3605 It is about ten miles long, and there was irrigation from that 
 stream during the earlier years. The Wahatoya creek must 
 
 have supplied water for eight or ten quarter sections of land at least, 
 and maybe twelve, that I could call to memory, and there were 
 families living upon those quarter sections and cultivating the land 
 in those earlier years, and since 1900 those lands have been very 
 short; they haven’t producod fifty per cent, of what they usually 
 did. I might mention four or five of these quarter sections on the 
 head or source of this stream that got a little water ; and from that 
 down the others, for the last four or five years, haven’t had hardly 
 any water at all, being dry. There is another one east of that yet, 
 I would say eight miles, which empties into the Cucharas still 
 farther down. It is named Bear creek. My experience has been, 
 prior to 1900, — there are two or three large ranches that I know of 
 that produced large crops of hay and grain, but since that time their 
 ranches or land has been only for pasture, comparatively. 
 
 3606 On account of the shortage of water they couldn’t produce 
 any crops. During the time they were producing crops they 
 
 were irrigating from this Bear Creek. I never had occasion to travel 
 up and down that creek prior to 1900 that I remember of, but there 
 was plenty of water in it for all uses, and since 1900 most of it has 
 been dry. 
 
 We could go on about six or eight miles farther east and we will 
 strike what is called the Santa Clara, and as far as my personal 
 knowledge goes at present, and not being so frequently on that 
 stream, I couldn’t say as accurately as with reference to the others, 
 but I know it has also been in about the same condition, and it usu- 
 ally was a good deal larger stream than any of these others men- 
 tioned. It supported more irrigation in the former years. 
 
 All of these streams I have mentioned are tributaries of the 
 Cucharas river. 
 
 3607 When the stream began to dry up I had my stock yards 
 where the} 7 could always use water out of the stream during 
 
 the winter and summer. We always had plenty of water. Finally I 
 had to resort to digging for water in a well. At first I dug a well in my 
 yard about twenty feet deep for domestic use and drove my stock to 
 
932 
 
 THE STATIC OF KANSAS VS. 
 
 another stream, and I continued using water out of that well for do- 
 mestic use up to 1899. In 1899 this well went dry also. I had used 
 it about eighteen to twenty years prior to that time, and it always 
 furnished sufficient water. After going dry in 1899 the water didn’t 
 come back any more. It was not filled or anything for perhaps 
 over a year, and I went to work and had another well dug about 
 eight hundred feet from this well and I dug it about eight feet 
 square so that I could get water enough for domestic use and 
 
 3608 also for the farm animals, and I dug that within a few inches 
 of twenty-six feet and found water, and it has remained 
 
 plenty ever since. I have a gasoline engine for motive power to get 
 water from that well, and I flow water with a pump into a stone 
 cistern for my domestic use in the house. I have a gravity line 
 system that furnishes water directly to the house. I have large 
 wooden tanks right by the well that I pump full with this engine 
 for the cattle, and I have been compelled for the last four years to 
 use this for those purposes and for the little garden we have. 
 
 I was on the Arkansas river in the western part of Kansas in Sep- 
 tember, 1873, about the middle, I think. I was returning at that 
 time to Missouri and I had to go to Pueblo and go from there 
 
 3609 to the nearest railroad, which then was Granada, Colorado. 
 From Pueblo to Fort Lyon there was at that time hardly any 
 
 settlement. I went bv team and wagon. There was no staging at 
 that time on that road. I travelled continually upon the Arkansas 
 river to Fort Lyon and from Fort Lyon to Granada, which was the 
 terminus of the Atchison, Topeka and Santa Fe road. I rode in a 
 stage for a distance of fifty or sixty miles right down the river. 
 There was at Pueblo at that time what I would call a reasonably 
 good supply of water for a river of its size, but when I came to Fort 
 Lyon I wouldn’t think there was half as much water, apparently as 
 there was at Pueblo, but it was wider out. The banks were lower 
 and it appeared to spread wider and wider. There was a little 
 channel here and a little one there in places. I didn’t par- 
 
 3610 ticularly notice it where I struck the railroad, only going 
 down on the stage I noticed that there was less water the 
 
 farther down we went. After leaving Granada I was continually 
 looking out on both sides of the train, and I distinctly remember 
 somewhere between there and Dodge City, where we were running 
 immediately parallel with the river, that the river was dry. There 
 was just a wide sand bed across it and the river bed was sandy and 
 dry except in a few instances where there would be a pool, say as 
 long as this room, just standing still. Quite sufficient, it looked, to 
 water some stock. It wouldn’t be wide, but long. And then there 
 would be perhaps half a mile, maybe only a quarter of a mile or 
 something like that, we would notice another one. It might be as 
 large or only half as large. And so on right down until we left the 
 river. There was no running water between these pools, any more 
 than there is on this floor. 
 
THE STATE OF COLORADO ET AL. 
 
 983 
 
 3611 Cross-examination. 
 
 By Mr. Ashbaugh : 
 
 My well went dry in 1899. Then I dug another one in 1901, and 
 it went dr}^ and it is dry to-day. I noticed that some of these 
 streams began to get lower about 1900, and I attribute it more than 
 anything else to less snow fall during these years in the winter time. 
 I know that because it used to be so that I couldn’t get over 
 
 3612 the mountains, even on horseback, and in these recent years 
 there was nothing to prevent my going. It is mv judgment 
 
 that during the last four years there is less snow fall than during 
 that time. They used to have toll roads through those mountains 
 where they had to keep from twenty five to fifty men shovelling to 
 get through, and there has been nothing like that since. I know of 
 no other cause that would account for it. I know also that we have 
 had less rainfall in the summer now than we had then. I don’t 
 know whether the weather service shows less rainfall up there or 
 not. My statements are just based upon my own observation. 
 
 Yes, I saw the Arkansas river in September, 1873, and I found 
 plenty of water at Pueblo. Not so much at Fort Lyon ; per- 
 
 3613 haps one-third less. By the time we got down into Kansas 
 there was no running water. I suppose it had soaked down 
 
 under the sand or evaporated, one or the other. But the whole 
 amount that I saw flowing in the river between Pueblo and Granada 
 couldn’t have evaporated, of course. 
 
 3614 Samuel N. Johnson, Denver, Colorado. 
 
 Direct examination. 
 
 By Mr. Dawson : 
 
 I am forty-six years of age, past, and reside at Durango, Colorado, 
 having lived there about seven years. I am justice of the peace, 
 and have lived in Colorado since May, 1875. In coming to Colo- 
 rado I came over the Santa Fe railroad from Topeka, Kansas, to 
 Granada, Colorado, and first became acquainted with the Arkansas 
 river in that year. We travelled from down ten or twelve miles be- 
 low the Kansas-Colorado line to Pueblo or Canon City, Colo- 
 
 3615 rado, along the river. In the fore part of the summer, in 
 May, June and up until along in the middle of July, there 
 
 was a good deal of water flowing in the river at that time. Along 
 about the first of July it began to diminish. In the fore part of July 
 I was near Fort Lyon, and I remember that about the 20th the 
 river had gotten very low. There came a rainy spell. It rained 
 about four or five days, and there seemed to be a general rain all 
 over the country. The river got up very high and overflowed its 
 banks. After that rain was over it cleared up and the river, ran 
 down very rapidly, so that about the first of August it was scarcely 
 
984 
 
 THIS STATIC OF KANSAS VS. 
 
 running at a point on the river about seven or eight miles above 
 Granada near the mouth of what we called Wolf creek at that time, 
 and there was very little water running. Of course there were holes 
 where there was considerable. I was down between that and 
 
 3616 the 15th of August about ten or twelve miles below Holly, 
 and down there at a little island in the river the river was 
 
 dry completely — no running water. There was some water in 
 holes. I know we considered the water in holes too stagnant to use 
 and we dug for water in the sand in the bed of the stream, to get 
 water for camping purposes. I was along there about a week and 
 there was no increase of water during that time, and then 1 came 
 back up the river to Pueblo and there was running water a little 
 above Las Animas. That was the first place I noticed the water 
 was running, and it was running at Pueblo; and the farther we 
 came the more water there was. At Rocky Ford I remember cross- 
 ing the stream on foot and I had on shoes and didn’t get my feet 
 wet, but up at Pueblo there was a pretty fair flow of water. I was 
 down the river in the months of July and August, 1876, and 
 
 3617 the river was low. Just below Granada there was a little 
 bit of water running, just below the railroad bridge there, 
 
 probably half a mile. The stream was not over four or five inches 
 deep and probably four or five feet wide. It was from three to four 
 idches deep in the deepest place. And down at this island I spoke 
 of, I wouldn’t be positive whether there was any running water there 
 or not. 
 
 The next year, 1877, 1 was there about the same time of the } r ear. 
 The river was running at the State line. But in one of those years 
 it was dry. Two years out of the three I was down there the river 
 was dry at that point. One year there was a little bit of water. 
 The farthest east that I was on any of these trips was about 
 
 3618 twelve or fifteen miles below the Colorado line. I was round- 
 ing up cattle at that time. We had a camping wagon and 
 
 mess wagon along and depended upon finding water in the river for 
 camp and stock purposes, and on account of this way of living I 
 had more opportunity and reason for observing the condition of the 
 river. 
 
 I was on the river in the summer time after that until the summer 
 of 1890. That summer I went down the Arkansas river from 
 Pueblo to Garden City, and there was more water at the State line 
 than there was at the times I had been there before, a little more* 
 but at Garden City I left the river and pulled north to the Smoky 
 Hill, because there was no water in the river. 
 
 Cross-examination. 
 
 By Mr. Ashbaugh : 
 
 When I was there on the river in Kansas in 1875 there was 
 2619 . flowing water within seven or eight miles. Ths increased 
 as we went up the river. I presume this water sank into the; 
 
THE STATE OF COLORADO ET AL. 
 
 985 
 
 3620 ground. There were no irrigating ditches of any size. Dur- 
 ing months of May, June and July, 1875, there was considerable 
 
 water, and it began to fail along in July. In the spring of the year, 
 generally up to July, there is usually considerable water. It comes 
 from the mountain sheds of the Arkansas river in the mountains, 
 and it has increased in amount during these months because of the 
 melting of the snows in the mountains. It sometimes rises and 
 comes up and there will be water for a few days from rain in the 
 mountains. There is this difference — that the high water from the 
 rains comes more suddenly than the high water from the melting 
 snows. When there is high water in the river for as much as two 
 or three months during May, June and July it is pretty good evi- 
 dence that it comes from the melting snows in the mountains. 
 (Objection.) And when there is a sudden flood and the river comes 
 up within a few hours and runs down within a few hours, that is 
 very good evidence that it comes from the rains. These are pre- 
 vailing characteristics of this river so far as I know, and are based 
 upon my observation. 
 
 Redirect examination. 
 
 By Mr. Dawson : 
 
 3621 As the river approaches the mountains it has a great many 
 tributaries in from different sections of the mountain ranges, 
 
 and these rains usually are not a general rain over the country ; 
 they are local rains, and they often occur at the heads of the various 
 tributaries. 
 
 3622 George W. Thompson, Denver, Colorado. 
 
 Direct examination. 
 
 By Mr. Hayt : 
 
 I am sixty-seven years of age and reside at Sopris, Las Animas 
 county, Colorado, above Trinidad about five miles, and I am some- 
 what interested in the mining business now. Mostly I have been 
 stock raising. I have been a farmer and have bred some stock. I 
 have lived in Las Animas county about thirty -seven years. I came 
 here in 1868. I was sheriff a couple of terms, and county commis- 
 sioner three terms, — twelve years. I was county commissioner from 
 1870 to 1882. I was sheriff just preceding that. 
 
 3623 Trinidad is located on the Las Animas river, or the Purga- 
 toire. The Purgatoire is a tributary of the Arkansas and 
 
 empties into it about a hundred miles from Trinidad, I think. My 
 business as a stock raiser has taken me somewhat over the area 
 drained by the head waters of the Purgatoire during the years I 
 have lived here, but my stock interest was mostly east, although I 
 had some stock that ran about Stonewall and up to the foot of the 
 
986 
 
 THE STATE OE KANSAS VS. 
 
 mountains. Sometimes my stock scattered that way, aud then I 
 was up that way fishing once in a while, and for these reasons I 
 have had occasion during these years to notice the snow fall on the 
 head waters of the Purgatoire river. I have been up there several 
 times since 1900 and there is not nearly so much snow since 1900 
 as before. The snow seemed to be deeper up in that country 
 8624 in earlier years and more of it, than there has been in late 
 years. I have noticed this effect upon the smaller streams 
 that go to supply the Purgatoire river. On Long’s creek that runs 
 in about a mile from our ranch ; and then there is Riley canon aud 
 Burrough canon and several of those canons than run into the Pur- 
 gatoire. There isn’t nearly so much water in them as there used to 
 be. And as regards the lakes, I didn’t notice them very particularly, 
 but I did notice up about Stonewall that there are some lakes there 
 that of late years there isn’t much water in them, so much as there 
 used to be. Above that is what is called the Stonewall, that runs 
 across. 
 
 On my cattle range— I settled there in about 1864 — there 
 
 3625 were some lakes with two or three acres of water in them 
 then, and they have entirely dried up since 1900. 
 
 I am considerably acquainted with the Arkansas river, because 
 my ranch was up east of there, and I had occasion to drive my beef 
 cattle down to Dodge very often, and past Granada, aud down to 
 the Arkansas River market. Before I moved to Trinidad I was 
 along the river. I went down there with a man by the name of 
 Foster, in about 1862, in eastern Kansas. I went by way of Bent’s 
 fort and old Fort Lyon and on down past where Granada now 
 stands, near the State line, and then went to Dodge, on that trip. 
 We had some horses, and there were some soldiers down at old Fort 
 Lvon, and we went on rather a trading expedition. We travelled 
 with a wagon and camped out over night along the river. 
 
 3626 Where we struck the river, about Pueblo, as we went down 
 the river the water got scarcer, and when we got below the 
 
 State line it commenced getting pretty low between that and Dodge, 
 and when we got down to Dodge there was not very much water in 
 the river. We found it dry at one time when we went there, in 
 1862, along down there. It was perfectly dry in places. We walked 
 across it. There were holes, though, standing, that we could water 
 out stock from, and we dug some holes to get water out of the sand 
 to use. It was a little better than the water that stood in holes, after 
 it settled. There was more water right along by the State line. The 
 holes were bigger and it was running more at Dodge. As we got 
 down say fifteen or twenty miles below the State line there was less 
 water than at the line; but after we got say fifteen or twenty 
 
 3627 miles it was practically dry clear on down. Of course we 
 had plenty of water to use and for our stock, but it was not 
 
 running to amount to anything. It was, I think, about the fore 
 part of August, 1862. 
 
 I was along the river again in 1864. I had a few stock I bought 
 
THE STATE OF COLORADO ET AL. 
 
 987 
 
 over at Las Animas, and I reached the river at Las Animas and 
 went as far as Dodge on that trip. I found the river just about the 
 same between Las Animas and Dodge City. I don’t think there was 
 much difference. It was practically dry about Dodge City and for 
 a hundred miles west. I think this trip was in September. 
 
 I was not along the river again to pay any particular at- 
 
 3628 tention to it until 1872. I believe I drove cattle down there 
 in 1871. That was the year. I drove them from my stock 
 
 ranch on the Mesa de Mar and struck the Arkansas river at the 
 State line and drove on down to Newton, Kansas. I found the river 
 very low all the way from the State line down. There was some 
 water at the State line, enough to water on, butas we went down the 
 water got lower and the river got wider and sandier. It was dry in 
 places and running in rivulets along a foot or so wide in places and 
 a few inches deep, and then in a quarter of a mile from there per- 
 haps there would be holes, and then below that you could 
 
 3629 cross over these rivulets without wetting your feet. Some- 
 times two or three of those rivulets would run only an inch 
 
 or so deep. An animal could hardly water out of them without 
 sucking up the sand. In 1878 I returned on the Arkansas river 
 with a bunch of cattle later in the season and I found the water still 
 lower. I came from Wichita with the cattle. I got down there along 
 in August and returned in September. It was away in October be- 
 fore I got to my range, and I was along the river a good part of Oc- 
 tober. The river at Great Bend down to Wichita that year was 
 very low. I should say about as I have described it before, most all 
 the way down, after you got below Granada. In 1877 I drove these 
 cattle to Great Bend and grazed and held them there for two or 
 three months on the open market before shipping. The river that 
 year was low. We grazed our cattle by Great Bend, on the south 
 side of the river mostly, and it was about as I have previously 
 
 3630 described it. I drove down there after that pretty nearly 
 every year up to 1886. I drove, my beef cattle down to 
 
 Dodge. I would strike the river about Granada. I would generally 
 start with my cattle about the middle of July and graze along, and 
 it would be perhaps August before I would strike the Arkansas 
 river. There was about a hundred miles that I went down Rule 
 creek before stricking the State line. Then I would drive 
 
 3631 down the Arkansas river about two hundred and fifty miles 
 to Dodge. When we would get down there the nearer we 
 
 got to Dodge the lower the water was. At times they couldn’t 
 water only in these holes and we would have to hunt them. Some- 
 times they would be a mile or so apart where there was good water- 
 ing places for the cattle. 
 
 Cross-examination . 
 
 By Mr. Ashbaugh : 
 
 The last time I drove cattle down there was about 1886, and we 
 struck the river about the middle of July. We generally travelled 
 
988 
 
 THE STATE OF KANSAS VS. 
 
 on the north side of the river. I suppose we went along close 
 
 3632 to where Garden City is now. I don’t recollect about any 
 ditches being there in 1886. I don’t know whether there was 
 
 or not. If there was running water in them I think I would have 
 seen it. But if there was any water running in the ditches there I 
 didn’t see it. I drove down there in 1885, mostly on the north side, 
 but I don’t recollect seeing any ditches at Garden City. I don’t 
 recollect seeing any either then or at any other time. In 
 
 3633 1887 we found very little water from the State line clear to 
 Newton. We didn’t go to Newton that year. We held our 
 cattle at the Great Bend and sold them on the market the 
 
 3634 next year. I can’t recall where we left the Arkansas river 
 in order to go to Newton. We crossed Walnut creek, and 
 there was a little water in it. We crossed it in 187 L, I think, 
 
 3635 in August. As to crossing the Little Arkansas river, I don’t 
 recollect the names of those streams down there. It was a 
 
 good while ago. I have seen the Arkansas river when it had water 
 in it, though, in the State of Kansas. That was when I drove down 
 with these cattle. A good many times there was a substantial 
 amount of running water in the river. When I was down about the 
 State line there was considerable ; but when we got down the water 
 ran in rivulets and stood in holes. There was a shower that would 
 come every once in a while and there was a rain or two fell on 
 
 3636 us. I never saw the river dry at Pueblo. I always con- 
 sidered that when the water got down into that sandy country 
 
 it evaporated. What didn’t evaporate went into the sand and was 
 lost. 
 
 As to some of those lakes up near Trinidad, my best recollection 
 is that they have been dry there eight or ten years. I have not 
 been down there, however, in the year 1904. I don’t know whether 
 they are now dry or not. I believe those lakes are still dry, 
 
 3637 from information, so that the wet season of 1904 didn’t pro- 
 duce any water to stand long. These lakes were supplied 
 
 originally from the foot hills of the mountains. There is no irriga- 
 tion above them, and none below until you get down on the Purga- 
 toire. As a rule, at their ordinary stage, these lakes have no out- 
 let. In big storms, of course, there would be an outlet. The 
 
 3638 water would run off and go down the Purgatoire. What 
 caused these lakes to go dry ten years ago I should think is 
 
 because there is not so much snow and rain in the country. I have 
 no information on that outside of my own judgment and because of 
 my crops. I don’t know of anything that would cause a change of 
 snow fall in the mountains, and I am not posted on what the weather 
 reports show as to that. 
 
 I have been on the Arkansas river through Kansas when there 
 was high water in the river. I think that was in 1871. I might be 
 mistaken as to the year, but the time of the year was in July. It 
 lasted for a week or so, I think. I don’t know when the high water 
 began nor how long it lasted. It was a rainy season that year and 
 
S$A$IC OF COLORADO ET AL 
 
 989 
 
 there were considerable rains along the river, I think suf- 
 §640 ficient to affect it. I don’t know anything particularly about 
 what they call the June rise, but we have rains along in the 
 latter part of Jane that raise the water in the Arkansas river. I 
 never noticed that the river might be up without local rains. I 
 don’t think there is snow enough in the mountains to make a flood 
 or anything. After the snow molts of course it runs off gradually 
 and when it ran off the river would be higher than when there was 
 no snow melting. 
 
 3642 J. 0. Packer, Denver, Colorado. 
 
 Direct examination. 
 
 By Mr. Hayt : 
 
 I am fifty-eight years of age, and reside at Trinidad, Colorado. I 
 am a member of the bar, but have not been practicing for the last 
 fifteen years. I have lived at Trinidad since 1873, and I guess I 
 have seen the Arkansas river every year since 1870. I saw it in 
 western Kansas and eastern Colorado in 1871, first at a point from 
 Fort Dodge to Las Animas. I also saw it earlier in the season when 
 we crossed it with a herd of cattle at Rocky Ford. We were driving 
 a herd of cattle on this trip. We drove from Abilene. I didn’t go 
 with the herd all the way. I overtook it at Fort Dodge and then 
 came with it up the river to the ranches, this side of Las Animas. I 
 don’t know the exact distance. I came from the railroad, 
 
 3643 across from Fort Hayes to Fort Dodge to join the herd, and 
 from there I followed the river up to Las Animas. It was in 
 
 the latter part of September or the first half of October. I remem- 
 ber that for two or three campings it was about dry. It was run- 
 ning a little in little streams maybe a foot or so wide, but you could 
 walk across the narrow river bed without getting your feet wet ; 
 and we camped one night, I know, on the bank of the river, and the 
 cook, to get water, — well, there was water running in small rivulets — 
 dug a hole in the sand under the bank to get water for the 
 
 3644 camp. But the cattle scattered out and got what water they 
 wanted. The reason he dug the holes was because the other 
 
 holes were not deep enough to dip from. I think the water in- 
 creased as we came toward the Colorado State line, because I didn’t 
 notice the river being dry that year except those two or three camp- 
 ings after I joined the herd. I think I joined it at a place called 
 Cimarron crossing. I didn’t see the river the next year at any point 
 except Las Animas. There was a great deal of water in it 
 
 3645 then. This was early in the season. And we had to swim 
 our cattle. I don’t remember particularly the condition of the 
 
 river in 1873. The only reason I remember it the other time, in 
 1871, is that George Lockwood, who owned the herd with me, said 
 “ It looks bad. It looks as though we couldn’t water our cattle.” 
 
§90 
 
 HlE STATIC OE 1 fcAMsAS VS, 
 
 And of course I noticed and remembered that. But when We crossed 
 the river at Las Animas the next year, I don’t remember anything 
 about it. There must have been plenty of water, and yet not enough 
 water to make it bad crossing. I remember we forded it. There 
 was no other way. But I don’t remember the circumstance. 
 
 Cross-examination. 
 
 By Mr. Ashbaugh : 
 
 3646 The last time we forded it was in 1872, I think about four 
 miles below Las Animas. We were not bothered in crossing 
 
 it, and we didn’t have to swim the cattle, although I remember that 
 we swam the cattle the first year in driving to Denver, at the cross- 
 ing at Rocky Ford, in June. There was more water in 1872 when 
 we crossed at Rocky Ford than in 1871 when we crossed at Los An- 
 imas. It was in September or October, 1871, that we found 
 
 3647 the river so low. I know nothing about how the water had 
 been in the river prior to that time in that year. I don’t re- 
 member noticing the river being dry only two or three times, at 
 two or three campings. There was more water up the river than at 
 Dodge. I think the water sank in the sand. The bed of the river 
 down there was a great deal wider than it was above. We dug for 
 water in the bed of the stream, not only to get water, but we could 
 
 get better water. It was clearer. And the water we got in 
 
 3648 the holes we dug was cool. Even where there was no water 
 on the surface there was water beneath. I think that by dig- 
 ging down anywhere in the bed we could get water very near the 
 surface. 
 
 3649 Clinton B. Sharp, Denver, Colorado. 
 
 Direct examination. 
 
 By Mr. Hayt : 
 
 I am sixty-two years of age, and I guess Huerfano county would 
 be my home. I have got a ranch down there, and I have been run- 
 ning back and forth, and I expect to go back in the spring, but just 
 at present I am stopping at Denver, and my family is here. I have 
 been a ranchman and stock raiser, and atone time I was water com- 
 missioner down in Huerfano county a while. That was 
 
 3650 about in 1887, and I worked off and on until 1891. When I 
 first came to Colorado about twenty-six years ago I settled on 
 
 the head of the Huerfano river and I lived there about ten or eleven 
 years. My post office was Sharpdale. It is about two miles east of 
 the Moscow pass, and that is in the Sangre de Christo range, some 
 six or eight miles north of the head of the Huerfano, but the tribu- 
 taries run right up there. When I left Sharpdale I located on the 
 Cucharas, two miles below Walsenburg. That was in about 1885, 
 and I have lived there ever since. 
 
STATE OF COLORADO ET AL. 
 
 eoi 
 
 When I was water commissioner I had charge of the upper Cu- 
 charas, Bear creek, the Santa Clara and all the tributaries south 
 
 3651 of the Huerfano, and I had occasion during the earlier years 
 I lived in Huerfano county to notice the snow fall on the 
 
 head waters of the Huerfano and Cucharas river. At the head of 
 the Huerfano, from where I lived, I could see a big body of snow 
 the year around. I guess some of the snow was there that fell the 
 first time, that was never known to go out. A big bed of snow and 
 ice blocked right up on the north slope, right against the Sierra 
 Blanco. That was in full view of my house. The Sierra Blanco 
 is the highest mountain in Colorado. The Huerfano river at its 
 head is located, I guess, fifty or sixty miles above the Cucharas 
 river, and these two streams drain the country lying between. 
 
 3652 There is a divide between the two. In the earlier days there 
 was a toll road on Moscow pass, and in that day and time we 
 
 didn’t feed any stock. I was running a stock ranch pretty much all 
 the time. I was out on the range mighty near every day, and the 
 snow then was deep on the range pretty much every winter. It 
 would be packed in this toll road from twenty to thirty feet deep, 
 and they would shovel it out, and when it got so bad they couldn’t 
 cross in wagons, they went over it. The mail went over it every day, 
 and I was up on the range and around there every week riding all the 
 time. But of late years we are not bothered with that snow at all. 
 I think they have to shovel it but very little. Sometimes a small 
 drift will come in the road and bother them, but the snow fall is 
 not much there of late years. The snow w T as just over the slope, 
 probably three hundred yards in length, where they used to shovel 
 it. I am up there every year since 1900, but not in the winter very 
 much. I go up sometimes in the fall and sometimes in the 
 
 3653 spring. The snow fall since 1900 has not been very bad right 
 upon the Huerfano. I have a brother who furnishes beef for 
 
 that camp at the head of the Huerfano. They have been running 
 five or six years, and he made a trip once or twice a week, and told 
 me the snow didn’t bother him but very little in getting back and 
 forth with beef since 1900. The snow during these later years was 
 not as much as fifty per cent, of what it used to be. It used to be 
 that you couldn’t get up there on horseback or any other way only 
 on snow shoes. Of late years the water doesn’t get up there in June. 
 The latter part of May and June is when the water or the bulk of 
 the water comes down from the head of the Huerfano ; and when I 
 first came to the country in crossing it back and forth hand- 
 
 3654 ling stock it was a little dangerous to cross it in those months. 
 I am referring to the head waters. That was some eight or 
 
 ten miles right from the head of the stream, and of late years I 
 don’t think I ever saw it so that it would strike the horse’s body at 
 any time. The flow of water has not been as great. 
 
 In regard to the tributaries of the Huerfano and Cucharas rivers, 
 they have dropped off in proportion. Some water would come 
 down and would run out enough to irrigate forty acres of meadow. 
 
992 
 
 THE STATE OE KANSAS VS. 
 
 We had a meadow right close to the place I lived oil and we used 
 to put up seventy tons of hay off that meadow. We irrigated it all 
 from a dry gulch. There were a few springs up the gulch, but down 
 next to the meadow it was a wet place and there were no running 
 springs, gulches or anything for the water to run in. It just spread 
 out. But we took out ditches all the way up and ran the water out 
 on each side, and we let the water run there and made a good crop 
 of hay. But for the last four years they haven’t cut any hay there, 
 and there is no water. The stream has dried up. No water 
 
 3655 comes, I don’t think, half a mile from the main range. 
 These ditches were just small ones. We would just run out a 
 
 furrow or two. I know of little draws that come down on the south 
 side of the Huerfano where the neighbors just went up and fenced 
 in places for potatoes, barley patches, etc., five and six acres in a 
 little field, and usually there would be water coming down enough 
 there to irrigate them. They have hauled the poles away and 
 abandoned those places entirely, on account of no water. I know 
 of a good many lakes in that vicinity that formerly had water in 
 them and that are now dry, but they are not fed from any stream. 
 They are just natural lakes ; no overflow to them. They are located 
 between the Huerfano and the Chucharas. And when I first came 
 to this country, for ten or twelve years those lakes were pretty 
 
 3656 well filled all the time. I never saw them dry. But for the 
 last four or five years there has been about half of the time 
 
 when I would come along there they would be perfectly dry. There 
 is some eight or ten that I know of between the Huerfano and the 
 Cucharas. A big rain would put a little water in them, but they 
 would soon dry up if it didn’t keep raining. 
 
 I have had experience in trying to get water down the Cucharas 
 through the Huerfano into the Arkansas. We tried to get it to 
 No. 1 ditch, down on the Doyle place. We shut down all the head- 
 gates and turned all the water in, and I think we kept the water 
 in the river fifteen days, and I think two feet of that got down 
 
 3657 to the Doyle ditch. I don’t know the amount in the Huerfano. 
 In the Cucharas, at Cuchara, I measured it there every few 
 
 days. I measured it first and then had a mark to go by. I think 
 it was twenty-two or twenty -three cubic feet per second of time. I 
 think this is about forty or fifty miles from the intake of the Doyle 
 ditch ; and all that water was lost between the point of measure- 
 ment and the Doyle ditch, with the exception of about two cubic 
 feet. In addition to this we had twenty-two cubic feet of water 
 running in the Huerfano, and the two combined was not sufficient 
 to supply more than two feet to the Dovle ditch. I think this effort 
 extended over a period of fifteen days, and then we were ordered to 
 turn the water loose and divide it up according to priorities, but 
 the result was that we found we couldn’t get the water down to the 
 Doyle ditch and so we used it to supply the later priorities on the 
 Cucharas river. 
 
THE STATE 01 r COLORADO ET AL. 
 
 993 
 
 Cross-examination. 
 
 By Mr. Ashbaugh: 
 
 3658 As to what became of this water, it just went right down 
 in the sand and gravel. It had done that before. It was not 
 
 an unusual thing for the water to go down into the sand there. I 
 have seen it frequently since. 
 
 I think there is less snow in the mountains now than there 
 used to be. I don’t know what the cause of this is. I don’t 
 think it is caused by the timber having been cut off in any 
 way, for there is no great amount of timber cut off, and 
 
 3659 not much change in that direction. I don’t think there 
 is as much down there as north. If there is not as much 
 
 snow it will show in the river the next summer. I have been up 
 there every fall and sometimes in the spring and sometimes during 
 the winter, and I used to be there all the time during the winter, 
 and the amount of snow fall made a deep impression upon my mind, 
 and now I have been there only once in a while during the winter 
 and have not noticed it particularly. 
 
 3661 Walter N. Houser, Denver, Colorado. 
 
 Direct examination. 
 
 By Mr. Dawson : 
 
 I am a civil engineer, also stock raiser and farmer. I live at 
 Walseuburg, Huerfano county, Colorado, and have lived in Colorado 
 for twenty- nine years. 
 
 3662 I saw the Arkansas river in eastern Colorado and western 
 Kansas in 1877 first. I was engaged in rounding up cattle on 
 
 the river that year, from Rocky Ford down to thej State line, and 
 along about the first of September on until the first of October. At 
 that time there was very little water in the river. It was mostly 
 confined to water holes. There were places where there was 
 
 3663 no running water. There was no uniformity in this regard. 
 Sometimes possibly there might be some places as far as a 
 
 mile, usually in places along under the heavy banks, and in places 
 where the shale would come to the surface there would be a small 
 stream of running water, and where it would strike sandy places it 
 would sink. My recollection is that the water came to the surface 
 right in below Rocky Ford there in a shale bed. It was a small 
 stream. The greatest distance would be perhaps a mile between the 
 holes, or about that. And it may be ingoing east from Rocky Ford 
 there would be a couple of miles, and again it might not have been 
 but half a mile, between these holes. I went east from Rocky Ford 
 about to the State line, and the river there was very dry, and there 
 were places where there was no running water. I think we stayed 
 about a month on that trip before we got back. We watered our 
 63—7 
 
994 
 
 THE STATE OF KANSAS VS. 
 
 stock from and camped along the river. I don’t think that the 
 water flow improved and during our trip. 
 
 3664 I was next on the river in eastern Colorado in September, 
 187tt, and if anything'the river was a little drier than in 1877. 
 
 I think the description I gave as to 1871 would hold good as to this 
 year. On this latter trip I was taking a bunch of horses to where 
 Oklahoma is now, on Beaver creek, from Denver. I think we 
 crossed the river right in below where Rocky Ford is now. 
 
 I have lived in Huerfano county nineteen years, and in Walsen- 
 burg about twelve years. I was deputy water commissioner in that 
 district for about three years. My district covered the Huer- 
 
 3665 fano river and its tributaries in Huerfano county. I was 
 deputy water commissioner, ten, eleven and twelve years ago, 
 
 and my duties as such were distributing the water in the river among 
 the consumers according to priorities. My district didn’t take in ail 
 of the tributaries. In performing these duties I had an opportunity 
 to observe the water conditions in that locality, and for the last three 
 years the water was very scarce in that locality. I also had oppor- 
 tunity to observe the snow fall in the mountains on the head 
 
 3666 waters of the streams making up the Huerfano river during 
 the time I lived in that vicinity, and for the past three or four 
 
 years the snovv fall has been exceedingly light. I don’t believe 
 there has been to exceed fifty per cent, of the amount there was 
 there ten years ago. In the spring of the year when the thaw comes, 
 on account of the less fall of snow, it has a tendency not to raise the 
 stream as it did in former years, in fact we have had no high water 
 in the spring for the last three years. 
 
 I have been engaged in the cattle and sheep business, and at the 
 present time own quite a number of cattle, and my range is on top 
 of the mountains in the summer, and of course in the fall of the 
 year, up to the first of January, we are always rounding up our cattle 
 and bringing them in to the ranches, and every year I visit 
 
 3667 the top of the mountains and the source of supply of the water 
 of the tributaries of the Huerfano river, and I have noticed 
 
 in several places that lakes are dry to-day where they were filled 
 with water ten years ago. Especially is this true on the head waters 
 of a branch of the Cucharas river. There are several lakes there 
 where my cattle run which now are comparatively dry, except fora 
 little time perhaps in the rainy seasons, but they dry up every 
 summer, and formerly they had water the year round. We hardly 
 ever name these lakes in the mountains. On the prairies the lakes 
 generally have names, but in the mountains we don’t call them by 
 name. These lakes I am speaking of have not been drained or 
 dried by any artificial means. They simply dry up by a lack of 
 precipitation to furnish water to fill them. 
 
 In addition to this difference in the snow fall I have spoken 
 
 3668 of, there are other conditions which tend to allow the escape 
 from melting snows and rainfall. For instance, the verdure is 
 
 not nearly as great now as it was in former years, on account of the 
 
THE STATE OF COLORADO ET AL. 
 
 995 
 
 fires. Saw mills have been catting the timber. Cattle and sheep 
 have been grazing in the mountains and consuming and destroying 
 the undergrowth. At the present time you can ride over the moun- 
 tains outside of the rocks most anywhere, and formerly it was very 
 difficult to get through, from the underbrush, etc. In our present 
 locality I should say the heavy timber has decreased at least fifty 
 per cent, in the last ten or fifteen years. The smaller timber not so 
 much so. The heavy timber generally was located on the north side 
 of the hills, and our country being subject to heavy west winds, 
 which drifted the snow over the mountains and deposited it in this 
 heavy growth of timber, the shade there preserved it and it became 
 very hard and icy in its formation, and it would last, where now 
 the sun penetrates it, on account of those bodies of timber being 
 thinned out, and it melts more rapidly than in the former 
 years, and the tramping of the grass that formerly covered the 
 country, and the destruction of the underbrush, has the same 
 effect. The surface is open to the rays of the sun 
 
 3669 more and does not 'retain the moisture as it did in 
 former years when the undergrowth was heavy and the ice 
 
 would form in or become perfectly wet, and it would keep cooler 
 and last longer than at the present time. When I first came to the 
 country the grass was knee high, and now it is — well, it is very 
 short now every year. We hardly ever have much grass in our 
 country. It is confined strictly to gramma grass which formerly 
 used to head out, but it seldom heads out now. The verdure is so 
 thin that the sun dries up the ground so rapidly that the grass 
 doesn’t grow as it did in former years. And I think this also allows 
 the rain to run off more rapidly than it did in former years, as is 
 witnessed by the fact of the country getting cut up with arroyasand 
 washouts, which go farther up the draws. I think in the last 
 
 3670 few years we have more rain in the summer than we used to 
 have years ago, that is, more violent storms and less snow, 
 
 and these rains cut up the country more than they did formerly 
 when there was more grass on the ground. 
 
 My water district is No. 16 and comprises the Huerfano and its 
 tributaries. 
 
 Cross-examination. 
 
 By Mr. Ashbaugh : 
 
 When I was down on the Arkansas river in 1877 and 1878, if I 
 crossed the State line at all I wasn’t any distance in Kansas and 
 know practically nothing about the flow of the river in Kansas, and 
 my observation was confined to the two or three eastern counties of 
 Colorado. There was running water usually right below 
 
 3671 Rocky Ford, while below that the sand was heavier. As to 
 this water that disappeared, some parts of it were evaporated 
 
 and other parts percolated through the sand in the stream, I expect. 
 The bed of the stream is very sandy, and it absorbs the water. In 
 
996 
 
 THE STATE OF KANSAS VS. 
 
 some places the bed of the stream is wider at the State line 
 
 3672 than it is at Rocky Ford. I think the river bed gets about 
 a thousand or fifteen hundred feet wide between the banks in 
 
 western Kansas, and in some places along about Rocky Ford and 
 Las Animas I think it is a good deal wider. 
 
 As to my observations on the snow fall, that it is lighter in the 
 last three years than it was prior to that, this is one of the disad- 
 vantages for the residents, I think, but I couldn’t say that we are 
 advertising it. I couldn’t say that it is one of the facts of the 
 
 3673 case for the purpose of this trial. I think the snow fall was 
 lighter for the last three years than for the three years im- 
 mediately after 1890 and for the five years prior to 1890. The snow 
 fall for the last five years has been a great deal lighter than it was 
 the first five years I was down in that country. 1 don’t remember 
 that there was any complaint that the snow fall during the later 
 years has been less than during the former years. This diminution 
 
 in the fall of snow became perceptible about four years ago. 
 
 3674 Five years ago I can remember we had a great deal of snow. 
 We had quite a heavy snow down there three days ago. It 
 
 is the first we have had to amount to anything for three years. 
 This diminution in the snow fall has been confined to about the last 
 four years. 
 
 I think the loss of water in the lakes that I spoke of has been con- 
 fined practically to the last three years and corresponds with the 
 falling off in the snow fall, and I attribute it to that and to 
 
 3675 no other cause that I know of. These lakes first went dry 
 about 1901. They formerly held water the year round down 
 
 to that period. 
 
 The denuding of the forests began about ten or twelve years ago. 
 This has been mostly confined to the Government land. The people 
 generally just went in and cut the timber off. The heavy timber 
 has also been destroyed by fires. The denuding extended back 
 more than ten or twelve years, but has been more noticeable 
 
 3676 since about that time. I don’t think the forest has any con- 
 trol over the amount of snow that falls, but I am satisfied that 
 
 it controls the melting of the snows. It is a conceded fact out here 
 that when the snow falls on the mountains in the timber it will 
 melt later and more gradually than that portion which falls on the 
 barren land where the sun can get at it or where an immediate rain- 
 fall would suddenly melt it. 1 don’t think that the denuding of 
 the sides of the mountains of the timber has had any appreciable 
 effect upon the amount of snow that fell there, and it affects only 
 the rapidity with which the snow melts in the spring. We 
 
 3677 have had no high water in the last three years in the spring 
 of the year from melting snow. In June, 1904, we had 
 
 considerable rain, which was an exception, and our streams were 
 raised some with that. For a few days they were quite excessive. 
 Some of the rains of 1904 were of the heaviest we have had for a 
 
THE STATE OF COLORADO ET AL. 
 
 997 
 
 great many years. 1904 was not known as a wet year among 
 
 3678 us. These heavy rains cause some destruction of property. 
 I have kept no account of the rainfall and can’t say how the 
 
 comparative amount of snow fall and rainfall for the last four years 
 compares with the four years succeeding 1890. Possibly the pre- 
 cipitation for the whole year might not have been much different 
 for the whole year. Our rains are confined mostly to the lower 
 valleys and the snows mostly to the mountains. 
 
 Examination by Mr. Campbell : 
 
 The supply of water in the mountains no doubt would become 
 less if the forests were cut down. 
 
 3679 Yes, to a certain extent successful irrigation in this coun- 
 try depends upon keeping up the forests, and where they are 
 
 cut down they would have to be renewed. 
 
 I am familiar with the water shed of the Arkansas river. I 
 have been educated as a civil engineer and know something about 
 building reservoirs. There are a great many places in the water 
 shed of the Arkansas river in Colorado where reservoirs could be 
 erected to catch the flood and other waters which now escape. I 
 think there are three in Huerfano county that would be practicable 
 for building reservoirs. I never made any observation along that 
 line at the head of the Arkansas river, only in our own 
 
 3680 county. There is water enough escapes during the spring 
 and at other times of the year to fill such reservoirs if they 
 
 were erected on the sites I have in mind. The waters thus stored 
 would irrigate many thousands of acres. By “ many thousands ” I 
 mean at least a couple or three thousand. You can successfully 
 raise timber in the mountains without irrigation, but you cannot in 
 the valleys. 
 
 Recross-examination. 
 
 By Mr. Hayt : 
 
 3681 I think that the climate in our part of the country has 
 changed somewhat in the last few years. It seems to me we 
 
 have more rain in the summer time and less snow in the winter 
 than in former years, and I don’t think it is as cold for as long a 
 time as in the former years during the winter. 
 
 Redirect examination. 
 
 By Mr. Dawson : 
 
 3682 I have had considerable experience with Medano creek. 
 That runs in the Sand Hills country in the San Luis valley, 
 
 and I have noticed the evaporation of water running in that kind 
 of soil. I gave ver\ r close and particular attention to that stream 
 because there was certain litigation that was in progress concerning 
 
998 
 
 THIS STATE OF KANSAS VS. 
 
 its waters. I took a ditch out of it for irrigating purposes, and 
 I have observed that the evaporation is very rapid oil account of its 
 running across a sandy bed and through a dry country. I don’t 
 think I could illustrate this to prove my theory, because the water 
 sinks vertically and also evaporates. What proportion I 
 
 3683 couldn’t say, but I know that both are great. Where the 
 water would run out thin over the sand and be exposed to the 
 
 rays of the sun, as it is down on the Arkansas river in eastern Col- 
 orado and western Kansas, there is no doubt the evaporation is very 
 extensive, but as to what percentage I couldn’t say. 
 
 3684 Claudius V. S. Hart, Denver, Colorado. 
 
 Direct examination. 
 
 By Mr. Hayt : 
 
 I am fifty-three years of age, and my postofhce address is Api- 
 shipa, in Las Animas county. I have lived in this county since 
 January first, 1881, and previous to that time I lived in Denver, 
 from March, 1867 to January 1868. 
 
 I crossed the Arkansas river in 1868, but I first saw the river in 
 western Kansas or eastern Colorado near the State line in 1875. I 
 was gathering cattle — rounding them up — at that time, and that 
 was about August or September, what we call the fall round-up. 
 We probably were on the river two to four days. We were there at 
 different parts of 1875, anywhere from just above Granada 
 
 3685 up as far as Pueblo. I was down there for two months, sev- 
 eral times, and saw the river at different times, two or three 
 
 days at a time, probably ten or fifteen or twenty miles apart where 
 we would leave it until we came back there again, down the other 
 stream. At that time, in 1875, there was very little water in it. 
 Sufficient for stock purposes, though. In some places it would be 
 running a little and in other places there would be standing water 
 in pools. In some places there was no water at all between these 
 pools, and in other parts of it they were connected by little streams, 
 and in some places the bed was absolutely dry. I should say we 
 would camp for a night or two, and the general course we worked 
 our stock was up one stream and across over to the next, — up the 
 Purgatoire and then down the Timpas creek. And that started in 
 on the Arkansas river just a little above — west — from 
 
 3686 Granada, and from there up as far as Pueblo. There was 
 more water as we came up farther on the river. I think there 
 
 was more water running up about Rocky Ford than at any place I 
 have observed. 
 
 I visited the Arkansas river again the next summer, in 1876. I 
 was there every summer from 1875 to 1879, engaged in the same 
 business. I am not positive about the river in 1876, but in 1877 it 
 was very dry. I was down there in the May round-up. That was 
 what we called the spring round-up. And then there was consider- 
 
THE STATE OF COLORADO ICT AL. 
 
 999 
 
 able water. Bat in the fall hunt, which commenced about the mid- 
 dle of August, and from that on, we found very little water and by 
 “very little” I mean about the same as I have described in 
 3687 1875. There were places where there was absolutely no water 
 
 at all. You could cross it. But my particular observation 
 at this time was confined to probably half a mile or a mile of the 
 stream, but at other times my observations extended thirty or forty 
 miles up and down the river in the vicinity of Granada and up as 
 far as Pueblo. In 1878 the conditions of the river were very similar 
 to those of 1877 and 1875; that is, in the summer time. I was down 
 there about the same time in 1878 and 1890 in former years, as our 
 system of rounding up generally commenced about the same time 
 or within a week or such a matter. The fall round-up commenced 
 about the middle of August to the first of September, and we would 
 generally get up home about tbe first of November. 
 
 368S I am well acquainted with all of the headwaters of the 
 Arkansas river from Pueblo south to the State line, especially 
 with the Apache creek, -a tributary of the Huerfano, and the Huer- 
 fano, Cucharas, Bear creek, the Santa Clara and the Purgatoire. 
 The Apache is the first tributary to the Huerfano on the north side ; 
 the Cucharas is a tributary to the Huerfano; the Santa Clara emp- 
 ties into the Cucharas, and Bear creek does too ; and in turn the 
 Cucharas empties into the Huerfano and the Huerfano into the Ar- 
 kansas. 
 
 I have had occasion to observe the snow fall during the years I 
 have lived there about the head waters of these streams. I have 
 had considerable work from 1881 up to about 1885. I was in the 
 timber business, working for parties getting out ties and 
 
 3689 lumber. We were doing this work all the year round, but 
 there were more engaged in it in the winter time. The tim- 
 ber was taken out on the head waters of the Santa Clara creek, on 
 the Apishipa and on the hills between the Apishipa aud a place 
 called Canon del Agua, six miles south of the Apishipa, and while 
 cutting this timber and looking after my stock I was frequently up 
 in the mountains during these years, and since 1885 I have been up 
 there frequently in the stock business but have not been engaged 
 
 in the timber business. I have neighbors up there and have 
 
 3690 bought stock a good deal from them. I have been up in the 
 mountains several times since 1900. My home is located 
 
 about twenty miles from the peak and about two miies from what 
 we call the foot hills. Since 1898 or 1899 I don’t think there has 
 been fifty per cent, of the snow fall up in that country that there 
 was previous to that, aud we don’t have as much water in the 
 streams on that account. There are a few lakes scattered around 
 over the prairie, one ten miles east of me called the Widderfield 
 lake. The lakes are named that way because they are close to the 
 ranches of parties by those names so that we know just what ones 
 we are talking about. There is another lake called the McEnnery. 
 It is in township 30-64. There are also other little lakes around 
 
1000 
 
 THE STATE OF KANSAS VS. 
 
 there, but I don’t know their names, and they formerly had 
 
 3691 much more water in them than they have in the last few 
 years, as in the latter time they are very dry with us. Five 
 
 years ago — that was in 1900 — there was more water running down 
 the Apishipa than I ever saw since I have lived there, in the spring. 
 It was caused from the early rains. It rained almost continually. 
 Oh yes, I have seen these lakes go entirely dry, and in these last 
 five or six years the complaint has been general from the men living 
 on these lakes that irrigate the land as to the scarcity of water. 
 They don’t get enough. I personally having an interest in three 
 ditches, we don’t get half the water we used to. 
 
 In regard to the timber at the head waters of the Santa Clara 
 and those other streams in that vicinity, including the Apishipa, I 
 should judge that in the next ten years at the present rate that has 
 been going on since 1876, there will not be a stick large 
 
 3692 enough there to make a whip-stock. They are cutting this 
 timber every day, everything that is four inches in diameter 
 
 and from four to eight or ten feet long. It is cut and hauled and 
 sold to the mines for mine ties and mine props, and that which is 
 large enough is cut into railroad ties. They are shipped to differ- 
 ent mines. They used them at the Victor Fuel Company, the Colo- 
 rado Fuel & Iron Company, the the Hastings, the Berwyn and the 
 Tobasco, and there are a great many coming into Canon del Agua. 
 These are coal mines, and some of them are very extensively worked. 
 I heard they had on pay-roll at the Hastings at Canon del Agua 
 something like a thousand men. These mines are located pretty 
 close to the base of the mountains and near the timber that 
 
 3693 is cut off. If a man saw the country previous to 1880 and 
 would see it now he would hardly recognize it as the same 
 
 country, except from the mountains. So far as the timber is con- 
 cerned there is no comparison. There is considerable small pine 
 now that I have noticed along there. I don’t think there is any- 
 body living now that will be alive when they are big enough to be 
 used, they grow so slowly. They use this small timber for mine 
 ties and possibly for fire wood. 
 
 Cross-examination. 
 
 By Mr. Ashbaugh: 
 
 3694 I don’t think I went down the Arkansas river in 1876 when 
 our camp wagon went down. There was one time in 1877, 
 
 1878 or 1879 along the river that there had been a rain in the 
 mountains and there was a flood and it was bank full. I think 
 that must have been in the spring round-up of 1877. There was 
 usually more water in May, June and July than there was in Sep- 
 tember and October. In April, May and June is when the stream 
 receives more water from the mountains, and rains, than at any 
 other time except what we call rain storms or floods, and these 
 
THE STATE OF COLORADO ET AL. 
 
 1001 
 
 periods of high water vary according to the amount of snow 
 
 3695 in the mountains. Those times that I saw the river very low 
 were during the dry season of the year. I never saw the 
 
 time when there was not any visible water, only. in places, parts of 
 it, and although evaporation had gone on so rapidly, I attribute 
 that to a kind of underflow, or the water sinks in the sand and 
 gravel down to a very hard foundation. When the water strikes 
 that it will come to the surface. I was not down across the 
 
 3696 Kansas line nor beyond Granada at that time. There has not 
 been half the snow fall since 1900 that there was for the four 
 
 years succeeding 1890. The snow fall for the four years succeeding 
 1890 would not compare with the snow fall for the four years suc- 
 ceeding 1880. In October, 1880, I was at the Spanish peaks when 
 the snow fell there about three feet deep. 1890, as I recollect, was 
 about what we call an average winter, but less than 1880. The de- 
 crease in the snow fall that lias been noticeable has been since 1898 
 to 1899, to be positive about it, and these lakes that I spoke of, have 
 gone dry since 1898 and 1899, but prior to that time they had water 
 in them. 
 
 3697 As to the denuding of the forests, when the trees were there 
 it is more noticeable that it retained the snow there longer 
 
 so that it melted slower and let the water run longer, and we got the 
 benefit of it. In other words, it holds it there until the warm rains 
 melt it. It would be the observation of farmers and stock men that 
 in those portions of the mountains where the timber has not been 
 cut off it might not increase the amount of snow fall but holds the 
 time of its melting back so that it melts later and more gradually. 
 The timber retains the snow longer. 
 
 Examination by Mr. Campbell : 
 
 3698 The timber I spoke of that was being cut in the mountains 
 was cut on the tributaries and hills in these localities I spoke 
 
 of east of the Spanish peaks. This cutting of the timber has been 
 going on ever since the Denver & Rio Grande railroad was built in 
 1876. They are cutting timber there less than eight inches in 
 diameter for the last seven or eight years. The Colorado Fuel & 
 Iron Companp own some of the mines that use the timber that is 
 cut, and for these mining purposes they are cutting timber at 
 
 3699 four inches. The laud from which this cutting is being done 
 has not been proven to be mineral land. They generally 
 
 prove it as mineral land if they cut timber on it. They are now 
 cutting timber right along there, and for props for mines. Some 
 of the props are three or four feet long and some are seven or eight 
 feet long. They use them to hold up the roof where they are dig- 
 ging coal. They are cutting these props every day. 
 
1002 
 
 THE STATE OF KANSAS VS. 
 
 3700 Jesse F. McDonald, Denver, Colorado. 
 
 Direct examination. 
 
 By Mr. Hayt: 
 
 I am forty-seven years of age and reside at Leadville, Colorado, 
 and am engaged in the mining business. I was a civil and mining 
 engineer, and followed that business up to 1889. I have lived in 
 Leadville for twenty-six years. Since that tiine I have been min- 
 ing. I atn at present lieutenant governor of the State of Colorado. 
 In pursuing my profession I was over the drainage area near the 
 head waters of the Arkansas river a great deal, principally in the 
 vicinity of Leadville, which is right at the head waters of the Arkan- 
 sas river, and in fact all through the mountain sections within a 
 radius of twenty or tlii rty miles in every direction from Lead- 
 
 3701 ville. Leadville is situated about ten miles from the very 
 head of the Arkansas river. The latter has three main 
 
 branches right in the vicinity of Leadville — the main stream, the 
 Tennessee fork, and the Lake fork — and a good many other streams. 
 These streams rise from ten to twelve miles from Leadville in the 
 main range of the Rocky mountains. 
 
 I have noticed the snow fall in this vicinity for the last twenty- 
 five years, and the snow fall for the last five years, since 1900, has 
 been very much less than for the five years immediately pre- 
 
 3702 ceding the winter of 1900-1901. The decrease is very much 
 over one-half. The snow fall for the last five years has been 
 
 but little if any over half of what it was for the first twenty years I 
 was there. When I first located there in 1879 the mountains were 
 very well timbered, but it has been almost entirely cut off since that 
 time for lumber and mining purposes, in fact there is no timber left 
 in that vicinity except some very small timber that has grown up 
 within the last few years and that is too small to be of any value. 
 And in addition, there has been quite a large amount of this timber 
 destroyed by fires, and these fires are attributable to several causes. 
 Sometimes the} 7 are from camps and sometimes from locomotives. 
 Of course the timber being cut has left underbrush and left the tops 
 and refuse, and this makes it very bad for fires. They would spread 
 and sometimes cover a good many miles of country. 
 
 C ross-ex a m i nat i on . 
 
 By Mr. Ashbaugh : 
 
 3703 I base my judgment as to the decrease in the snow fall 
 upon one thing — that I have been living right there and have 
 
 noticed it, and have always kept a dairy, which runs back eighteen 
 or twenty years. I don’t say exactly that my diary shows the snow 
 fall falling off fifty per cent in the last four years. I should say 
 that the snow fall has been but little more than half. The year 
 
THE STATE OF COLORADO ET AL 
 
 1003 
 
 1900 or the year before that, 1899, was approximately the turning 
 point. I don't know whether my diary corresponds with the 
 
 3704 general weather reports in this State or not. I have never ex- 
 amined them, and have no information from the weather re- 
 ports whatever. If the weather report- showed there had been no fall- 
 ing off in the snow fall, it would still be my opinion that there has been 
 such falling off, regardless of such reports. My observations have ex- 
 tended principally in the vicinity of Leadville, twenty or thirty miles 
 each way. My knowledge has not been so very intimate as to the snow 
 
 fall for thirty miles in each direction from Leadville. Mv 
 
 3705 home was there, and I have been mining a good deal. I 
 don’t know how to account for this falling off in the snowfall 
 
 since the years 1899. I simply know that there has been less snow 
 fall. The denuding of the forests may have had something to do 
 with it. I don’t know. That is largely theory, perhaps. It is the 
 general opinion that the denuding of the forests has had an effect 
 upon the snow fall, but I don’t know. As I said, that is 
 
 3706 largely theory. The snow fall for the five years succeeding 
 1899 would be a little more than half when compared with 
 
 the snow fall during the five years succeeding 1890. The snow fall 
 for the five years succeeding 1889 has been less than the snow fall 
 for the five years prior to 1890 and probably about the same as com- 
 pared with the five years succeeding 1890. There was no particular 
 change in the amount of snow fall from 1885 to 1895 that I remem- 
 ber of. From 1879 and for several years after that we had quite heavy 
 snow falls, and it has been less since then, and particularly 
 during the last five years. I know that during the winter of 1879 
 and for several succeeding years we had quite heavy snow 
 
 3707 falls. This may possibly have lasted for ten years. The 
 amount of snow fall for the five years since 1900 is about 
 
 one-half of the snow fall during the ’80’s. I didn’t say that the 
 denuding of the forests had anything to do with the snow fall. I 
 simply said I didn’t offer any opinion. The denuding of the forests 
 has some effect as to the time and rapidity with which the snow 
 melts and runs off. Snow does melt more quickly in the sunshine 
 than in the shade of a free. Tae elevation of Leadville is about 
 10,000 feet. The denuding of the forests began in the summer of 
 1879. There have been teamsters employed hauling the mining 
 
 timber into Leadville up to within the last two or three 
 
 3708 years. This denuding of the forests extends back perhaps 
 
 from fifteen to thirty miles. The timber is pretty well 
 
 cleared off now within thirty miles of Leadville; that is, all the 
 timber that is accessible. The fires have interfered in a great many 
 instances. I couldn’t say as to exactly what years. There have not 
 been very many within the last two or three years, because it is 
 pretty thoroughly burned off. 
 
1004 
 
 THE STATE OF KANSAS Vs. 
 
 Examination by Mr. Campbell : 
 
 They have been cutting timber up there of less than eight inches 
 in diameter. There is scarcely any left of that size. They have 
 cut about all there is. A great deal of the timber that was cut 
 there in the early days was burned for charcoal. 
 
 3710 Daniel L. Taylor, Denver, Colorado. 
 
 Direct examination. 
 
 By Mr. Rogers : 
 
 I live at Trinidad, Las Animas county, Colorado, and have lived 
 there permanently since 18(35, and a part of the summer of 1862. 
 I have been county judge; I was in the territorial legislature once; 
 I was in the State senate in 1876 once, and I have been county 
 treasurer at two different times. 
 
 I am somewhat familiar with the Arkansas river in western 
 Kansas and eastern Colorado. I travelled up that country 
 
 3711 in 1859, striking it at what we used to call Great Bend. I 
 was footing it pretty nearly all the way. I had a mule and 
 
 a cart. I was coming to the Pike’s Peak gold fields. And after 
 striking the river we were all the way on the river. It must have 
 been near the 20th of April when we struck the river, and the 
 reason I remember the time so well, it was the day I was twenty- 
 one years old. I should say it took me about fifteen days to get to 
 Great Bend. We left the river at Pueblo. We travelled, I think, 
 possibly twenty or twenty-five miles a day between Great Bend and 
 there, and so it might have been along the first of May when we 
 got to Pueblo. 
 
 3712 In travelling along the river I remember one particular 
 circumstance, and that is about all I can remember about it. 
 
 Coming up the river at what I think was Bent’s new fort, about 
 where Port Lyon is now, it might have been a little before we got 
 there, some one remarked “Across the river, that is New Mexico.” 
 And I said “ What river? I don’t see any river.” Well, they said 
 the river was dry now, but right across there it was New Mexico. I 
 remember that and then I remember once or twice where we camped 
 below, I can’t say how far, the river was very low. There were no 
 towns or anything that I could identify the places where we stopped. 
 I didn’t see anything for seventy-five miles this side of Leavenworth. 
 That is about the only town there was on the river. We struck the 
 old Santa Fe trail up there in Kansas somewhere. 
 
 I was next on the river in 1862. I came from Fort 
 
 3713 Leavenworth up as far as Bent’s old fort. In 1862 we struck 
 it again at the same place, at what we called the Big Bend, 
 
 and I think this was along about the last of July. I was coming 
 out with some wagons that belonged to Irvin & Jackman. They 
 
THE STATE OP COLORADO ET AL. 
 
 1005 
 
 had the Government contract for freighting across the plains to New 
 Mexico. We would travel possibly fifteen to twenty miles a day, 
 and would camp at noon. This was about the way we travelled in 
 1859. There were some places along the river where it was very 
 low. By that I mean there were places where it hardly ran. You 
 could just see a little stream. I think we were possibty twenty days 
 coming up the river at that time. If I remember rightly, 
 2714 when we got farther up there was a little more water, and I 
 do remember that we had some very hard rains after we struck 
 Fort Lyon. It rained all the way across into Fort Union, New Mex- 
 ico. I remember these rains very well because I had to stand guard 
 over the cattle every third night. In the spring of 1863 I went down 
 the river again. I think I struck it possibly in the latter part of April 
 at Bent’s old fort and went on down. Maybe we travelled along three 
 hundred and fifty miles. I don’t remember much about the river 
 when going down, but I do when we came back. I noticed in one 
 or two places at that time the river was very low. We crossed it 
 at what was called the Cimarron crossing, and that is as far as I 
 came up the river that year, and it was low there then. I know the 
 boys in there pulled their boots off. And when the river was up 
 whenever we would cross it they would always pull off their boots, 
 roll up their pants and drive their teams across, but that year, at 
 that time, I noticed they didn’t pull off their boots. How low it 
 was I couldn’t say, but I know it was low. In 1865 I was again on 
 the river. We struck it at Bent’s old fort. That was going down, 
 and as near as I can remember it must have been along about the 
 last of April or first of May. It must have been about the 20th, 
 as that is where we first heard of the assassination of President Lin- 
 coln, right there at Bent’s old fort, and there the river was 
 
 3716 very low. We came back in July. I spent the Fourth 
 around Kansas City. And there was one place I remember 
 
 distinctly, that was below the Kansas line, the river was nearly dry, 
 but I don’t remember as to the general condition of dryness coming 
 along the river then. On the return trip in 1865 Senator Elkins 
 was with us. He had been down to Missouri and was married and 
 was coming out and bringing his wife. He had located in Santa 
 Fe, and the way we came to be together, the Indians were so bad 
 that year that we had to travel from one fort to another and we had 
 an escort and we had to travel slowly with the trains. 
 
 I went down the river again with my wagons in 1866, and came 
 back on the stage coach, and I remember one incident well 
 
 3717 on that trip. We went out to kill some buffaloes one morn- 
 ing, on the trip going down. I was with my wagon and there 
 
 were three of us on horse back. I had a man with me who had a 
 horse, and there was another man there with us. He had a horse. 
 I think this happened below Pawnee Rock. We started across the 
 river to kill some buffaloes very early in the morning, and where 
 we crossed the river it was just a stream of water running very shal- 
 low. It was not over three or four feet wide, I should say. We got 
 
1006 
 
 THE STATE OF KANSAS VS. 
 
 across the river* oil the hill, and the sun was just coming up. We 
 saw a body of men and we could see something glistening in the 
 sun, and of course thought it was Indians and that that was their 
 guns. We started back as hard as we could go, and we didn’t go 
 to the place that we crossed ; w’e struck for a train ; we could see 
 the train ; and we ran into a bank ; well, it wasn’t so high but what 
 we could jump our horses down. We didn’t feel like looking for 
 any good place to cross and we jumped into a little hole of water — 
 that is, a hole of water, I don’t say a little hole — and if I remember 
 rightly now, it was a hole of water that had settled up against the 
 bank, and if there was any running water there I surely did not see 
 it. I might not have been looking for running water about that 
 time. That was below Pawnee fork. 
 
 3718 I think I saw the river again about 1867 or 1868, possibly. 
 I used to strike it above La Junta. I used to drive some 
 
 cattle I was raising to Denver, and this generally would be in the 
 spring, and then I would travel up the river until I got nearly to 
 Pueblo and then strike across to Denver. Now, that continued 
 from 1867 each year up to 1873. I did that every spring. I have 
 observed that the Arkansas river has a pretty good flow near the 
 mountains and a lessened flow as it gets away from the mountains. 
 I will state one thing more that I just happened to think of: From 
 1875 to 1882 I was on the Arkansas river a great deal between 
 Dodge City and Las Animas, handling cattle over that country. I 
 had my ranch south of the river and oftentimes our cattle would 
 scatter and I would be on the river. And then when I drove my 
 cattle to market I would drive them to Las Animas, and sometimes 
 I would strike the river farther below Las Animas and drive 
 
 3719 to Dodge. I did that for years. I have seen the river dry 
 as it gets along toward the line between Colorado and Kansas. 
 
 That is one of its characteristics. Of course there are times when it 
 is full. But I have seen it dry often. Now, if you would ask me 
 how many times, I don’t know that I could tell, but I have seen it 
 dry along the river there so that when you would drive your cattle 
 into the river they would run from one hole to another to get water. 
 We would drive to Dodge, gathering our cattle pretty early, say in 
 August, and usually drove in the fall, but sometimes we would 
 drive in the spring, possibly in June and July. 
 
 3720 I now live on what is called the Purgatoire, and lam quite 
 familiar with the drainage of the Purgatoire river so as to 
 
 determine whether or not there has been any lessening in the 
 amount of run-off, and I have noticed at times — well, I know that 
 the water used to run more in the early days than it does 
 now. 1 don’t know that I could say when it did begin to lessen, 
 but it has been more marked in recent years. I don’t know 
 whether I could state positively in regard to the lakes or ponds 
 having dried up. There are no lakes or ponds along on the Purga- 
 toire in our section; I have noticed this out on the prairie down in 
 east of Trinidad. There is where I had my ranch for a good, many 
 
THE STATE OF COLORADO ET AL. 
 
 1007 
 
 years. I noticed when I first went down there there was more water 
 in the lakes and ponds than in after years, but right around Trini- 
 dad I don’t know that we have any of them; and I couldn’t say 
 that I have noticed any change in the mountain snow fall, because 
 I don’t hardly ever go to the mountains. 1 live about forty miles 
 from the range. 
 
 Cross-examination. 
 
 By Mr. Ashbaugh : 
 
 I came up the Arkansas river in 1859 and went down the Platte 
 river that same year, striking the Arkansas river at Great 
 
 3721 Bend. There was one place it was dry, and there were plenty 
 of places where it had, water in it. I think we had plenty of 
 
 water for our stock and cooking purposes all the way up. We did 
 have; I know that. There was running water in it. It is pretty 
 hard to say how deep; possibly something like a foot. 
 
 I don’t remember how the water was in the Platte river in 1859 
 when I went down. I think when I went down the Platte we had 
 plenty of water in the Platte and I wouldn’t notice it. 
 
 In 1863 we crossed the river at Cimarron crossing, when 
 
 3722 the men didn’t need to take their boots off. At other times 
 they might there at the crossing have had to take their boots 
 
 off and roll up their pants, as they usually did. Oh yes, I have 
 crossed the river when the water would have gone over the boot- 
 tops. I crossed it at Bent’s old fort when it would be over the boot- 
 tops. I had no occasion to cross it down in Kansas when I was with 
 the train. At Cimarron crossing is the only place I crossed the river 
 in Kansas with the train. At other times and places there 
 
 3723 was considerable flowing water in it. April is not the month 
 when there is the most flowing water in the river. The 
 
 spring rains have not begun to fall and the snow has not then be- 
 gun to melt in the mountains. The water usually begins to rise 
 about May or June, and then for a month or two there is more water 
 than in April, and after the rains for the summer are practically 
 over and the snow is melted in the mountains the river goes down 
 again somewhat. The height of the river at these seasons depends 
 upon the amount of snow in the mountains the winter before and 
 the amount of rain during that summer. I couldn’t tell you 
 
 3724 how it is that there is less water in the river in Kansas than 
 in Colorado at the same time, unless it is that it went into 
 
 sand. The conditions are such that the water would go into the 
 sand, and that condition extends out under the banks and back from 
 the river. I don’t remember of ever digging down in the river bed 
 to get water. 
 
 I think the flow in some of the streams has lessened in later years, 
 and I particularly refer to the Purgatoire. I am not familiar with 
 other streams. 
 
1008 
 
 THE STATE OF KANSAS VS. 
 
 3726 Joseph K. Kincaid, Denver, Colorado. 
 
 Direct examination. 
 
 Bv Mr. Hayt : 
 
 I am fifty-two years of age, and reside in La Veta, Huerfano 
 county, Colorado, and am engaged as a merchant and in farming 
 and stock raising. I am located about twelve miles from the sum- 
 mit of a portion of the mountains, say Abeyta mountain, where the 
 road crosses. I came to Huerfano county in 1874 and located be- 
 tween where La Veta is now and Walsenburg and about five or six 
 miles from where I am now located. At that time I was kind 
 
 3727 of tramping around. I located there and went farming and 
 trading. The first year I farmed, I believe, some, and the 
 
 next year I freighted some. I believe it was from Pueblo across the 
 valley into New Mexico. I have a stock ranch at the present time 
 near the summit of ihe mountains above La Veta, on what is known 
 as the Abeyta. This is a tributary of theCucharas. I have been in 
 the cattle business more or less since 1874 or 1875. Perhaps in the 
 latter year I owned the first cattle. And my cattle range lias been 
 largely in Huerfano county, extending around on the various trib- 
 utaries — the Santa Clara, Bear creek, the Wahatova, the North 
 Abeyta, South Abeyta, Middle creek and Oak creek. Those are 
 little tributaries of the Cucharas. My business did not cause me to 
 go frequently to the head waters of the Arkansas river but occa- 
 sionally. 
 
 I have been on the head waters of the Huerfano. I have spent 
 considerable time and have gone very often to the different localities 
 of which I have spoken. I was riding after cattle a considerable 
 part of my time, looking after them at the ranges and at the 
 
 3728 water holes of those various little streams. The matter of 
 running water and standing water for stock was a matter of 
 
 interest to me. It is a matter that every stockman in this country 
 pays more or less attention to. 
 
 In referring to my freighting between Pueblo and New Mexico 
 in 1874, I mean by “across the range” across this Abeyta moun- 
 tain into the valley of the Del Norte, Saguache and Conejos and as 
 far as Tierra Amarilla in New Mexico. We went over the Abeyta 
 pass; that is, the Abeyta creek, one of the tributaries of the Cu- 
 charas. 
 
 The snow in those earlier da} r s in the mountains during the win- 
 ter and spring months was pretty bad, very bad in the spring. It 
 was pretty deep. I don’t know how many feet, though. Of course 
 we would cross over it lots of times and go on top of it. It 
 
 3729 would get hard. It would be very deep in places. There 
 were times when we really couldn’t cross it. The Denver & 
 
 Rio Grande railroad crossed the La Veta pass in 1877, and it runs 
 through my ranch below La Veta, and 1 have known times when 
 
THft StAtlC OF COtQRADO ET At. 
 
 1000 
 
 they were unable to operate there over the mountains by reason of 
 heavy snow fall. I know when they couldn’t even pass through 
 my ranch between Walsenburg and La Veta for perhaps a week or 
 ten days. The snow would be deep during those times. There 
 was a little cut there and it would be eight or ten feet deep drifted 
 in, and on a level perhaps eighteen inches to two feet. In the last 
 few years this snow has been a great deal less, according to my ob- 
 servation. I don’t think it has been any more than half — hardly 
 half — since the winter of 1901. This applies to the head waters of 
 these various little tributaries of the Cucharas river. The 
 
 3730 lack of snow fall has caused the water supply to be very short. 
 There are quite a number of little lakes that of late years 
 
 have been short of water — have gone dry — and those little streams, 
 Indian creek and the Abeytas and the Wahatoya, have been dr} 7 . 
 The fact is that in some of those years they have not run water down 
 at any time of the year. They rise in the foot hills of the moun- 
 tains, the Spanish peaks, and the various ranges. They spread out 
 like your hand, entering into the Cucharas within fifteen or twenty 
 miles from La Veta, and my observation is that there has 
 
 3731 been very little water. I think there was more water in the 
 earlier periods. They ran a good deal of the time earlier in the 
 
 fall during the ’70’s and early ’80’s. They ran in the spring, but laterin 
 the fall they would probably go dry or at least it would be in holes. And 
 since 1900 in some of those years they have never even run at all, 
 that is, not even running into the Cucharas. They were entirely 
 dry. The water supply of the Cucharas of late years, since 1900, 
 has not been nearly as much, according to my judgment. I don’t 
 believe there has been much over one-half as much water. For 
 several years there has been no rise at all in the spring. It never 
 got muddy nor milky last year nor the year before. I lived right 
 on it. In the earlier years there was a heap of water. A great 
 many years it was out of the banks and overflowed. 
 
 3732 There has not been as much timber by a good deal on the 
 head waters of these streams now as there was in the earlier 
 
 years. Before any w r as cut there was a good deal of timber there. 
 None had been used at all when I first went there. It has not all 
 been cut off now, but a good deal of it, in the lower foot hills par- 
 ticularly. There have been some fires in the mountains that have 
 destroyed a good deal of it as well, and I think the cattle and sheep 
 have eaten and destroyed a good deal of the underbrush and small 
 timber, especially the sheep. 
 
 Cross-examination. 
 
 By Mr. Ashbaugh : 
 
 The snow fall in the years 1901, 1902, 1903 and 1904 has 
 
 3733 been very much less than in prior years. The snow fall for 
 these four years would be just about one-half of what it was 
 
 for the years succeeding 1890, and also about one-half of the snow 
 64 — 7 
 
ioio 
 
 TtfE State Ok Kansas VS. 
 
 fall for the four years prior to 1890. The snow fall was fairly uni- 
 form until about 1900 or within a year or so of what, and after 1900 
 it has apparently been less for the four years. 
 
 There has been a good deal of timber cut off and burned off. I 
 hardly know how much, but 1 should guess it would be something 
 like one-fourth or one-fifth or something like that, taking the 
 
 3734 whole range into consideration. I think the cutting off of 
 the timber has had something to do only with the melting 
 
 and running off of the snow and water. I hardly think the cutting 
 of the timber would have anything to do with the amount of snow 
 which would originally fall each winter, but affects only the time at 
 which it would melt in the spring and run off. Because of the sun- 
 light and the wind and the rain, the snow melts more quickly and 
 earlier and runs off more rapidly m those parts of the range where 
 the timber has been cut off than in those parts where the timber is 
 standing. 
 
 3735 S. J. Capps, Denver, Colorado. 
 
 Direct examination. 
 
 By Mr. Hayt: 
 
 I have resided in Huerfano county, Colorado, thirty-two years 
 last New Year day, and have lived there continuously since then. 
 My ranch is about seven or eight miles from the foot of the east peak 
 of the Spanish peaks. I have lived on two or three different 
 ranches on the same stream, but always on that stream. In 1881 
 and 1882 I lived within a mile of the foot of the peak. 
 
 I was on the Arkansas river in the fall of 1870. I was holding a 
 herd of beef cattle for Mr. Reef over on the Kansas Pacific, and a 
 bunch of them got away and drifted over to the Arkansas river 
 before we could catch them, and it took us nearly two months be- 
 fore we got them all back. During those two months I was 
 
 3736 on the river from about fifteen or twenty miles above Fort 
 Lyon to thirty or forty or even fifty miles below it, and my 
 
 recollection is that there was no running water in it at that time. 
 There were holes of water sometimes extending quite a distance, 
 and then again there would be quite a distance where there would 
 be no water. A chain of pools sometimes would extend quite a 
 little piece, and then again there would be a dry place where there 
 was a sand bar and the water there sank and came out farther 
 down. But often we travelled quite a distance, for a mile or two, 
 without any water. That is my recollection. Of course I didn’t 
 pay much attention to that, only I know we had places where there 
 was no water. I can still remember seeing it in that wa} r . 
 
 I didn’t come back to the Arkansas river again only as I crossed 
 it at Pueblo until the fall round-up of 1877. I went down 
 
 3737 there on a beef round up in that fall. I think that was along 
 about the first of September, and it took us twenty-five or 
 
The state of Colorado rt al 
 
 1011 
 
 thirty days to work the Arkansas river out, or nearly a month. I 
 shouldn’t think there was much difference in the amount of water 
 in the river in 1877 from what there was in 1870. There was still 
 some water there, but not a continuous stream. There were 
 stretches where the river bed was entirely dry. We went to Las 
 Animas and up nearly to Rocky Ford that year. There was a 
 little more water up that way than there was down east. I again 
 went back the second year after that on the round-up in 1879. That 
 was the fall round-up. I think I joined the round-up in 1879 about 
 a day’s travel above Las Animas, and I didn’t go to Las Animas 
 that year, if I remember right. I worked back up to Rocky 
 
 3738 Ford. I didn’t go up into Pueblo again. We were down 
 there about the same length of time, and my recollection is 
 
 now that there was even less water there then than there had been 
 the other years. I know we couldn’t hold a big day herd of cattle 
 that year at all. A day herd were the cattle that we rounded-up 
 and cut out, too old to take home, and the reason we couldn’t hold 
 such a herd there was because there wasn’t water enough to keep a 
 a big herd of cattle together. When you turn a big herd of cattle 
 onto a watering place lots of them would not get into it at all. And 
 we had a good deal of trouble with the horse herd too. It would 
 be necessary for us to string out these herds. That is my recollec- 
 tion. We had no difficulty in getting water for camping purposes. 
 The mess wagons would go ahead and keep the stock off from where 
 we made our camps, so I think there was always sufficient 
 
 3739 for that. 
 
 When I first located on Santa Clara creek my ranch was 
 about three miles above and about half way between where I live 
 now and where I lived in 1880, and at that time that stream ran 
 nearly all the year. There were quite a number of good springs on 
 it. There were only two ditches out of that creek when I first went 
 there, but they had plenty of water, and in 1874 I helped to take 
 out a ditch on this place that I located there and we had more water 
 than all the ditches could use for several years. There was a year 
 or two as we went along when the ditches were all short. For 
 instance, in 1880 we had no irrigating water to speak of, and then in 
 1883 we had little or no irrigating water. Up until 1899, from then 
 we had good seasons, but 1899 was again a very short year. 
 
 3740 Then the spring of 1900 was a good spring. We had lots of 
 snow, but it didn’t come until late in the spring. It didn’t 
 
 last long in the ditches, but it still gave us enough to soak our 
 alfalfa and meadows up. But from that time we have had very 
 little irrigating water. Two years, 1902 and 1903, the water from 
 the snow that melted in the Spanish peaks never went below mv 
 ranch. It never ran below my ranch during those two seasons. 
 That was very unusual, indeed. It had never happened before since 
 I have had the ditches. During the years I have lived there in the 
 stock growing business I have not been much on the Cucharas. 
 My stock only ran from Bear creek on the west or northwest to the 
 
101S! 
 
 I'M® Si 1 AT® O® KANSAS V§. 
 
 Apishipa on the other side. Bear creek is the first one going 
 south, then the Story creek, a branch of the Santa Clara. 
 There is the branch that Walter Arnold lives on. We call that 
 that Arnold creek, and mine is called the Capps creek, and then 
 there is the Spring canon. There is no irrigation on that, but there 
 are a number of good springs and when there is plenty of snow some 
 water runs down there, but there are no irrigable ranches on that 
 stream. The next one is the Mauveritis canon. That is a 
 
 3741 branch that runs into the Apishipa about four miles above 
 Del Agua. And the next is the Trujillo creek. They make 
 
 their rise up in the mountains, Bear creek being as high as timber 
 line on the east peak. It flows into the Cucharas just below Wal- 
 senburg and is about twenty-five or thirty miles long. Bear creek 
 takes its rise about four miles from the foot of the mountain. That 
 is on the northeast side of the Spanish peak. 
 
 3742 I have often crossed the Apishipa, although I have not 
 been much at the head of it at Del Agua, and of late years I 
 
 have often crossed when it was dry, since 1900, when it was com- 
 pletely dry. There have been some more rains in the last few years 
 during the summer than we formerly had, but still there hasn’t 
 been to exceed fifty to seventy-five per cent, of a full crop in this 
 vicinity since 1900. During the earlier years, in 1883 there was 
 over three hundred tons of hay cut from the Canon ranch, and in 
 the last few years I have done the baling of the hay on that ranch 
 and there hasn’t been over seventy-five tons of hay cut on the whole 
 ranch during the whole of the years since 1900, and last year 
 
 3743 there was not a mowing machine run on the ranch. By 
 seventy-five tons I mean for the entire period since 1900. 
 
 A number of wells in this vicinity have gone diy. I sank a well 
 myself in 1884 where lam now living and for about sixteen or sev- 
 enteen years there was no better well in Huerfano county. We had 
 plenty of water for the house and for irrigating a little garden spot 
 and for watering our horses, which we did there a great deal, but in 
 1900 it began to go dry and I took the rod out of it and sank it 
 down to solid rock so that we couldn’t go any farther without drill- 
 ing. But it kept on going dry until the past two years we have had 
 to leave it entirely and go farther down, at least a hundred yards 
 from the house, and sink for water right close to the bed of the creek, 
 and we have never used that well since. And a neighbor of mine 
 had a well that was sunk before mine was. He lives about two 
 miles from me on the next branch of the Santa Clara, and for years 
 they couldn’t get the water out of their well to clean it out. A few 
 years ago it commenced to go dry and they were getting less water so 
 that the pump or bucket would rile the water and they finally couldn’t 
 get enough so that they had to go farther away from the house and 
 sink, and their well is now in the same condition as mine. 
 
 3744 Those are the only two wells I am familiar with. But on Bear 
 creek, on the McAllister ranch, they have cut as high as 
 
 three hundred tons of hay and alfalfa on that ranch, and in the past 
 
THK STATE OF OOLOKADO KT AL. 
 
 1013 
 
 few years it has not gone over one hundred to one hundred and 
 twenty-five tons, and it is called one of the best ranches in Huerfano 
 county, and they have the first water right on that stream. 
 
 When I lived up at the base of the Spanish peaks I could count 
 thirty-nine lakes in sight of my house during 1880 and 1881. My 
 wife and I and the visitors and neighbors have counted them re- 
 peatedly. Now there is only one with any water in it and that is a 
 reservoir that I have built since that time. A few years ago the 
 other thirty-eight have all gone dry. There has been some water 
 in them since 1900 when there was a heavy rain. But the time I 
 speak of, years ago, they would hold the water and it would stay 
 there for months at a time without any more seeming to come to 
 them, but now they will fill up but it dries or evaporates or seeps 
 out in a very short time, showing that the ground — that is my 
 theory of it — is very much drier beneath than it used to be, so that 
 the water seeps away a great deal faster. 
 
 3745 There has been a great deal of timber cut off the Spanish 
 peaks. There was some very nice timber there when I first 
 
 went there, and the undergrowth was very thick under the trees. 
 That was the general condition from the foot of the mountains up, 
 and then down in the foot hills there was a great deal of cedar and 
 pinon and spots of pine. And the Four-mile country, we call it, 
 that is out in the foot hills about ten miles from the peak, there was 
 a fine body of timber there, but that is nearly all gone now. Prac- 
 tically, I might say it is all gone that is fit to use. 
 
 In that part of the country there have been saw mills, and 
 
 3746 then it has been used up for mining purposes. Of course it has 
 been taken out for local improvements on the ranches, but 
 
 that is only a very small part of what is taken. Then these big pine 
 trees are used for what are called caps in the mines. They are 
 sawed, I think. They are sixteen inches long, and then they are 
 split about six inches wide and about two inches thick and they are 
 put on top of the props. I am speaking of coal mines for which this 
 timber is cut. And in cutting this timber they are always leaving 
 the tops of the trees. Of course that makes the fire that much 
 fiercer. The fire kills all the trees where it goes and it is impossible 
 to put it out. I think about five or six years ago this coming spring 
 the fire broke out right at the stream I live on and burned 
 
 3747 from four to six hundred acres of timber. And that was high 
 enough up so that there hadn’t been much of that used at 
 
 that time. That is the only fire we have had for a number of years. 
 I am not positive whether that was five or six years ago. Yes, we 
 had fires before that, but not so bad. They were caused by hunters 
 and sheep herders and sometimes by the saw mill men. 
 
1014 
 
 THE STATE OF KANSAS VS. 
 
 Cross-examination. 
 
 By Mr. Ashbaugh : 
 
 During the year 1870 my observations on the Arkansas river 
 were confined to about forty miles on each side of Fort Lyon. 
 
 3748 I didn’t go down as far as to the Kansas line, so I know noth- 
 ing about the flow of the river through Kansas. The eastern 
 
 portion of the territory that I observed was drier than the western 
 portion. I suppose it was farther from the source of supply and 
 gradually decreased as it went down. Some of the water evaporated 
 and some sank into the sand. It gradually got less as it went down 
 from the source of supply — from the mountains. The water that we 
 observed in the lower holes must have been supplied from 
 
 3749 beneath the surface. These observations were made from 
 September on. I don’t remember of ever being on the river 
 
 in the spring season of the year. 
 
 As to the supply of water in the streams near my ranch prior to 
 the last three or four years, it was very good, with the exception of 
 the year 1880. I raised what we call a full crop every year from 
 1880 to 1893, and during those years my water supply was good. 
 With the exception of 1893, up to 1899 it was good again. We had 
 another stretch there of several years that were very good. We 
 raised full crops. With the exception of the years 1880 and 
 
 3750 1893 my water supply was good from 1880 to 1900. I think 
 I counted the thirty-nine lakes near my home the first time 
 
 in the fall of 1880. From 1881 down to 1893 we could still count 
 those thirty-nine lakes with water in them. Sometimes there would 
 be that many and sometimes a few less, but approximately 
 
 3751 that many. But on an average we could see the whole of 
 those thirty-nine lakes during that time, and with the excep- 
 tion of the year 1893 that continued down to 1899. After 1899 the 
 number that we could see with the usual amount of water in them 
 began to decrease. It decreased in the year 1900 and has been de- 
 creasing since that year. During the year 1900 until late in the 
 fall I don’t think there was a lake in sight from that ridge I spoke 
 of that had water in it. The heavy rains of 1904 did not fill these 
 lakes. It was not a rush of rain in our neighborhood. There was 
 a good deal of water fell, but it didn’t run off the surface. 
 
 I dug my well in 1884, and for sixteen years — that would 
 
 3752 be down to 1900 — there was plenty of water in it. This was 
 the same condition in other wells that we dug when there.. 
 
 There didn’t seem to be any general decrease of water down to the 
 year 1899, with the exception of the year 1893. If there had been 
 any perceptible falling off of water I think it would have shown in 
 that and other wells. Since 1901 this well and other wells have 
 been practically dry. So that the perceptible falling off in the 
 water began perhaps in the year 1900 and was very marked in 1901 
 and continued through 1902, 1903 and 1904. Since 1901 there has 
 
THE STATE OF COLORADO ET AL. 
 
 1015 
 
 been no water in that well, but prior to 1900 there was always water 
 in it. 
 
 I believe, myself, that the cutting of the timber affects the amount 
 of snow that falls in the winter. I believe the timber has a good 
 deal to do with the precipitation. I wish you to understand, how- 
 ever, that I couldn’t even tell why this might be true. The cutting 
 of this timber has been going on for eight or ten years, but 
 
 3753 not enough was cut off down to 1900 so that it seemed to 
 make a difference in the amount. I think the scarcity of 
 
 timber about 1900 had reached such a point as to affect the amount 
 of snow fall, but it certainly had not affected it prior to 1899. After 
 the timber is cut off there are some young pines growing up, but 
 over this burned space I speak of I don’t think there has any 
 
 3754 started up at all yet. I think this fire that I spoke of ran 
 over from four to six hundred acres. These lakes that I 
 
 spoke of are not fed by creeks or streams from which we draw our 
 water for irrigation. They are just out on the open and gather the 
 rain and snow water between the different streams. 
 
 3755 J. C. Paddock, Denver, Colorado. 
 
 Direct examination. 
 
 By Mr. Dawson : 
 
 I live four miles southwest of Leadville and have lived there 
 24 years next month. Most of that time I have been ranching. 
 For the last seven years I have been justice of the peace. I don’t 
 suppose there has been a year, hardly, since I have been up there 
 but what I have been to the sources of nearly all of the streams 
 that empty into the Arkansas river. We used to be hunting 
 after cattle a good deal, and I was volunteer weather observer there 
 for the Agricultural Department and I used to go up there to see what 
 the conditions were. I was volunteer weather observer for about 
 
 3756 ten years. I think I began in 1888 and I ceased doing that 
 in 1903. I made these reports to Mr. Bradenburg, the 
 
 weather observer for Colorado and Wyoming, at Denver. The 
 creeks and streams that go to make up the head waters of the 
 Arkansas river are Lake, Half Moon, Tennesssee, the Arkansas 
 proper, Evans, California, Iowa and Empire creeks; and the eleva- 
 tions at the head are approximately from eleven to twelve thousand 
 feet. My ranch is about 9500 feet, and Leadville is 10,042 feet. I 
 think the snow fall on the head waters of the Arkansas river and 
 its tributaries in the locality which I have described is fifty 
 per cent, less in the last few years than it was in an equal 
 
 3757 number of years, from my experience, and this is based 
 on actual observation and measurements, as I took measure- 
 ments from day to day as the snow fell and recorded the result. I 
 think this decrease has been observable up there {since 1895 
 
1016 
 
 THE STATH3 OF KANSAS VS. 
 
 although iii the winter of 1898 we had a phenomenal fall of snow. 
 The snow in that year measured, to the best of my recollection, 37 
 feet and 8 inches. That was the winter of 1897-8. It might have 
 been in the winter of 1898-9 ; but with the exception of that winter 
 1 have noticed this falling off of the snow since about 1895. Taking 
 it from 1899 to the present time, I should say that the snow fall is 
 probably less than fifty per cent, of what it was in the earlier 
 
 3758 years when I knew the country. As to the precipitation as 
 a whole, including rains, the year 1903 was unusually dry. 
 
 The precipitation was very deficient that year; but with that 
 exception I think the average falling off in precipitation for the last 
 four or five years has been probably about twenty-five per cent, 
 from that of the earlier years. That would be my judgment. The 
 falling off in the snow fall has been greater than the falling off in 
 the total precipitation during this time. When I went there there 
 was probably fifty per cent, more timber standing in this vicinity, 
 that is, green timber, than there is now, but in 1878 and 1879 and 
 a large part of 1880 there were enormous quantities of timber 
 burned into charcoal for the use of the smelters there. But since 
 the railroad came in and furnished coke there has not been that use 
 of the timber for charcoal as before, in fact its use has entirely 
 ceased now with the smelters. A great deal, of course, has also 
 been used for lumber and for mining timbers. In my judgment 
 there is not now more than five per cent, of the original timber 
 standing, that is, of the timber that was standing twenty-five 
 years ago, within, I will say, twenty-five miles of Lead- 
 
 3759 ville. And this ninety -five per cent, has been destroyed 
 either by cutting or burning off. In fact I don’t know 
 
 of anv good timber that is now left standing in Lake county. That 
 timber was what we call white pine — a dense, heavy growth of tim- 
 ber, that is, evergreen. And in the heavy pine timber it is impos- 
 sible for the sun to penetrate the forest or reach the ground, and this 
 when standing would conserve the snow supply until a very 
 
 3760 late period in the season. There is a little pitch timber that 
 seems to be beyond the reach of human hands to get with any 
 
 profit, and so it has been allowed to stay there, and I have seen snow 
 in that timber in August. I passed along it about the 20th of Au- 
 gust and there were large patches of snow about two feet deep and as 
 solid as ice, so firm that we could not make any impression on it, 
 while on the other portions of the country where the timber was de- 
 nuded the snow had been gone for months. I should think there 
 was a difference of from three to three and a half months from the 
 time of the snow going off where there is no timber and where there 
 is timber. Except in the very deepest draws and the most shady 
 places the snow is all gone by the first of June, and in former years 
 when there was plenty of timber, and especially in the early 
 
 3761 ’80’s, we found frequently little patches of snow in the dense 
 timber at the head of that creek in August. I think the- 
 
 small brush and undergrowth aud some kinds of grass have been. 
 
THE STATE OF CO I. OK A DO ET AL. 
 
 1017 
 
 almost exterminated, and for this there are two causes. One is the 
 destruction of the timber which protected that undergrowth, and the 
 other one is that for twenty years or oyer there have been about two 
 hundred thousand head of sheep herded on us every year in our 
 county, and sheep are very destructive of the grass as well as of the 
 undergrowth. They eat it off closely, and destroy the tender under- 
 growth b\ r browsing on it. The killing of this undergrowth 
 
 3762 and grass accelerates the disappearance of the snow and also 
 furnishes very much less hindrance for the run-off from rain- 
 fall. As evidence of the violence with which the rains run off now 
 more than formerly, there are channels that the water has washed 
 down the mountain sides and foot hills near the base of the moun- 
 tains. I have also noticed a falling off in the amount of water car- 
 ried by the upper Arkansas and its tributaries, as there is a percep- 
 tible diminution of the flow in all of these streams from Granite up. 
 That is about eighteen miles below Leadville, down the river. 
 
 The extent of territory drained by the Arkansas river and its 
 tributaries in this vicinity is comparatively small, because we are 
 pretty well up. The bed of the Arkansas river immediately below 
 Leadville is 9,500 feet in elevation and we do not have to go 
 
 3763 very far to the timber line. When we get above timber line 
 the peaks and sharp ridges are about the only source of pres- 
 ervation of the snow fall now, because the wind blows the snow 
 into the gulches and deep ravines, and were it not for that I am 
 afraid we would not have anv water at all. When the timber was 
 there a great deal of snow was blown off the peaks and high divides 
 into it, and that stopped the snow that was moving on account of 
 the wind. 
 
 Cross-examination. 
 
 By Mr. Ashbaugh : 
 
 The general observations to which I have been testifying extend 
 back to about 1880. I would say for the last four years the 
 
 3764 average snow fall has been not over fifty per cent, of what it 
 averaged from 1880 to 1899, that is, leaving out the phenom- 
 enal snow fall of the winter of 1898-9. There did not seem to be 
 any perceptible falling off prior to the year 1895, and only a slight 
 
 falling off down to 1900, and from that on a greater falling 
 
 3765 off. 1 don’t know that this failing off in the snow fall has 
 been a matter of public advertisement and that it has been 
 
 advertised as one of the advantages of Colorado. 
 
 I think that the amount of water taken out of the ditches and 
 the enlargement of ditches increased very materially within the 
 last three or four years. In spite of that fact 1 think there 
 
 3766 has been a falling off of the snow fall. I presume we have 
 not let up any on the extending and digging of our ditches 
 
 because of this falling off in the snow fall. That is my opinion. I 
 
1018 
 
 THE STATE OF KANSAS VS. 
 
 think Mr. Brandenburg publishes a monthly statement of all re- 
 ports of volunteer observers throughout the State. 
 
 In speaking of the cutting of the timber on the drainage area of 
 the Arkansas river near Leadville, I think there is no timber left in 
 that vicinity that is worth cutting off that can be gotten. There 
 are a few little patches high up in some rugged spots in the moun- 
 tains that are still left, but they are insignificant. 
 
 There are a few good streams that come into the Arkansas river 
 below Granite, but the principal supply I should judge is from 
 3765 Lake county. I don’t know whether the records show that 
 there has been any diminution in the flow of the river at 
 Canon City during the last few years. If these records show no 
 diminution at Canon City I would have to say there had not been 
 much diminution at the sources of supply, I suppose. If the 
 amount of water that flows in the Arkansas river according to 
 measurements in our own State shows no appreciable falling off in 
 these years, it might possibly indicate that the amount of snow fall 
 was about uniform, but I think there are some sources of water 
 supply on the upper Arkansas that cut quite a figure in our 
 
 3566 country here, and that is the drainage from the mines. That 
 water never got into the Arkansas river before they began to 
 
 pump it. 
 
 If the amount of snow fall has ever been decreased and the supply 
 of water from the mines and other sources has increased, the amount 
 of water that would flow in the Arkansas river at Canon City might 
 possibly remain the same. The original source before these mines 
 were pumped was the snow fall and the rainfall. The loss to the 
 river which might have come from loss in snow fall might possibly 
 be supplied from other sources, and the flow of the river be 
 
 3567 accounted for in that way. The greater bulk of the snow is 
 melted b\ r the first of June. And in the latitude of Leadville 
 
 it would be practically gone by the middle of July. But higher up 
 toward timber line, where there are large bodies of timber, the snow 
 would last until probably the middle of August and maybe later. 
 The timber conserves the water. The snow melts slowly and enters 
 the ground and is practically taken up by the ground and 
 3768 seeps off and of course finds a lower level, but where the sun 
 exercises its unobstructed rays on the mountain sides the 
 water goes off rapidly and of course the stream rises rapidly, but it 
 soon passes away and is gone, so that the effect is that it melts earlier 
 and runs off more quickly. 
 
 Redirect examination. 
 
 By Mr. Dawson : 
 
 There are two particular mines here at Leadville that I know of 
 that are raising nine hundred gallons of water per minute. There 
 is the flow of the Yak tunnel, which penetrates nearly two miles 
 
THE STATE OF COLORADO ET AL. 
 
 1019 
 
 into the mountains. My judgment is that that stream is 
 3769 probably 100 to 150 miners’ inches of water per minute. 
 
 When I speak of miners’ inches I mean a stream of water 
 that will run through a square inch hole, under a pressure of four 
 inches a minute. These other plants I speak of are pumping about 
 nine hundred gallons each, and there are numerous others that I 
 don’t recall to mind. And all these go to feed the Arkansas river. 
 I should judge there are as much again in the aggregate. I should 
 think there was in the neighborhood of fourteen or fifteen cubic 
 feet per second of time going to feed the river. All of that. The 
 Yak tunnel is an enterprise that was begun, I believe, about seven 
 years ago, but it didn’t drain as much water as it does at the present 
 time, until they struck the workings of the Ibex mine. That was a 
 year ago last fall. 
 
 I have not attempted to enumerate all of these mines, but if all were 
 enumerated it would amount to quite a volume of water. 
 
 3771 J. 0. Albert, Denver, Colorado. 
 
 Direct examination. 
 
 By Mr. Dawson : 
 
 I am fifty-five years of age, and reside in Berthoud, Colorado. I 
 came to this State first in 1869 and located at Pueblo and remained 
 there up until 1900. For two years of that time I was in Kansas 
 back and forth, but still had my home there. I came from 
 
 3772 Pennsylvania to Kansas by way of St. Louis and Kansas 
 City. They were building the Kansas Pacific road to Den- 
 ver then and I came to the end of the track at Kit Carson, and from 
 there I went south to the Arkansas river and proceeded to Pueblo 
 from there, up the river. I think we struck the Arkansas river about 
 April 1st 1869, and I walked from there to Pueblo. I came across 
 with ox (earns going to New Mexico. I reached Pueblo about the 
 third or fourth of April. We landed at Bent’s fort on the river and 
 there was some water at that point at that time. I should think a 
 
 man could ford the stream there easily enough. There was 
 
 3773 perhaps a couple of feet of water. 
 
 Three years later I was down on the Arkansas river as far 
 as Coolidge. That was in August, 1872. And at that point there 
 was no stream at that time. At Lamar or a little above that there 
 was a little water. On that trip I was up and down the river look- 
 ing for cattle. I didn’t get across into Kansas at that time. I 
 didn’t go farther than the State line. Perhaps we were up and 
 down tlie river between there and east of Pueblo about three weeks 
 and held the cattle there at Rocky Ford. 
 
 3774 The next trip I made through that country was in 1879. 
 We were feeding some cattle and sheep in Haryey county, 
 
1020 
 
 THE STATE OF KANSAS VS. 
 
 Kansas, and I started from Pueblo with two thousand sheep on the 
 20th of August. We followed the river clear through to Halstead, 
 Kansas. There was water in the river down as far as Lamar, and 
 then we didn’t have any water to amount to anything. Once in a 
 while there was a pool of water or something like that, We had 
 quite a time after we left Lamar to get water for the sheep. We 
 kept very close to the river and when there was any water we 
 drove in and watered them. We crossed the river at Coolidge and 
 kept on the north side of the river as far down as Syracuse. There 
 we didn’t find any water at all and thought we would have to turn 
 back, but we kept going. At one time from the line to Syracuse, a 
 distance of perhaps thirty miles, we didn’t get any water at all. 
 After we got there we dropped into the river, or beyond there per- 
 haps three or four miles. We dropped right into the bed of the 
 river and knew if there was any water there we would catch 
 
 3775 it. We drove there three days without getting any. We 
 drove the sheep right in the bed of the river. There was tall 
 
 grass on the banks and of course we couldn’t drive the sheep unless 
 we got out on higher ground. We stayed right in the bed of the 
 river, and by “ milling” them around on the third day we got a 
 little water for the sheep. Their tramping in the sand, going around 
 and around, would pack it down until the water would rise where 
 they would travel. There was no running stream during the three 
 days we travelled. There was not even any water standing in 
 holes. We found no running stream until we got to the Paw- 
 nee. 
 
 3776 There were no ditches to my recollection at all unless it was 
 a very small one at that time taking water out of the river in 
 
 eastern Colorado or below Lamar. Perhaps just a few furrows 
 ploughed where the water was easily gotten out. 
 
 1 came back in the spring of 1880 on a train. As near as I can 
 tell, where the Santa Fe road was running close to the river there 
 was very little water, if any, along in that part of the country for 
 one hundred and fifty to two hundred miles. I was down there on 
 the river again in the fall of 1881. I held some cattle fifteen miles 
 below Pueblo. I was along the river there for three years. Not 
 taking care of the cattle every day, but I was down in that country 
 once or twice a month all along the river between that and Lamar. 
 I didn’t get down as far as Coolidge, but as far as Lamar there was 
 some little water in the river in those three years. It would get low 
 during the summer and fall during each of these years, and there 
 was always a little but not very much water. After say Sep- 
 
 3777 tember or along there there was some little water but not 
 very much. When I lived at Pueblo I was engaged most of 
 
 the time in the electrical business — the electric lighting and railway 
 business. I was interested in a plant there, and before that I was iu 
 the coal business, and trading, and during the years I have 
 
 3778 spoken of I was interested in stock some of the time. I am 
 not interested in any irrigation projects or in the use of water 
 
tHE STATE OP COLORADO ET AL 
 
 1021 
 
 from the Arkansas river or its tributaries at the present time. lain now 
 living in the northern partofthe Stateof Colorado, and have stock still 
 in the San Luis valley, but none east of the mountains. During the 
 time I lived in Pueblo I have noticed the times of flood or of excessively 
 high water. These come mostly in May and June when it would 
 rain through that country. Very heavy rain storms would some- 
 times occur along the base of the mountains on the tributaries of the 
 river in May and June and sometimes in July. I have seen the 
 river there half a mile wide and outside of its banks. These rises 
 come suddenly, from cloudbursts and heavy rains up the river 
 through that country. The character of the flow at Pueblo is very 
 low. I have crossed that river perhaps as many as ten times a day 
 for twenty-five years in matters connected with my business and for 
 the reason that the Arkansas river divides the town of Pueblo 
 
 3779 so that the business is on both sides of the river. 
 
 Cross-examination. 
 
 By Mr. Ashbaugh : 
 
 I struck the river in 1869 at Bent’s fort but didn’t see the river 
 east of that. Bent’s Fort was in the neighborhood of thirty-five or 
 forty miles east of Pueblo I think. It seems to me that Bent’s fort 
 was not above Rocky Ford. I may be mistaken, though. 
 
 3780 Yes, the river was fordable. You could cross it almost 
 anywhere. In 1872 I didn’t go east of Coolidge, nor did I 
 
 cross the river there. That was in August. In 1869 and 1872 I 
 was in Pueblo most of the time and didn’t see the river altogether 
 dry there. When I found the river dry at Coolidge in August, 1872, 
 there was water above that, and I supposed it had sunk in the sand, 
 as far as I could see, When we found the water by having the 
 sheep “ mill ” around in the river bed it came out of the 
 
 3781 sand, I suppose. It didn’t come from any rain storm or or any- 
 thing of that kind. I don’t think there was any timeduring my 
 
 observations along the river when you could not get water by dig- 
 ging down into the sand a few inches, and so far as I know that was 
 always true. The water that I described as being in the sand came 
 from the flowing water above, I should think. At least there 
 
 3782 were no local rains or showers to keep up that constant sup- 
 ply of water, and we found it in the bed of the river beneath 
 
 the sands through Kansas just the same whether there had been a 
 local rain there or not. At Pueblo I think there is more rain in 
 June than there would be at other months. That comes from 
 
 3783 rains and snows in the mountains, and hence always in- 
 creases (he amount of flow in the river to the extent of the 
 
 amount of the snow that was melting, and whether there were rain 
 storms or not at that time the water would be increased some. The 
 river bed has been straightened out at Pueblo in the last few years 
 and narrowed somewhat, and for half a mile or so built up on each 
 side with stone abutments. 
 
1022 
 
 THE STATIC OF KANSAS VS. 
 
 (At this point the State of Colorado rested temporarily, in accord- 
 ance with a stipulation entered into by and between the parties that 
 the Government would proceed with its testimony and after it had 
 submitted all the evidence it had the State of Colorado would there- 
 upon introduce further evidence.) 
 
 Testimony Introduced by the United States Government as Inter - 
 
 venor. 
 
 Denver, Colorado, January 21-23, 1905. 
 
 3785 Clarance T. Johnston, Cheyenne, Wyoming. 
 
 Direct examination. 
 
 By Mr. Campbell : 
 
 I am State engineer of Wyoming. I was assistant State engineer 
 of that State for four years and assistant in the office for six years, 
 and was assistant expert in charge of irrigation investigations for the 
 Department of Agriculture for four years. As State engineer of 
 Wyoming I had general supervision of the appropriation, distribu- 
 tion and division of the waters of the State. As assistant en- 
 
 3786 gineer my duties were in connection with the field survey, 
 the measurement of water and the office work, particularly 
 
 relating to the preparation of maps and the recording of applica- 
 tions for permits. My duties as State engineer and assistant re- 
 quired me to travel over the State of Wyoming investigating the 
 waters in the streams and the land capable of being irrigated. My 
 duties in connection with my position with the experiment station 
 of the Department of Agriculture related particularly to the duty 
 of water and its use on the different streams in the West. In the dis- 
 charge of my duties in this latter capacity it was necessary to make 
 extended visits and observations throughout what is known as the 
 arid region in the western part of the United States. I have been in 
 Kansas, Nebraska, Wyoming, Montana, Oregon, Washington, Idaho, 
 California, Arizona, New Mexico, Colorado, Texas and the western 
 portions of Oklahoma and Indian Territory. I was also in Arkansas 
 and Louisiana in connection with the irrigation of rice and similar 
 experiments. Three years ago the present winter — the winter 
 
 3787 of 1901-2 — I spent in Egypt. I was there for three months, 
 and was engaged in preparing a report of my investigations 
 
 there for nearly a year following my return. The report I made was 
 published in Bulletin No. 130 of the office of experiment stations. 
 All together I have had about sixteen } r ears in different kinds of 
 work connected with irrigation. 
 
 I have become as familiar with the lands in Wyoming as one can 
 from the records we have there in the office, which are very com- 
 plete. I would say there have been reclaimed from their arid state in 
 
^HE STATE OF COLORADO ET AL. 
 
 1023 
 
 Wyoming about 1,100,000 acres up to date, of a value of at least 
 $30 per acre. All the waters of the streams of Wyoming that are 
 capable of being applied to the reclamation of land have not 
 
 3788 been appropriated nor are they being used. In addition to 
 the land already reclaimed in Wyoming from its arid condi- 
 tion, I should say about four million acres could still be irrigated. 
 The total value of this land which can be irrigated would approxi- 
 mate probably $150,000,000, and including the population that is 
 directly and indirectly supported by such development, I think 
 between 800,000 and 1,000,000 people could be supported from it 
 ultimately. 
 
 I am familiar with the doctrine of riparian rights. I think it 
 would have been impossible to reclaim the lands in Wyoming which 
 have already been reclaimed if that doctrine were to prevail or had 
 prevailed, and the effect of such a doctrine upon the future de- 
 velopment of Wyoming would be to prevent such development 
 largely. 
 
 3789 I consider the arid region that portion of the United States 
 the eastern limit of which would be between the 99th and 
 
 100th meridian, and its western limit the Pacific ocean, its northern 
 limit the 49th parallel or the boundary between the United States 
 and Canada, and the southern limit the line between the United 
 States and Mexico. Of course there are isolated tracts in this area 
 that do not require irrigation. I do not believe the doctrine of ri- 
 parian rights is applicable to any country where irrigation is neces- 
 sary, because the doctrine of riparian rights gives the right to a 
 property owner whose property abuts on a stream and does not imply 
 beneficial use, consequently it enables those having riparian rights 
 to control the supply without using it. 
 
 I am familiar with the doctrine which is by some considered a 
 modification of the riparian rights doctrine, which prevails in Cali- 
 fornia, Oregon and Washington, and which has recently been in- 
 voked in Nebraska. I do not think such a doctrine is applicable 
 to the conditions prevailing in the arid region, and where the modi- 
 fication is made it seems to me it is in a way recognizing the doctrine 
 of appropriation as soon as the water is used. 
 
 3790 I am familiar with the objects and purposes of what is 
 known as the reclamation act passed by the United States 
 
 Congress on June 17, 1902. The application of the doctrine of ri- 
 parian rights would prevent irrigation development under that act 
 almost entirely. The application of the doctrine which prevails in 
 California and Nebraska would affect development largely in the 
 same way, probably depending on how much the doctrine is 
 modified. 
 
 I am familiar with the act of Congress known as the Carey act, 
 passed August 18th, 1894, and to be found in 27 U. S. Stats. 372, 
 422, sec. 4. Wyoming has accepted the provisions of that act, and 
 approximately, under it sixty thousand acres have been reclaimed 
 up to the present time. 500,000 acres are in process of reclamation 
 
1024 Tttfi STATE 0# KANSAS VS. 
 
 The doctrine of riparian rights if applied in Wyoming would almost 
 absolutely impair the value of this act. 
 
 3791 1 have made some study of the effect of irrigation upon 
 cultivated forestry. Forests can be successfully cultivated in 
 
 the arid region and particularly in Wyoming by irrigation, wher- 
 ever land can be irrigated. There is a necessity for the cultivation 
 of forests in this region, as with the growth of agriculture the de- 
 mand for timber must grow and the supply must be maintained. I 
 do not think forestry could be successfully developed in the arid 
 region without the aid of irrigation, except in regions properly 
 adapted to it, where the conditions of the soil are different or the 
 rainfall is greater than it is over the average of the western country. 
 The doctrine of riparian rights, if apptied, would undoubtedly limit 
 the development of forestry in the arid region. Probably ninety- 
 eight per cent, of the possible development. That of course is a 
 rough estimate. 
 
 3792 The following running streams in Wyoming have their 
 sources in Colorado: The Laramie, the North Platte, Sand 
 
 creek, and the Snake river, a tributary of the Green river. I know 
 that the citizens of Colorado are taking the waters from those streams 
 in that State and appropriating them to the injury of prior appro- 
 priators over the line. Two ditches that I know of have been com- 
 pleted and water is being diverted in the valley of the Poudre river, 
 and the injury has become so pronounced that the case is now pend- 
 ing in the United States circuit court. 
 
 I have heard the claim made that Colorado contends that she has 
 the right to take the waters out of the streams mentioned in Colo- 
 rado to the detriment and injury of the citizens of Wyoming who 
 have made prior appropriations. (Objection by defendants.) 
 
 3793 Cross-examination on behalf of complainant. 
 
 By Mr. Ashbaugh : 
 
 I think the doctrine of prior appropriation would only be appro- 
 priate where the water is taken from the stream and actually used 
 and the volume of the stream materially decreased thereby. The 
 doctrine of riparian rights prevails in the State of Illinois. I think 
 there would be no necessity for the doctrine of prior appropriation 
 in Illinois. If the doctrine of riparian rights should be suddenly 
 uprooted in the State of Illinois, and the doctrine of appropriation 
 forced upon them, if there were no use made of the water which 
 would decrease the volume of the stream, I believe the doctrine of 
 appropriation would have no injurious effect. The doctrine 
 
 3794 of riparian rights could not be destroyed ; that is, the object 
 of the doctrine would not be destroyed if the volume of the 
 
 stream were not decreased or the quality of the water were not im- 
 paired. 
 
 Q. Supposing the doctrine of riparian rights were forcibly de- 
 stroyed, what effect would it have upon such a State as Illinois? 
 
THE STATE OP COLORADO ET AL. 1025 
 
 A. It would probably be injurious under the conditions prevailing 
 there. 
 
 If there were no irrigable lands in a State like the State of Illi- 
 nois, the doctrine of riparian rights would be proper and appropriate. 
 The doctrine of riparian rights is useful to those States where it is 
 applicable to their conditions and where irrigation cannot be carried 
 on ; and on the contrary the doctrine of prior appropriation is useful 
 and beneficial to those States where riparian rights could not 
 
 3795 be applied beneficially and usefully, and I do not mean to be 
 understood as saying that the one could be made applicable 
 
 to the conditions that would be most useful for the other. In the 
 application of these two doctrines conditions should be taken into 
 consideration. The modified doctrine is where the doctrine of 
 riparian rights is so modified as to permit the persons having prop- 
 erty abutting on a stream to use the same for irrigation. These 
 persons have the right to use the water for irrigation — the people 
 that have the riparian rights or the property abutting on the stream. 
 The original doctrine of riparian rights did not permit the diminu- 
 tion of the volu-e of water flowing in the stream. I understand the 
 doctrine of riparian rights prevents a man from irrigating his 
 
 3796 own land bordering on the stream even if it did diminish 
 the stream. I have read some of the decisions upon the 
 
 modified riparian rights doctrine. This was some time ago. I have 
 read a Nebraska decision. I believe that is the case of The Crawford 
 Company vs. Hathaway, and I think that decision would lead me to 
 the conclusion as stated by me as to the modified doctrine. (Objec- 
 tion by defendants.) As to what could be done in such States as the 
 Dakotas, Nebraska, Kansas and Texas in the application of the 
 doctrine of riparian rights or the doctrine of prior appropria- 
 tion, I think the doctrine of appropriation could be carried 
 across the State line, regardless — I think that would be the 
 
 3797 solution of the whole thing, to recognize the doctrine of ap- 
 propriation regardless of State lines. I think if the conditions 
 
 are different in a single State the policy and the theories upon which 
 the administration is based should vary accordingly. I understand 
 that perhaps Montana, Washington, Oregon and California have 
 both doctrines prevailing within their borders and both are upheld. 
 I think the reason is that each of these States just named partakes 
 of both of the physical conditions that demand these different 
 
 3798 doctrines of riparian rights and prior appropriation. I be- 
 lieve that the States of Kansas aud Nebraska could be divided 
 
 geographically just as easily as the State of Washington, because 
 the Columbia river in Washington is a navigable stream and 
 riparian rights have accrued on the Columbia river in eastern Wash- 
 ington. It is true to a certain extent that on one side of the range 
 of mountains in Washington the conditions are entirely different 
 from those on the other side of the range, but there are places 
 
 3799 in eastern Washington where irrigation is practiced. I don’t 
 think it would be much easier to draw a line at the crest of 
 
 65— -7 
 
1026 
 
 THE STATE OF KANSAS VS. 
 
 the mountains in Washington than to draw a line in the States east 
 of Colorado. It would be more difficult in Texas because there is 
 less irrigation and less water in the dry portions of Texas. But I 
 think it would be a very simple matter to definitely define the por- 
 tions of the State of Texas where the two doctrines should apply. 
 The line might be rather crooked. 
 
 3800 Including all streams that have a substantial flow that 
 could be used in irrigation, there are probably not over six or 
 
 eight that have their sources in Colorado and then flow into Wy- 
 oming. The waters of the streams that I mentioned in my direct 
 examination have been appropriated for use in Wyoming. As to 
 the effect upon the development of the county along where the 
 water has been appropriated in Wyoming, it would have been im- 
 possible to have progressed at all along agricultural lines in Wy- 
 oming if this water had been appropriated in Colorado. And if the 
 water should be so appropriated it would absolutely prevent and 
 ruin all development that had taken place. It injures the property 
 that has grown up along the stream just as much to have some one 
 above take all of the water whether a State line intervenes or 
 not. 
 
 3801 There are streams running from Colorado into other States 
 besides Wyoming that are similarly situated. There is the 
 
 North Platte, which flows into Nebraska, the Grande river which 
 flows into Utah, the Rio Grande, which flows into New Mexico, and 
 in fact all of her streams, or a number of them, rise in the State and 
 flow across her borders. Both branches of the Platte river rise in 
 Colorado and flow into Wyoming and then into Nebraska, the South 
 Platte flowing from Colorado into Nebraska directly. If all of the 
 water in the branches of the Platte is appropriated and actually used 
 in Colorado, it would destroy all agricultural development 
 
 3802 in both Wyoming and Nebraska and prevent any future 
 development, and destroy the property already in existence 
 
 to a large extent. It is my judgment that as a matter of justice 
 there should be some control over inter-state streams — as a matter 
 of justice to the appropriators who have gained rights to use the 
 water by actual beneficial use. And that control should go as well 
 to the benefit of the parties who at a prior time had settled on a stream 
 below as though it were invoked in favor of prior appropriators who 
 had settled above. In other words, I think that some equitable con- 
 trol should be exerted and exercised over those streams in favor of 
 the real rights of the parties that exist as against subsequent rights 
 that grow up to their injury. 
 
 3803 Cross-examination on behalf of defendants. 
 
 By Mr. Dawson: 
 
 I mean by the riparian doctrine pure and simple the doctrine 
 which requires that the waters of a natural stream be allowed to 
 flow in their original course undiminished and unpolluted. I mean 
 
THE STATE OP COLORADO ET AL. 
 
 1027 
 
 by the doctrine of appropriation that doctrine which is recognized 
 in the arid States as the appropriation and application of water to 
 a beneficial use, the firs’ in time being the first in right, according 
 to use. By the modified riparian doctrine I mean that doctrine 
 which, still recognizing the old riparian rights doctrine, has modi- 
 fied it to the extent of permitting those owning lands abutting on a 
 stream to use water from that stream on which the lands abut, for 
 the purpose of irrigation, and I understand that our doctrine of ap- 
 propriation as used in Colorado and Wyoming is that we may use 
 waters from a stream to irrigate lands even though they do 
 
 3804 not abut on the stream. The abolition of riparian rights, 
 for instance in a State like Illinois, would not work anything 
 
 like the hardship to the people that the abolition of the doctrine 
 of appropriation would in the arid States, because the conditions 
 are such there that the streams will flow as they are now 
 regardless of the doctrine of riparian rights, while here if we 
 abrogate the doctrine of appropriation we have lost the right to 
 divert the waters from the streams on the lands which are not 
 riparian. If we abolish the doctrine of appropriation in the arid 
 States, that will practically return a large portion of the land to 
 waste or grazing lands that are now cultivated; while if you should 
 abolish the doctrine of riparian rights in the State of Illinois the 
 condition of that country would not make it at all probable that 
 any great amount of water would be withdrawn from the 
 
 3805 river, as it would not be necessary to withdraw it from the 
 river and put it on lands where irrigation is not practiced. 
 
 I consider that agriculture is the highest use to which water can 
 be put, next to domestic use, and undoubtedly irrigation would be 
 more valuable than to allow the water to run in the stream, and 
 can be made of the best use to the population of a country. Under 
 the doctrine of appropriation rather than under the modified ripa- 
 rian doctrine the best use of the water can be made for the best in- 
 terests of the population of a country. In a State where the land 
 of one-half can be made productive only by irrigation and the other 
 half is productive without irrigation, undoubtedly the doctrine of 
 appropriation, if they could only recognize one, would be 
 
 3806 of the greatest benefit and the one that should prevail. 
 
 My observation has been that the best agricultural regions 
 are those where irrigation is practiced. Other conditions being 
 equal, irrigated lands will support the larger population, and that 
 fact is demonstrated by the irrigated sections of the Old World as 
 well as by those of this country. Irrigation has not reached its 
 highest stage of development in this country ; it has just begun. 
 There are sections of the Old World where they have progressed 
 much further. Egypt is one place where a better and more eco- 
 nomical use and a larger yield is obtained from the water applied, 
 as they make the same amount of water go further and produce 
 larger results. The use of irrigation encourages and leads to in- 
 tensive cultivation, and it also leads toward dividing the lands up 
 
1028 
 
 THE STATE OE KANSAS VS. 
 
 into smaller holdings. I have made some investigations and 
 
 3807 observations concerning the return of seepage waters. By 
 “seepage waters” we mean that water which passes beneath 
 
 the surface of the ground from ditches or irrigated fields to 
 the natural channel of either the main stream or a tributary, 
 and it has been my experience that wherever irrigation is 
 practiced for any considerable length of time there is more 
 or less return water. It is very difficult to say what percent- 
 age reappears, because the normal conditions have not been 
 reached anywhere, but the return waters will undoubtedly increase 
 from year to year as this water has time to reach the natural chan- 
 nel. My investigations along the line of return waters are in 
 
 3808 regard to lands that have probably not been irrigated over 
 fifteen to twenty years, and the results as I remember them 
 
 do not exceed thirty per cent, in any case. (Objection by complain- 
 ant.) I believe that the return waters are increasing and will con- 
 tinue to do so. If a junior appropriator in Colorado should take 
 water from a stream which has a senior appropriator in Wyoming, he 
 has pretty nearly gotten all of that water for all time, and that is true 
 with the exception of lands on the head waters of the North 
 
 3809 Platte where there is some irrigation. As far as Wyoming is 
 concerned the return waters do not come back to Wyoming. 
 
 The water is diverted into another drainage basin altogether. The 
 investigation to which I referred was made on one stream where I 
 spent a summer in making it, and the maximum return was thirty 
 per cent. That is the water that I could actually measure at the 
 mouth of the stream on the surface. In thrs instance there was such 
 a formation as would naturally bring all of the water to the surface. 
 By using the water near the sources of the stream you undoubtedly 
 get the largest use of it ; but there is a question as to whether the 
 water has the greatest value at that point on account of the 
 
 3810 increased return from the crops that can be grown at lower 
 altitudes. And after you reach the plains country such as 
 
 you have in Colorado east of the Rocky mountains undoubtedly a 
 greater use can be gotten from a stream near the mountains 
 
 3811 rather than farther away. I think that the waters which 
 originate in the mountains undoubtedly have an effect upon 
 
 the flow of water in such streams as the Arkansas river all the way 
 through, and I should say that the larger part of the water which 
 you find on the lower reaches of the Arkansas river is derived from 
 its upper reaches, above, from the surface flow and the underflow 
 returning from the waters which have been spread over the land in 
 irrigation. Of course the tributaries from the plains along the river 
 add something to it, undoubtedly. 
 
THE STATE OF COLORADO ET AL. 
 
 1029 
 
 3812 Recross-examination on behalf of complainant. 
 
 By Mr. Ashbaugh : 
 
 I should say the higher use of water for irrigation comes more 
 from the economical use of the water than the actual use of the 
 water under the doctrine of appropriation. Under the doctrine of 
 riparian rights it is not necessary to make beneficial use of the 
 water. They have the water without using it. You have a certain 
 right to that water that flows bv your place without using it if you 
 have a right in it at all, and if it assists in growing a crop it is 
 equally beneficial. Undoubtedly it is as high a use as under the 
 other doctrine, provided it is equally beneficial. 
 
 Undoubtedly the larger percentage of the water which is used 
 for irrigation is lost through evaporation. There is no ques- 
 tion in my mind about that. And it would be my judg- 
 3818 ment that it runs from seventy to eighty-five per cent., 
 from the figures I have been able to secure; that is, 
 that seventy to eighty-five per cent, is either lost by the evap- 
 oration from the ground, from the surface of the water in ditches 
 or through plant life, or escapes underground in a way that 
 cannot be accounted for. Of course where seepage increases it 
 has been used a long time until the ground would become satu- 
 rated and there would be more. For the first number of years 
 while the ground is being saturated of course there would be cor- 
 respondingly less water that would get back into the stream, even 
 if it would be all used on the drainage area of that stream, depend- 
 ing on the distance of the irrigated land from the stream, 
 
 3814 the character of the soil, etc. I have been along the Arkan- 
 sas river. Through the western part of Kansas and a very 
 
 little in the eastern part of Colorado the condition is such that a 
 good deal of the water is taken up by the soil and the sand in the 
 bed of the river. There is water near the surface of the ground 
 and it very probably has a very slow velocity, and in my judgment 
 must have some movement. Undoubtedly water is being absorbed 
 at the western portion and it come out east of there. That has been 
 my experience in all streams, that it disappears and reappears. T 
 know of no streams that flow into the Arkansas river in t lie State of 
 Kansas of any size whatever that would affect the flow of the river 
 west of the Little Arkansas that empties in at Wichita. 
 
 The average rainfall through the Arkansas River drainage in west- 
 ern Kansas as I remember it is something like eighteen or nineteen 
 inches per annum. 
 
 3815 Recross-exarai nation on behalf of defendants. 
 
 By Mr. Hayt : 
 
 Yes, I said that seventy to eighty-five per cent, of the water used 
 in irrigation was lost by evaporation, consumed by plant life or es- 
 
1030 
 
 THE STATE OF KANSAS Vb. 
 
 caped beneath the ground, and a very large proportion of it is lost 
 by evaporation. 
 
 The studies of the Weather Bureau have so far failed to show, to 
 my judgment, any change in climate from any effect of evaporation 
 n the arid region in the vicinity of Cheyenne and along the east 
 side of the Rocky Mountain range in Colorado and down to 
 
 3816 the Kansas line. That is my opinion. I have studied that 
 considerably. That record has been kept for thirty years — 
 
 the record I have. If there is a very small effect upon the condi- 
 tions of the weather, it would probably take several hundred years 
 to determine exactly what the effect would be. If it is an appre- 
 ciable effect it might be shown in a few more years. That is a very 
 difficult thing to get at. 
 
 I would not be satisfied on the point that in this arid region after 
 cultivation heavy dews fall in places where before there was no 
 dew. I have seen dew in the mountains and other places, even on 
 the plains, where there has been no irrigation anywhere near, 
 
 3817 and before any special development had taken place along 
 that line. My judgment would be that the dews are proba- 
 bly heavier on cultivated lands. I don’t remember any case now 
 that will enable me to determine with reference to the dews upon 
 the lands that are irrigated as compared with the dews upon lands 
 that are not irrigated; nor have I been able to tell any difference 
 in regard to the dews upon irrigated land in arid regions growing 
 crops and upon lands not irrigated immediately joining, and I have 
 gone through them. Of course if you go from a plain where the 
 grass is not heavy into an alfalfa field, for instance, you will probably 
 find more dew there, but you cannot say that the amount of dew that 
 is collected there is any different, because the alfalfa might prevent 
 its evaporation and dissipation. I should not like to commit my- 
 self until I have been able to study it further on the point that the 
 
 dew is equal upon the arid lands not cultivated to that on 
 
 3818 the alfalfa fields I have just spoken of. 
 
 A large part of the water that is taken up by evaporation 
 undoubtedly passes away and falls elsewhere as rain. It is not de- 
 stroyed. It is precipitated somewhere and it must increase the rain- 
 fall or the precipitation of moisture in some localities, undoubtedly. 
 The water that evaporates on a plant is lost to the immediate local- 
 ity where the plant grows the same as the water that evaporates from 
 a ditch or field, undoubtedly. The water that goes into the forma- 
 tion of a growing plant is a very small part of the water that the 
 plant uses, there is so much more evaporated from it, and ultimately 
 the amount that goes into the plant itself is lost to the immediate 
 locality; because the plant is dryed finally and it passes away 
 as evaporation — as vapor. A great deal of the water in the 
 case of alfalfa, I know from measurements that have been made, 
 passes into the plant and then out into the air, and when the 
 alfalfa is cut and dried a large percentage of the moisture contained 
 
THE STATE OF COLORADO KT AL. 
 
 1031 
 
 in the alfalfa passes into the air. Of coarse it still contains 
 
 3819 moisture, but it is a very small percentage of what is lost 
 through the plant in other ways. Applying this to alfalfa 
 
 pastured upon the ground as distinguished from its being cut and 
 cured as hav, and fed upon the ground — grazed — that gets to be a 
 pretty complicated question and I have never followed it quite that 
 far. The question of the water in that case gets so complicated that 
 it cannot be measured. It could be measured, I suppose, but I don’t 
 know of any experiments that have been made along that line. I 
 think the water taken up by the growing alfalfa, when the latter is 
 grazed off by stock upon the ground, is such a small matter as com- 
 pared with the volumes that are necessarily used for irrigation that 
 it would become of no value to the irrigator to spend his time in try- 
 ing to determine it, and I could not determine it at this time and 
 would not care to commit myself. 
 
 Recross-examiuation on behalf of complainant. 
 
 By Mr. Ashbaugfi : 
 
 3820 From all my experience and my reading of weather reports 
 as far back as I have gone I have never seen anything that 
 
 would lead me to believe that there has been any material change in 
 the rainfall in eastern Colorado, as to increasing or diminishing. 
 Seasons change and differ from each other, but the records thus far 
 made would not lead me to believe that there has been any mate- 
 rial change so far as the climatic conditions are concerned. This 
 also applies to Wyoming. The average shows no change. As to 
 Kansas, I have sometimes examined tiie records there, but my im- 
 pression is that the records there are identical with those in Wyo- 
 ming as regards nochange having taken place, and it is myjudgment 
 that it is practically true in what is known as the arid region in 
 western Kansas that there are series of years in which the rec- 
 ords have been kept and show no material change one way or the 
 other. 
 
 Recross-examination on behalf of defendants. 
 
 By Mr. Hayt : 
 
 I have read of the precipitation in the form of dew being 
 3821 measured separately from that in the form of rainfall. But 
 in the rainfall measurements made by the Government that 
 lam acquainted with the dew is not taken into consideration ; it is 
 not measured. And when the Government measurements of the 
 precipitation of moisture are spoken of, that does not include the 
 precipitation of dew. I should like to amend that in this way — 
 that where the rain gauge has been kept in very close proximity to 
 the ground, if the dew is enough to be appreciable at all it might be 
 included, but as a rule these are kept above the ground, in cities, 
 and at quite an elevation above the ground. 
 
1032 
 
 THE STATE OF KANSAS VS. 
 
 Redirect examination on behalf of intervenor. 
 
 By Mr. Campbell : 
 
 A record lias been kept of wind-storms in Wyoming during the 
 last few years. I think there has been very little change in respect 
 to the number of wind-storms and the velocity of winds in the last 
 few years in Wyoming. Mv judgment leads me to believe that 
 where the experiments are made the country is more sheltered than 
 a few years ago, but you take the exposed plains and I believe there 
 is very little difference in the wind. Where trees have been 
 
 3822 grown they temper the wind locally, acting as a wind-break. 
 Nothing has yet been determined along the line as to whether 
 
 the reclamation of the land and the cultivation of it has any effect 
 on the wind-storms in Wyoming. 
 
 The assessed valuation of Wyoming is about $46,000,000. This 
 is about thirty per cent, of the real value. Directly and indirectly, 
 probably sixty or sixty-five percent, of this is based upon irrigation 
 as it is understood in the arid region. I would say that about 
 
 3823 seventy-five per cent, of the value of the property in the arid 
 region is based upon irrigation. It runs higher elsewhere 
 
 than it would in Wyoming. 
 
 My understanding is that the modified doctrine of riparian rights 
 has been followed in certain localities in California, undoubtedly. 
 I have read a work by Mr. Works, a lawyer of California, on irriga- 
 tion. I consider him a pretty good authority on that subject. I 
 think it could be said that the modified riparian doctrine has not 
 been followed generally in California, although it has been 
 
 3824 in localities that I know of. If Mr. Works says in the work 
 referred to that the following of the modified doctrine in 
 
 California was injurious, I would consider it a correct statement with 
 respect to that region. 
 
 There are excellent opportunities for building reservoirs to catch 
 the flood and other waters in the State of Wyoming. There are 
 two large reservoirs now being built under what is known as the 
 reclamation act. The Pathfinder reservoir, one of them, is located 
 near the mouth of the Sweetwater river, on the Platte, and will 
 store, when completed, about a million acre-feet of water, and will 
 provide a summer flow so that approximately three hundred thou- 
 sand acres can be irrigated. The other project is on the Shoshone 
 river west of Cody. It will store one hundred and sixty thousand 
 acre-feet, and with the natural flow of the stream it is expected that 
 one hundred and fifty thousand acres will be irrigated. 
 
 3825 The largest single enterprise in Wyoming where land has 
 been reclaimed is at Wheatland, ninety-six miles by rail 
 
 north of Cheyenne. They have, probably under cultivation and 
 irrigation at the present time about twenty thousand acres. There 
 are sixty thousand acres in the project, although something like 
 forty thousand acres have been irrigated under this enterprise, and 
 a reservoir which will store one hundred and twenty thousand acre- 
 
THE STATK OF COLORADO ET AL. 
 
 1033 
 
 feet has been built. The complete use of the water under the reser- 
 voir has not yet been attained. They are now irrigating twenty 
 thousand acres. This enterprise supports at the present time prob- 
 ably about two thousand five hundred people in and around 
 
 3826 Wheatland. It has been in practical operation for ten years. 
 It was started in 1883. In and around Wheatland was a 
 
 prairie fit only for grazing before this enterprise was started. 
 
 Another prominent instance in Wyoming is the country in the 
 vicinity of Sheridan, irrigated from the Tongue river and its tribu- 
 taries. There are probably between fifty and sixty thousand acres 
 irrigated in that locality. Before they started to irrigate it was 
 probably a better grass country than a wheat country, but otherwise 
 there was no difference. It was fit only for grazing purposes. 
 
 3827 A profitable crop could not have been raised before the ap- 
 plication of water. 
 
 I have made some investigations with respect to what is called 
 the underflow in the Arkansas valley, and from this investigation I 
 would say that it is percolating water. I am confident of that. It 
 is simply flowing water beneath the surface of the ground. I would 
 not venture an opinion as to the source where it percolates from — 
 whether from the stream or from rainfall. 
 
 The four million acres of land which I said could be irrigated yet 
 in Wyoming is largely public land. In my judgment it cannot be 
 made profitable and inhabitable without the application of 
 
 3828 the waters of the streams of that State. It is impossible to 
 make it inhabitable and profitable without the application of 
 
 the water. 
 
 Recross-examination on behalf of complainant. 
 
 By Mr. Ashbaugh : 
 
 As to the waters beneath the surface of the Arkansas river, if they 
 have a tendency to flow at all they would flow easterly in the Ar- 
 kansas river. It undoubtedly has a slow motion down stream. The 
 distinction between the underflow and percolating waters is that in 
 percolating waters the water is broken up into fine films and there 
 is no way to measure it exactly, while an underflow is water 
 
 3829 that is really flowing under the ground and the velocity can 
 in some way be determined. It would be assumed from the 
 
 measurements that have been made that the water does have a defi- 
 nite current in the Arkansas valley beneath the surface and in a 
 particular direction. It disappears in one place and reappears in 
 another. You have to assume that it moves. I think it lias been 
 measured in recent years, and my measurements have all been made 
 on the surface, and I am satisfied that the water passes 
 
 3830 through the sand, so that it must have a velocity of some 
 kind. 
 
 I presume I would be safe in saying that from sixty to sixty-five 
 
1034 
 
 THE STATE OF KANSAS VS. 
 
 per cent of the wealth of each arid State is due to the development 
 of agriculture under irrigation. If I should make the comparison 
 I would say that if you had the water in western Kansas down there 
 that would enable you to develop that portion of the State and 
 sixty-five per cent of the wealth of western Kansas would undoubt- 
 edly be due to irrigation. 
 
 3832 Nellis E. Corthell, Denver, Colorado. 
 
 Direct examination on behalf of intervenor. 
 
 By Mr. Campbell : 
 
 I have been a practicing lawyer at Laramie, Wyoming, for about 
 twenty-one years. I came from New York. I studied law at Lara- 
 mie. I am very well acquainted generally with the conditions 
 
 3833 prevailing all over Wyoming. I have been in every county, 
 I think, in the State. I came to Wyoming twenty-five years 
 
 ago. In the practice of my profession I have had occasion to give 
 the subject of irrigation my attention. When I came to Wyoming 
 there were about twenty thousand people there. There is now esti- 
 mated to be about five or six times that number, and I think from 
 three-fourths to four-fifths of that population is sustained directly or 
 indirectly by the irrigation of the land. I should think that the prop- 
 erty values directly created by irrigation would amount to twenty- 
 five or thirty millions of dollars. A far greater proportion of the re- 
 mainder of the property of the State is due indirect^ to irriga- 
 
 3834 tion. Irrigation in Wyoming is only in its infancy. It is a diffi- 
 cult matter to express an opinion in respect to how much more 
 
 property in value can be created in Wyoming by using the waters 
 not now used in reclaiming lands, because it involves a knowledge 
 of the quantit} r of water available and which I think is not known 
 with any degree of accuracy, and it also involves the question of 
 the duty of water under the progressive conditions and the changed 
 conditions of climate and cultivation, so that opinions on that sub- 
 ject would necessarily vary very much. My best judgment is that 
 a fully irrigated area of ten million acres is not an extravagant es- 
 timate of the possibilities, and from my observation of the farming 
 and stock raising industry as it may be carried on there I think 
 forty acres of irrigated land in connection with a proportionate 
 amount of dry range land would support an average family of five. 
 
 Irrigated land in Wyoming is now worth from ten to a hundred 
 dollars an acre. It is increasing in value with the development of 
 the State and the process of intensifying the cultivation of laud. 
 
 In my estimate of the number of people that forty acres of irri- 
 gated land would support I was speaking of the number 
 
 3835 which could be directly supported. Probably fifty per cent 
 in addition could be supported indirectly. 
 
 I think I know what is generally termed the arid region of the 
 United States. Wyoming is included within it. 
 
THE STATE OF COLORADO ET AL. 
 
 1035 
 
 I think I understand what is meant by the doctrine of ripa- 
 
 3836 rian rights. Taking the doctrine of riparian rights as allow- 
 ing a reasonable use of water for irrigation, I suppose some 
 
 reclamation would be possible under its application. It is possible 
 that under that doctrine of riparian rights such as I have named as 
 much land might have been reclaimed and irrigated there as is act- 
 ually irrigated now under the doctrine of riparian rights as so un- 
 derstood. Mv understanding of the doctrine of riparian rights is to 
 give all of the riparian owners on the stream the right to a reason- 
 able use of the water for irrigation as well as other purposes; that 
 is to say, distributing the water among all irrigators on the entiie 
 length of the stream. There is a vast body of grazing land in Wy- 
 oming irrigated from the streams, that is non-riparian. This land 
 could not have been reclaimed under the doctrine of riparian rights • 
 if anyone should have complained. 
 
 I understand what is meant by the doctrine prevailing in Cali- 
 fornia as laid down in the case of Lux vs. Haggin and in the case 
 from Nebraska known as the Crawford Company vs. Hatha- 
 
 3837 way. As I understand the doctrine in those cases, its appli- 
 cation to the arid region would very seriously affect the future 
 
 development therein by irrigation because it would prevent people 
 from investing money in such precarious property. It is hardly 
 conceivable that under that doctrine the Government or anyone else 
 would invest vast sums of money in the storage of water that they 
 might be compelled to turn down the streams on the complaint of 
 anv lower appropriator. 
 
 Wyoming has a provision in its constitution similar to that of 
 Colorado, claiming that all of the waters of the State belonged to it. 
 The effect of the application of that doctrine upon the reclamation 
 act, if it is understood to give the State the absolute ownership of the 
 body of the water, would prevent anyone from investing money and 
 making appropriations of water on a stream, I think, in another 
 State. My judgment is that the application of either of these doc- 
 trines just mentioned would seriously affect the administration of 
 the reclamation act. 
 
 There are a number of streams in Wyoming which head in 
 
 3838 Colorado. The Big Laramie, the North Platte and Sand creek 
 are the ones that most readily occur to me. I know of my 
 
 own knowledge that the citizens of Colorado are taking the waters 
 from the heads of these streams in Colorado to the detriment and 
 damage of prior appropriators in Wyoming. (Objection by defend- 
 ants.) I know of a number of instances of that kind. I suppose 
 the most conspicuous instance is that of the Water Supply & Stor- 
 age Company located at Fort Collins, Colorado, which some years 
 ago took out a large ditch from the west branch of the Laramie river 
 and carried it into Chambers lake, from which itis carried down the 
 Cache la Poudre in various storage reservoirs and ditches. This has 
 undoubtedly injured the prior appropriators in Wyoming, in some 
 years cutting them short in the supply of water. Only the part of 
 
1036 
 
 THE STATE OF KANSAS VS. 
 
 the seepage water that is lost in the ditch before it passes the divide 
 comes back into the same stream. The water is carried 
 
 3839 over the divide and into the water shed of the Cache ia 
 Pond re which flows into the South Platte. There is also the 
 
 case of the Divide Ditch Company, another company, that has a 
 ditch known locally as the Columbine, and Dead Man’s ditch, which 
 takes water from Columbine creek and Dead Man’s creek and turns 
 it into Sand creek, and then by means of the Divide ditch it is taken 
 out of Sand creek at a lower point and carried over the divide into 
 Sheep creek, and thence into the North fork of the Cache la Poudre 
 and down into the Poudre valley. The amount of water taken out 
 of Sand creek by the Colorado people in 1902 was about nine hun- 
 dred acre-feet. In that year there was a somewhat larger quantity 
 ran down the stream than was taken out. I don’t remember just 
 the figures. There were at this time being irrigated from the 
 
 3840 waters of Sand creek in Wyoming about five or six thousand 
 acres. The diversion of that water from those five or six 
 
 thousand acres in Wyoming by Colorado ruined thecrops that year. 
 They got practically no crop. I know that the paper that is now 
 handed me, which is attached to a document entitled “The United 
 States Department of Agriculture, Office of Experiment Stations, 
 Bulletin 133, by A. C. True, Director ; Report of Irrigation Investiga- 
 tions for 1902,” at page 100, is a properly delineated map showing 
 the ditch known as the Divide ditch. 
 
 (Intervenor’s Exhibit 1 offered in evidence.) 
 
 3841 According to this map, which I believe is right, Sand creek 
 heads in the middle of township 10 north, range 75 west, and 
 
 runs in a generally northerly course, passing the Colorado and Wy- 
 oming line in township 12 and running into the Big Laramie river 
 in township 14 north, of range 74 west. The divide ditch is taken 
 out, I believe, in section 22, township 11 north, range 75 west, and 
 runs perhaps one-half mile along near the bank of the creek and then 
 turns rather sharply to the east and runs for about a mile to a point 
 where it passes over the divide between Sand creek and Sheep creek 
 and is there discharged and allowed to find its way down into Sheep 
 creek and along down into the La Poudre valley. Sheep creek 
 flows into the Poudre, and the latter into the South Platte. The 
 seepage waters taken from Sand creek through that Divide ditch 
 down to Sheep creek necessarily go into the Poudre basin. 
 
 I know that water is being taken out of the Laramie, which is a 
 tributary of the North Platte, and also out of the North 
 
 3842 Platte, for irrigation purposes in Wyoming. Water is taken 
 out of the Big Laramie river and its tributaries, except the 
 
 Little Laramie, for the irrigation of perhaps two hundred thousand 
 acres of land. The waters of the South Platte are pretty nearly all 
 taken out up here in Colorado. There is very little flowing down 
 about Julesburg. The North Platte and South Platte form their 
 junction at North Platte, Nebraska, about two hundred miles by rail 
 
THE STATIC OP COLORADO ET AL. 
 
 1037 
 
 from the Wyoming line and one hundred and fifty miles from the 
 Colorado line. 
 
 I was acquainted with the North Platte beyond the junction some 
 years ago. When I came West in the early part of 1880 I 
 
 3843 stopped for some months at Central City, Nebraska, and the 
 North Platte, which runs through that town, attracted my 
 
 attention and aroused a great deal of curiosity at that time, because 
 it was different from any other stream I had seen before. At the 
 season of the year when the water should have been high there 
 was very little water in the stream. I have seen it at the 
 same period recently below Grand island near Central City. If 
 there is any difference now it would be my judgment there is 
 more water in it in the summer now than when I first saw it. 
 
 3844 My explanation for this is that it is a plainly observable phe- 
 nomenon of all these streams in the arid country that up to a 
 
 certain extent, which perhaps is not yet ascertained, the taking out of 
 water on the head of the stream and on the small tributaries retards 
 and saves the flood waters that would otherwise go to waste, and 
 that several weeks or months later find their way back into the 
 stream, increasing the flow during the dry season or the ordinary 
 period of low water. 
 
 Cross-examination on behalf of complainant. 
 
 By Mr. Ashbaijgh : 
 
 3845 Where the water is taken out in narrow valleys on the 
 headwaters it comes back very quickly, sometimes within 
 
 3846 two or three days. The amount of water that is lost by 
 evaporation or absorbed by plant life depends on the amount 
 of water put on the land and the conditions of the soil and 
 
 3847 the drainage of the stream. But I do not feel able to give 
 the figures. I don’t know whether the flow of the Platte 
 
 river has been increased or not. I have heard complaint down 
 there in Nebreska that the Platte has been dried upbecaused 
 
 3848 of the irrigation in Colorado. I knew of such complaints in 
 Nebraska by reading the newspapers and hearing people talk 
 
 in Nebraska, but not of my personal knowledge. 
 
 If I understand the Supreme Court in the case of the Crawford 
 Company vs. Hathaway, it is an attempt to apply the doctrine of 
 riparian rights to one part of the State and the doctrine of appropri- 
 ation to another part of the State, and it seems to me it would be an 
 impossible rule, and having some knowledge, as I have, of condi- 
 tions in that western part of Nebraska, which are very similar to 
 the conditions in Wyoming and Colorado, it seems to me it 
 
 3849 would be disastrous, at least to the western part of that State, 
 to enforce the rule. No, I would not go to the extent of say- 
 ing that the Supreme Court did not decide that case wisely. I do 
 not assume to pass upon the wisdom of the Supreme Court. 
 
 It is true that I have been associated in all my business life as 
 
1038 
 
 THE STATE OF KANSAS VS. 
 
 an attorney with business in a country where irrigation was the 
 paramount feature, and that I am looking at it from the irrigation 
 standpoint. I have been speaking in my testimony of conditions as 
 they exist generally in the arid region without respect to any 
 3850 State lines or conflicting rights. If you ask for my personal 
 opinion, I would say it is decidedly better to have the doc- 
 trine of prior appropriation or perhaps some modification of it 
 established in the humid regions, in the State of Illinois or the State 
 of Massachusetts or any other State of the Union, and in every part 
 of the United States that I am familiar with. I think it would be 
 better to have the extreme doctrine of riparian rights wiped out of 
 every State of the Union. I am opposed to the extreme doctrine of 
 riparian rights. I think there is a chance for irrigation in 
 3S51 such States as Illinois, Iowa, Michigan or Indiana. I have 
 gotten this far along in supporting the doctrine of appropria- 
 tion, that I think now it is for the best interests of the whole United 
 States to wipe out all the doctrine of riparian rights and substitute 
 the doctrine of prior appropriation if it becomes a question between 
 the extreme doctrine of riparian rights and the doctrine of 
 
 3852 prior appropriation. There are some undertakings in the 
 way of irrigation now in what is known as the humid States 
 
 3853 that have been carried on for a number of years. As a 
 practical proposition it appears to be a modification of the 
 
 doctrine of riparian rights to allow a man to irrigate his own ripa- 
 rian lands, and makes it more reasonable, of course. That is my 
 understanding of it as a law3^er. I don’t know whether they ever 
 had any irrigation of riparian lands by the owners of the lands in 
 England or not. So far as I have examined the plan and purpose 
 of the reclamation service, it is consistent with the doctrine of prior 
 appropriation, and I think the use of water under the reclamation 
 act and the doctrine of prior appropriation can both stand 
 
 3854 and be carried on in the State of Wyoming. I think the 
 Government undertaking is highly important and perhaps 
 
 essential to the use of all the water. I think that under the rec- 
 lamation act of June 2, 1902, the lands in Colorado can be re- 
 claimed and it can be made successful. 
 
 If the State of Colorado should claim the right because of her 
 sovereignty to take all of the water of those streams arising in 
 Colorado and flowing into Wyoming, that claim of Colorado would 
 have to be overthrown or the plans of the reclamation service would 
 have to be very materially modified. Take, for instance, the Path- 
 finder project on the North Platte river, which is located something 
 like fifty or sixty miles below the Colorado and Wyoming line, and 
 if the water of the North Platte rising in Colorado were the abso- 
 lute property of the State of Colorado it would be quite necessary 
 for the Government to either abandon the plan to impound that 
 water or to move the reservoir up into the State of Colorado and get 
 permission to store the water there or to make some arrange- 
 
 3855 ment with Colorado to let it down into the Pathfinder dam. 
 That would be just as true whether the State of Colorado owns 
 
THE STATE OF COLORADO ET AL. 
 
 1039 
 
 the water or whether it controls it. The other instance I thought of 
 is one in which the interests of the Government reclamation service 
 might come in conflict with the claim of absolute right on the part of 
 the State government. This same conflict might arise on the Big Lar- 
 amie river. If this doctrine of Colorado should be carried out it might 
 affect the reclamation service upon every stream flowing from 
 
 3856 Colorado into Wyoming. This would also be true in all 
 cases where the claim- were made by the superior States that 
 
 they owned the body of the water arising within their borders. 
 This would affect the reclamation service in the western portion of 
 Nebraska, the same as in the State of Wyoming. This would also 
 be true of every State lying below the State of either Colorado or 
 LHah or the mountain States where the streams happen to rise. I 
 know where there is a conflict between the citizens of Wyoming and 
 the citizens of Colorado growing out of the fact that the citizens of 
 Colorado have made subsequent appropriations on a stream rising 
 in Colorado and flowing into Wyoming to the deteriment 
 
 3857 of the prior appropriators of Wyoming. Such a case now 
 exists in the United States circuit court for Colorado. It is 
 
 pending here now and is to be argued to-morrow. (Objection by 
 defendants.) The facts about that case are in brief as follows: The 
 waters of Sand creek, as shown in Intervenor’s Exhibit 1, were appro- 
 priated many years ago by the citizens living along that stream in 
 Wyoming for the irrigation of lands there. All of the waters, I be- 
 lieve. In 1901 or 1902 a Colorado company took out the Divide 
 ditch in Colorado and turned out a large part of the water over the 
 divide into Sheep creek. The appropriators in Wyoming joined 
 together in a suit for an injunction to quiet their title to the waters 
 in that stream against the Colorado citizens and appropriators, and 
 that is the case which is now before the court. The title of 
 
 3858 that case is Hoge et al. vs. Eaton et al. Another similar con- 
 troversy arose some years ago and still exists — it is not in 
 
 court but probably it will be soon — between appropriators in a simi- 
 lar case along the Laramie river iu Wyoming and subsequent ap- 
 propriatois in Colorado who took the water out of the Big 
 
 3859 Laramie and turned it over into the valley of the Cache la 
 Poudre. Such controversies as these might arise on any 
 stream flowing from the State of Colorado into the State of 
 
 3860 Wyoming. If thejclaim be made and enforced that any indi- 
 vidual State has a right of absolute ownership in the body of 
 
 the water arising in any of those streams that flow from such State 
 into the adjoining States, then that claim might seriously affect the 
 Government reclamation service. I hardly feel competent to state 
 what would be the wisest policy to pursue under such conditions, 
 because it is an almost inconceivable state of things that 
 
 3861 such a claim should be seriously maintained any more. If 
 such a claim as that were made and pressed I think it would 
 
 be generally disastrous all round — disastrous to the reclamation 
 service and to everybody. (Objection by defendants.) 
 
1040 
 
 the state oe Kansas vs. 
 
 Cross-examination on behalf of defendants. 
 
 By Mr. Dawson : 
 
 When I said that I thought a large part of the development in 
 Wyoming might possibly have been made under the riparian doc- 
 trine I did not mean that such development could have been made 
 under what is known as the extreme riparian doctrine that has pre- 
 vailed in many of the Eastern and Middle States. I do not 
 
 3862 think it could. I do not know that I would consider the modi- 
 fied riparian doctrine as in any degree equivalent to the doc- 
 trine of prior appropriation. As I understand the modern riparian 
 doctrine to allow a reasonable use of the water by all ot the riparian 
 owners on the stream, it appears to me to give them equal rights 
 irrespective of the time they began to use it. Thus it would have 
 the effect of making them share among themselves any shortage of 
 water in a dry season. I understand by the extreme riparian doc- 
 trine that prevails in many of the Eastern and Middle States that it 
 requires the upper riparian owner to let the water flow undimin- 
 ished in quantity and unimpaired in quality to all the lower ripa- 
 rian owners, subject only to what are called the natural and neces- 
 sary uses — domestic uses, the watering of cattle, etc. — and 
 
 3863 this does not include irrigation as we understand it in the 
 arid region. Under that doctrine irrigation in Wyoming 
 
 could only be carried on by sufferance or permission on the part of 
 the lower riparian owners all the way down the stream ; but aside 
 from that it could not be used as a matter of right at all. 
 
 The development in Wyoming of the agricultural land has been 
 brought about by means of irrigation under the doctrine of appro- 
 priation, except a very small and inconsiderable amount. I do not 
 think even this development could have been brought about under 
 the modified doctrine of riparian rights, for the reason that nobody 
 would want to invest any considerable sum of money or do any con- 
 siderable work by mere sufferance, knowing that their rights are 
 liable to be taken away from them at the pleasure of lower own- 
 ers. Such a doctrine would throw such uncertainty around the 
 whole matter that I think nobody would go to the expense 
 
 3864 and trouble to make the works necessary for irrigation. It 
 is true that aside from the advantages of irrigation by 
 
 the reclamation of lands in the arid regions the soil often per- 
 mits more intensive cultivation and the raising of much more 
 valuable crops than where the water cannot be controlled b}' 
 the cultivator. It is along these lines that I said the doctrine of ap- 
 propriation would be of more advantage, even in the humid States, 
 if it were to be balanced against the extreme doctrine of riparian 
 rights. It is a sort of insurance against drouth and unusually small 
 rainfall. The irrigation of land also acts as a fertilizer of the land. 
 At the time the riparian doctrine grew up in the United States there 
 was very little irrigation, comparatively, in the United States. There 
 was none at all unless it was in New Mexico and Arizona and some 
 
THE STATE OF COLORADO ET AL. 
 
 1041 
 
 of those countries that were settled, in the southwestern por- 
 
 3865 tion. The use of the streams for navigation, commerce and 
 manufacture was at that time the chief use to which the 
 
 waters were put, aside from the necessary uses for domestic purposes. 
 I think the use of the streams in the United States has become less 
 important, comparatively, in the last twenty-five or thirty years as 
 a means of conveying the commerce of the country than formerly, 
 and this of course is because of the building of railroads. The great 
 objection to the doctrine of riparian rights in the humid States, if 
 any would spring from the adoption of such a doctrine, is that it 
 does not take into consideration the question of waste in any respect 
 and does not put any value on water. The harmful influence of 
 the doctrine of appropriation in my opinion, in the humid States, 
 would be largely theoretical ; that is, it might affect navigation in 
 some degree. It does not seem to me that this would be probable 
 under the conditions named where the use of water would be 
 
 3866 necessarily slight and the streams are naturally large. My 
 chief reason for stating a while ago my preference for the 
 
 doctrine of appropriation even in the humid regions was that this 
 doctrine puts a higher value on water than the other doctrine does 
 and takes the element of waste into consideration, both of which are 
 very important factors. I have noticed other streams besides the 
 Platte where the late flow of water has been improved by the irri- 
 gation of lands at an earlier period in the season. That is generally 
 true, I think, of all the streams in the arid region that I have any 
 knowledge of. 
 
 I was located on the Platte river near Grand Island, Nebraska, 
 off and on from the middle of April to the latter part of July in the 
 year 1880. I don’t think I was down to the river close enough to 
 observe it ver\' well until some time in May, and the water was very 
 low. There were only here and there channels running between 
 dry banks of sand all the way across the stream. I don’t remember 
 that there was very much difference in the appearance of the river 
 from that time until I left in July. It was perhaps a little 
 
 3867 lower at the latter time. The amount of water used for irri- 
 gation on the tributaries of the Platte above that point has 
 
 been very much increased since that time. There was very little 
 irrigation indeed in Wyoming then and nothing like as much in 
 Colorado in the valleys of the Platte. I do not remember seeing the 
 stream at this point since 1901. I have ridden along the banks of 
 the Platte river in cars nearly every year from 1889 up to the pres- 
 ent time, and of course have noticed it in a general way, and I 
 couldn’t say that I noticed any great difference in that stream dur- 
 ing those years. It seemed to me to maintain its volume in about 
 the same condition. The irrigation on the tributaries of the Platte 
 commences early in the spring and continues right along through 
 the spring and summer to as late as August now by direct ir- 
 
 3868 rigation, and from the time it is put on the lands at the head. 
 
 66—7 
 
1042 
 
 THE STATE OF KANSAS VS. 
 
 waters it is seeking its way back to the stream, that is, where it is 
 put on in large quantities. 
 
 The general rule is that the use of water for irrigation tends to 
 equalize or level up the flow of the water in the streams that I am 
 familiar with. Of course there are streams where the amount of 
 land is proportionately large to the amount of water, where I think 
 the soil absorbs practically all of it. It does not evaporate nor give 
 back any appreciable quantity. But those streams are very few and 
 they have not come under my observation. This land that has been 
 reclaimed by irrigation in Wyoming, if it were deprived of water for 
 irrigation the best of it, perhaps, would be worth seventy-five or 
 eighty cents an acre and the worst of it perhaps ten cents an acre, 
 and it would vary between those figures. That is the going price of 
 dry land. Taking the actual area of land in Wyoming that is well 
 irrigated, 1 think perhaps a fair average value would be from fifty 
 to sixty dollars an acre. That is not allowing for waste por- 
 3869 tions that are not covered. If these lands were deprived of 
 water for irrigation there are not many towns and cities of 
 Wyoming that could exist at all. Others would be small hamlets sup- 
 plying the range country and sheep interests, and as to population I do 
 not believe there would have been any considerable increase in popula- 
 tion since 1880 outside of the coal mining industry there and possibly 
 some increase in the sheep raising industry if it had not been for 
 irrigation. If the strict riparian doctrine were now enforced 
 and the people living on the lower reaches of the stream made com- 
 plaint and stopped the use of water there it would drive a large part 
 of the population out of the State, unquestionably, and I think not 
 more than one-third of the people now there would continue to live 
 there and prosper if the strict riparian doctrine were enforced, and 
 there would be no prospect of future growth under such conditions 
 except in the mining industry and other things that do not depend 
 in any sense on agriculture. 
 
 Redirect examination on behalf of intervenor. 
 
 By Mr. Campbell : 
 
 3871 I have read the Carey act and have a general knowledge 
 of its features and terms. As I understand its terms, its 
 
 undertakings are undoubtedly based entirely on the appropriation 
 of water, the securing of water rights sufficiently to reclaim the land, 
 and that it is an indispensable condition in carrying out any under- 
 taking under the Carey act. I believe it is a fact that before 
 
 3872 they can get a complete title from the Government they must 
 show that the land has been irrigated. If the doctrine of 
 
 riparian rights were strictly enforced the land could not be irri- 
 gated. 
 
 Development by irrigation has not reached its highest stage by 
 an} 7 means in Wyoming in respect to lands already reclaimed. 
 From my own experience and observation I believe two or three 
 
THE STATE OF COLORADO ET AL. 
 
 1043 
 
 times as much, water is now used on the land that is irrigated as in 
 ver}' many cases would be necessary under more careful methods, 
 and my judgment is that irrigation in Wyoming is still in a pro- 
 gressive state. It is just in its infancy. I think the first irri- 
 
 3873 gation act proper that was passed in Wyoming was in 1875. 
 I did not live in Wyoming prior to 1880, but I know of lands 
 
 there that were well sodded and in cultivation as hay lands at that 
 time that obviously had been irrigated many years prior to any 
 legislation in respect to irrigation, and I know that is historically 
 true that lands had been cultivated for hay by irrigation there many 
 years at that time. The usages and customs in Wyoming in respect 
 to using the water for irrigation purposes prior to any legisla- 
 
 3874 tion were that the people took it as a matter of course and ap- 
 plied it as they pleased. Waters are being appropriated from 
 
 the Snake river in both Wyoming and Colorado, and that is one of 
 the rivers on which difficulties may arise between citizens of 
 
 3876 Wyoming and citizens of Colorado. Where water is taken 
 from a stream which heads in Colorado by the citizens of 
 
 Colorado and is taken over a divide and all of it goes into another 
 water shed the return or seepage waters do not go back to the stream. 
 I think they obey the law of gravitation and go on down. 
 
 I have been over a great part of Colorado, a considerable part of 
 Idaho, a small part of Utah and a small part of Montana, and 
 eastern Oregon and Washington, western Nebraska, Soutli Dakota 
 and Kansas, and the conditions mentioned in these States corn- 
 
 3877 pare with the conditions in Wyoming. They are very 
 similar. There are different degrees of rainfall, of course, 
 
 and consequently variations in climate, but generally speaking 
 there is a similarity of conditions all over that region. The origin 
 of the bulk of the property in the States just mentioned is based 
 almost wholly upon irrigation and the doctrine of the appropriation 
 of water. 
 
 Yes, it is quite true that in many instances there is an under- 
 flow in connection with the streams in the arid region that is much 
 greater than the superficial flow. This is true as to lower portions 
 of the Platte and some portions of the Laramie river. The fact 
 that the Platte below the junction of the North and South Platte 
 does not show any perceptible decrease from irrigation in Wyoming 
 and Colorado might not be affected by what is known as the under- 
 flow coming out above and supplying that. Irrigation in Wyoming 
 and Colorado in no way affects this underflow. The seepage water 
 of course follows the bed-rock or clay sub-surface, and in most in- 
 stances comes in below the bed of the stream, so that it would first 
 be noticeable in the underflo w, and if there were more water thrown 
 into the stream than might flow in the sand and gravel, it would 
 appear on the surface as a superficial flow. 
 
1044 
 
 THE STATE OF KANSAS VS. 
 
 Recross-examination on behalf of defendants. 
 
 Bv Mr. Dawson: 
 
 3878 In speaking of the underflow sometimes being greater than 
 the superficial flow, 1 have made no measurements in that 
 regard, but I do know as a matter of fact that the investigations of 
 experts show that the water moves very slowly through the sand 
 underneath the surface, and that it would take a stream — if we can 
 call it such — many times the size of the surface stream, when flow- 
 ing through the sand, to equal in quantity that lesser stream flowing 
 on the surface. Especially would this be true through fine sand, 
 and the beds of these streams when you get out on the plains are 
 made up of fine sands, that is, most of them. Some of them are 
 made up of boulders and coarse gravel, but the farther you go down 
 from the mountains the finer the sand. 
 
 Recross-examination on behalf of complainant. 
 
 By Mr. Ashbaugh : 
 
 3879 There is an underflow to the Platte river, and I judge it 
 has always been there as a part of the natural flow of the 
 
 stream and comes from the upper part of the stream necessaril} 7 . 
 
 There are two Carev acts, one of them being a State law of Wyo- 
 ming and the other one being an act of Congress, and upon my ex- 
 amination I referred to the act of Congress. This act of Congress 
 became in force in the State when its provisions had been accepted 
 by the State. 
 
 3880 I would not go to the length of saying that if a State 
 claimed the right to own and control all the waters within 
 
 its territory then the reclamation act of 1902 could not be success- 
 fully carried out along those streams that do not flow from one 
 State into another. I think it would very serioush 7 modify the 
 plans, but it might be possible to cany it out very beneficially. 
 And I think that it could easily be carried out upon streams 
 
 3881 that flow from one State into another. All the streams I am 
 acquainted with have accessions in the lower States as well 
 
 as in the upper States and are in large part supplied by snows and 
 tributaries and springs in the lower States. Upon the supposition 
 just made I think the reclamation act would do no good in Wyo- 
 ming as to any water that fell or came from melting snows in Colo- 
 rado except in cases where the water could not be impounded and 
 held back, and I think this is good as a general proposition in all 
 those States similarly situated. 
 
THE STATE OF COLORADO ET AL. 
 
 1045 
 
 3882 S. C. Downing, Denver, Colorado. 
 
 Direct examination on behalf of intervenor. 
 
 By Mr. Campbell : 
 
 I am the secretary of the Wyoming Central Land & ^Improve- 
 ment Company and also of the Pioneer Canal Company, oper- 
 ating in Wyoming. I have been secretary of the two companies 
 for a little over two years. My father was secretar}^ before I was, 
 and I have been familiar with the companies for nine years. The 
 Wyoming Central Land & Improvement Company’s works are lo- 
 cated on the Big Laramie river, and all the waters of that river ex- 
 cept the waters which come in from the Little Laramie head in 
 Colorado. About twenty thousand acres of land are irrigated under 
 the ditch of that company. An appropriation was made for 
 
 3883 two thousand acres under that ditch in about 1869. For the 
 lands under the Pioneer canal the first appropriation was 
 
 made in the fall of 1878 and spring of 1879, the canal being 
 enlarged in the spring of 1886. There are about twenty thousand 
 acres under both the Wyoming Central Land & Improvement Com- 
 pany’s canal and the Pioneer Canal Company’s. Both of these 
 canals take water from the same stream. There have been appro- 
 priations of water from the Laramie in Colorado subsequently to 
 that made by these two companies, and the waters have been ap- 
 plied to a beneficial use in Colorado. The appropriation of waters 
 in Colorado from this stream during a number of years has made us 
 short of water, and if the ditches being built now by Colorado 
 parties are carried through we will have but a very small quantity 
 of water. (Objection by defendants.) And this would make the 
 twenty thousand acres of land now being irrigated compara- 
 
 3884 tively of no value. These lands are now worth from twenty 
 to seventy-five dollars an acre. If this threatened appropri- 
 ation in Colorado should be carried out they would be worth from 
 about seventy-five cents to one dollar and twenty-five cents an 
 acre. (Objection by defendants.) 
 
 Cross-examination on behalf of complainant. 
 
 By Mr. Ashbaugh : 
 
 3885 Besides the twenty thousand acres under the two ditches 
 spoken of there are a good many thousand acres that would 
 
 be situated the same as we are, which we do not own. (Objection 
 by defendants.) If these ditches in Colorado should be constructed 
 as proposed there would be approximately two hundred thousand 
 acres of lartd in Wyoming along the Laramie river affected by it. 
 (Objection by defendants.) That would also make the lands sit- 
 uated in Wyoming along other and similar streams about which I 
 
1046 
 
 THE STATE OF KANSAS VS. 
 
 have testified comparatively of no value should the same condi- 
 tions be carried out. (Objection by defendants.) 
 
 3886 I am not familiar enough with the conditions existing in 
 Wyoming outside of Albany county to state how many acres 
 there would be in all, but in Albany and Laramie counties, not in- 
 cluding the land irrigated from the Little Laramie river, there 
 would be about two hundred thousand acres thus affected. (Objec- 
 tion by defendants.) In all the rest of the State there would be a 
 great deal more than that and in the whole State perhaps in all 
 nearly a million acres. (Objection by defendants.) 
 
 Cross-examination on behalf of defendants. 
 
 By Mr. Dawson : 
 
 3887 I know that measurements have been taken at the State 
 line on the Big Laramie river for a number of years past and 
 
 that there has been found a considerable stream of water flowing 
 into Wyoming each year, and the ditches of the ditch companies 
 spoken of are dependent on this water in that stream. There are 
 several tributaries entering the stream before it reaches the heads 
 of our ditches after it passes the State line. They are very small 
 creeks. One of them is known as Fox creek, and I am not familiar 
 with the names of the others. They are small creeks flowing 
 largely in the spring of the year. The head of the Pioneer canal is 
 about ten miles from the Colorado and W}mming line, in Wyoming. 
 The heads of the otherditches are between thirty-four and forty miles, 
 on the Big Laramie river. The Big Laramie river has been only 
 
 3888 within the last four years adjudicated ; in fact it is in court 
 now ; and there have been no certificates issued for any ex- 
 act amount of water. We proved up on our rights for so many acres. 
 We will be allowed under the Wyoming law a cubic foot of water 
 for each seventy acres irrigated, and when the final decree is entered 
 we will have to put in our measuring devices. Up until the present 
 time all the appropriators of the Big Laramie river have worked in 
 harmony. When there was a shortage we would save all the water 
 we could and turn it in for the lower users and get along the best 
 way we could. We have secured a decree, but it is pending on ap- 
 peal. We have secured a final decree from the board of con- 
 
 3889 trol, and the appeal is from that decision, and as to what the 
 action of the Colorado appropriators may be after we have 
 
 once secured a settled decree I am not able to state. We have not 
 been able up to this time to go to any Colorado water user and say 
 that we have a settled and determined decree unappealed from for 
 any given amount of water. We have been using that water for a 
 good many years for irrigation under the customs and systems of 
 Wyoming. 
 
THE STATE OF COLORADO ET AL. 
 
 1047 
 
 3890 Gibson Clark, Denver, Colorado. 
 
 Direct examination on behalf of intervenor. 
 
 By Mr. Campbell : 
 
 I am a lawyer. I first moved to what is now Wyoming in Decem- 
 ber, 1866. I lived in the Territory until 1872. For the next suc- 
 ceeding eleven years I lived in Nevada and Utah and returned to 
 this part of the country and located at Fort Collins, Colo- 
 
 3891 rado, where I remained for two and a half years, and in Decem- 
 ber, 1885, I went to Cheyenne, Wyoming, and have been 
 
 there ever since. In 1871 I was a member of the legislature of 
 Wyoming. In 1892 I. was elected a member of the supremem court 
 of the State, which position I held until September 21, 1894, and for 
 the succeeding four years was United States attorney for the district 
 of Wyoming. In 1866 when I first went to what is now Wyoming 
 there had been very little irrigation to speak of. There were people 
 at that time in the neighborhood of Fort Laramie where I lived who 
 had engaged to some extent in the irrigation of gardens for the pur- 
 pose solely of producing vegetables and things for the table, and 
 there was some irrigation on what was known as the Government 
 farm near Fort Laramie. Since 1866 there has been very consider- 
 able development of what I might term the irrigation resources of 
 the State. Many large ditches have been built and very large tracts 
 of land in some instances have been put under cultivation by a single 
 system of ditches, and in other localities very extensive settlements 
 have been made and the land reduced to farming by means of 
 smaller ditches. 
 
 3892 Speaking approximately, I should say that in the matter 
 of irrigation ditches and reservoirs from five to ten millions 
 
 of dollars, if not more, has been invested. 
 
 From general observation, I doubt if over ten per cent, of the en- 
 tire assessed value of the State is due to the irrigation of land; that 
 is because of the fact that lands are assessed at an extremely low 
 valuation. I should think that forty per cent, if not more of 
 
 3893 the property valuation in Wyoming is due to the cultivation 
 of lands by means of irrigation. I would like to explain in 
 
 reference to my answer in regard to the assessed valuation, that I 
 know of instances where lands are worth and for the purpose of pay- 
 ing an inheritance tax were assessed at $40 an acre that were placed 
 on the assessment roll at a valuation not to exceed $2 or $2.50 an 
 acre. My estimate of the value of land per acre, that has been irri- 
 gated, runs from thirty dollars to fifty dollars, according to the 
 locality and the facilities for market. 
 
 The development of the irrigation resources of Wyoming is in its 
 infancy. It is only within the last two or three years that the 
 people in Wyoming who are interested in the development of the 
 irrigation resources of the State and who believe and realize that 
 
1048 
 
 THE STATE OF KANSAS VS. 
 
 the permanent development of the State depends on that have been 
 able to overcome the obstacles thrown in their way by what has 
 heretofore been the dominant interest — the cattle grazing interest ; 
 and to-day the prospect of very great development in Wyoming is 
 excellent, and many enterprises outside of the enterprises of the 
 Government under the reclamation act are becoming going concerns 
 engaged in the development of the State. I do not think irrigation 
 has reached its highest development to-day, nor one-tenth of what it 
 will be in the next ten or fifteen years. 
 
 3894 In respect to the number of acres of land which can be 
 reclaimed by the unused waters of the streams of Wyoming 
 
 if it is taken from the streams and applied to the land, from 
 my own observation and from inquiry I think it is safe to 
 say that at least fifteen per cent, of the lands of Wyoming 
 can be, by means of its water resources, reduced to cultivation 
 through irrigation. There are in the neighborhood of sixty-five 
 million acres in the State. Just as soon as the lands are brought 
 under some irrigation system, without any improvements on them, 
 and without breaking the sod, they would be worth in the neighbor- 
 hood of $30 an acre on an average. In my judgmennt if 
 
 3895 all the lands of Wyoming which could be irrigated by the 
 use of all the water resources of the State were under irriga- 
 tion it could easily support a population of a million people. It has 
 now a population of probably about 120,000. Without the right to 
 appropriate water from the streams for beneficial purposes it would 
 have been utterly and absolutely impossible to have created the 
 property which now rests upon irrigation in Wyoming, and if the 
 doctrine of riparian rights were invoked and sustained there it would 
 have the effect of absolutely prohibiting the future development of 
 the State either by individual enterprise or by the Federal Govern- 
 ment under the reclamation act. The landed property immediately 
 adjacent to the streams and properly called strictly riparian lands 
 might continue to have some value, but the other lands away from 
 the streams, which are the best lands in the State, the best lands in 
 any irrigated country, would become simpl} 7 pasture land and could 
 
 not be used for any other purpose, and would be worth from 
 
 3896 fifty cents to $1 or $1.25 an acre. The existing population 
 would have to get out. Probably twenty-five per cent, of the 
 
 people of the State would have to leave. 
 
 I am familiar with the act of Congress known as the reclamation 
 act, and also the act of Congress known as the Carey act. If the 
 doctrine of riparian rights were invoked in Wyoming I do not think 
 it would be at all feasible to make either of these acts effective. The 
 expense of acquiring from riparian owners the right to use the 
 water would be so great that it seems to me it would be impossible 
 to carry out either one of these acts. 
 
 I have paid considerable attention to the subject of irrigation, 
 botli as a lawyer and a citizen. I have been verv much interested 
 in it. 
 
THE STATE OF COLORADO HT AL. 
 
 1049 
 
 3897 I should say that the lands lying farther from the stream 
 and up on the high lands above the immediate valley of the 
 
 stream are the ones upon which you can get the best results generally. 
 Experience throughout the entire country demonstrates that they are 
 very much the best lands. The lands down in the valley oi‘ the 
 stream are moister and the additional water that is placed in them 
 for the purpose of making them sufficiently productive generally has 
 had the result in the course of time of making those lands produce 
 a very rank growth of grass. They become soggy. There is en- 
 tirely too much water in them and they do not continue to be so pro- 
 ductive as the lands better drained — the high lands. I am not a 
 practical irrigator. I never irrigated an acre of land in my 
 life. 
 
 3898 I have paid some attention to this present controversy be- 
 tween Kansas and Colorado. I know of the contention that 
 
 Colorado makes — that as a sovereign State she owns the water be- 
 cause of a provision in her constitution. Wyoming has a similar 
 provision in her constitution, practically. The Wyoming people do 
 not claim that they are entitled to all the waters irrespective of prior 
 appropriations beyond the State line. I think the consensus of 
 opinion among lawyers of experience in Wyoming — and there has 
 been some expression, perhaps something a little more than that, in 
 one decision of our supreme court — to the effect that the practical 
 effect of the declaration in our constitution — the declaration on the 
 part of the people of the State that the State was the owner of all 
 the waters flowing in natural streams or in lakes, etc. — that its prac- 
 tical effect was to declare that the waters of these natural streams 
 were simply publici juris , and that the State had over those waters 
 the same right for the purposes of irrigation, its appropriation and 
 distribution, diversion, etc., the same rights which the State 
 
 3899 had over the navigable streams under the rule of the common 
 law. No, we never believed and we do not now believe that 
 
 that mere declaration in our constitution gave to the State or was the 
 assertion on the part of the State of a property right in the water 
 such as the State acquires in or to lands which, for instance, had 
 been granted to it by the Government or buildings which have been 
 erected on such land or anything of that sort, but simply that it 
 gives the State the right to control these waters so far as they may 
 be applied to beneficial use. 
 
 The Big Laramie river in Wyoming has its source in Colorado, and 
 I think possibly the South Platte to some extent. 
 
 There is a company known as the Wyoming Development 
 Company, of which I am the attorney. Its property is situated 
 about a hundred miles north of Cheyenne in the neighborhood of a 
 town on the Colorado & Southern railroad called Wheat- 
 
 3900 land. There are sixty-three thousand to sixty-five thousand 
 acres of land under the irrigation system. I believe about 
 
 twenty or twenty-two thousand acres are now under actual cultiva- 
 tion. The water for these lands is taken from the Laramie river 
 
1050 
 
 THE STATE OF KANSAS VS. 
 
 which heads in Colorado. The appropriation in Wyoming dates 
 back to the 16th day of May, 1883. I understand that appropri- 
 tions of water have been made from that stream in Colorado subse- 
 quently to that appropriated by the Wyoming Development Com- 
 pany. If the contention of Colorado, that it has the right to take all 
 of the water from the Laramie river in Colorado should be sus- 
 tained, it would be disastrous, absolutely so, to the Wyoming De- 
 velopment Company enterprise, and destructive of all the property 
 rights invested in that, or the greater part of them. 
 
 In answer to your question as to whether the people of Colorado 
 when they are adjudicating water rights pay any attention what- 
 ever to the appropriations from the streams in other States, I might 
 answer that as a matter of law that is an absolute impossibility. 
 
 3901 I know what is understood as the arid region. I think it 
 would begin about the 102d meridian. 
 
 The Wyoming Development Company has invested now about 
 $750,000 in cash, on which they have had no returns during the 
 last twenty years. In regard to the amount of population that this 
 enterprise supports, there must be at least 2000 or 2500 people on 
 what is called the Wheatland flats now, and the number is increas- 
 ing dixy by day. 
 
 There are other appropriations of water from the Laramie river 
 in Wyoming from near Fort Laramie to the Colorado line. The 
 number of acres so irrigated must be in the neighborhood of 
 
 3902 200,000. If all of the waters should be taken in Colorado 
 from the Laramie river, the greater part of this 200.000 
 
 acres, except that immediately on the stream, would become abso- 
 lutely arid, incapable of supporting anything. The conditions pre- 
 vailing in Wyoming are about the same throughout the entire arid 
 region, so far as I have observed, from Montana down throughout 
 New Mexico and Arizona. In my best judgment there could not 
 be any future development of any practical account in the arid 
 region under the doctrine of riparian rights. When I came 
 
 3903 to what is now Wyoming in 1886 it was a part of Dakota. 
 It was the usage and custom at that time to use the waters of 
 
 the streams for irrigation purposes irrespective of any law on the 
 subject. 
 
 Cross-examination on behalf of complainant. 
 
 By Mr. Ashbaugh: 
 
 If Colorado under the State sovereignty idea as to the control of 
 water should take all of the water of the Laramie river in Colorado it 
 would practically destroy the value of at least 200,000 acres of land 
 now under irrigation in Wyoming. There are other streams rising 
 in Colorado and flowing into Wyoming, and I did not 
 
 3904 include the North Platte river in my drainage area of the 
 Laramie as given. And the same effects would unquestiona- 
 bly apply also to streams flowing from Wyoming into other States. 
 
THE STATE OF COLORADO ET AL. 
 
 1051 
 
 No sir, we do not claim that it is the construction placed upon our 
 constitution by the people of the State of Wyoming that they own 
 and control the waters within its borders so as to take those waters 
 from a prior appropriator in another State. I do not know 
 
 3905 of any bottom lands along any of the streams vvitli which I 
 am familiar, particularly the Laramie or the North Platte, 
 
 that would produce, naturally, any kind of a crop except a hay crop. 
 They are not such lands as would be compared at all with the lands 
 through the Central, Middle and Eastern States along the river 
 banks. The conditions were entirely different from what they are 
 back in the humid States. 
 
 3906 If I understand the doctrine of riparian rights it is this — 
 that one who owns lands which abut upon a stream owns 
 
 those lands to the thread of the stream and that he has the right to 
 demand that the waters of that stream flow as they have been ac- 
 customed to flow, and that his right does not depend upon use or 
 disuse, and that his right in and to the waters is not an easement, 
 nor is it an appurtenance, but is t fie land itself, and he has the right 
 absolutely to demand that those waters flow as they were accustomed 
 to flow. There were no lands in the State of Wyoming that were 
 saturated by the waters of those rivers in the natural state before 
 irrigation. I never heard, except once only, anyone claim or urge 
 that the doctrine of riparian rights should be spread over the State 
 of Wyoming, and that claim was made by an attorney who 
 
 3907 had just come from Iowa in about 1887 or 1888, and he 
 relied upon some decision from the supreme court of Iowa. 
 That is the only time I ever heard it in my life. 
 
 3908 By looking at things in Wyoming as they are I am unable 
 to see how the application of what you term the “Colorado 
 
 doctrine ” could affect in any way whatever the operation and effect- 
 iveness of the act of Congress providing for the reclamation by this 
 fund of the arid lands. The reason for my answer lies in the fact 
 that all of the waters of the Laramie river have been appropriated, and, 
 very largely, the waters of the North Platte river. I do not think 
 there is the remotest possibility of the Government ever being able 
 to affect the Laramie river or the section of country drained by it 
 by the reclamation act. It cannot be made applicable to that par- 
 ticular section. If there were lands yet to be reclaimed on the 
 Laramie and other rivers that rise in Colorado and flow into 
 Wyoming, in such a case I do not think the Government of the 
 United States could acquire the use of the water. 
 
 Cross-examination on behalf of defendants. 
 
 By Mr. Hayt : 
 
 3909 I lived at Fort Collins, in Larimer county, Colorado, from 
 1883 to 1885, and I should think at that time it had a popu- 
 
 3910 lation of 2000 to 2500 people, and thelcounty about 9000. Irri- 
 gation was carried on.quite extensively in that county in 1885. 
 
1052 
 
 THE STATE OF KANSAS VS. 
 
 I visited it again in 1896 and I found a great increase in popula- 
 tion and a large increase in material wealth that in my judgment 
 was attributed to irrigation very largely. When I left Fort Collins in 
 December, 1885, I located in Cheyenne, and it was the general im- 
 pression of the people around in the neighborhood of Fort Collins 
 that the Cache la Poudre river had been utilized to an extreme ex- 
 tent and that not only could no more land be put under cultivation 
 bv means of irrigation but that more land was under the 
 
 3911 ditches already constructed than could be successfully filled 
 with water at that time. The ditch farthest north on the 
 
 Cache la Poudre river was a ditch that ran just through the out- 
 skirts of the little town of Eaton, seven miles north of Greeley, which 
 is also on the Cache la Poudre. Since then the ditches have been 
 extended until the ditch farthest north now is a little bit north of 
 the town of Ault, which is something more than four miies north of 
 Eaton. Observing those ditches, I should conclude that there has 
 been a strip of country four miles in width north and south by 
 probably twenty-five or thirty miles in length east and west added 
 to the irrigable area existing at the time I left Fort Collins. That 
 has resulted, in my judgment, from a more economical use of the 
 water and from a better knowledge of the methods that would bring 
 the best results from irrigation, and from the enterprise and energy 
 and earnestness and intelligence of the people of that section of Col- 
 orado. untramelled by too many constitutional provisions and per- 
 mitted to work out their own destiny without the aid of State officials 
 who are selected to look after the distribution of the water 
 
 3912 of the streams. I may say that I have relied upon the 
 fact which within my own knowledge has occurred in Colordo 
 
 in the development of her irrigation resources as a reason for depre- 
 cating the system of so-called beneficent laws which have been in 
 operation in the State of Wyoming. I have spoken of the country 
 in Colorado in and about the town of Eaton, and I am familiar with 
 that country, and with the Greeley country generally, and have 
 passed through it time and again within the past few years. From 
 all that I have ever observed, from conversations with people whose 
 business it is to look after such matters in order to gather reliable 
 statistics concerning them, the country from Eaton to Greeley is the 
 most thoroughly developed, the most highly cultivated portion of 
 the United States. 1 have known the people of that country around 
 there since 1871, and they have taken the arid lands which were in- 
 capable of supporting anything, except forty acres perhaps would 
 support a cow, and they have made themselves, as I look upon them, 
 the richest agricultural people within the limits of the United States, 
 and the agriculture in that locality is absolutely dependent 
 
 3913 upon irrigation. If they were entirely deprived of the use 
 of water lor the purposes of irrigation the lands would be re- 
 duced to an arid waste, practically. The people would be reduced 
 to poverty. They would either starve or have to get out and go at 
 some other business. In Wyoming we can put large areas of land 
 
THE STATE OF COLORADO ET AL. 
 
 1053 
 
 under cultivation, certainly every eighty acres of which will support 
 a family of five or six people in comfort, and add tremendously to 
 our population and make it a great and rich country as nothing else 
 in the world ever can do but the judicious and economical 
 
 3914 use of water for the purposes of irrigation. 
 
 I think the provisions of the Carey act, when carried out, 
 so far as it is possible to tell at this time, will in all human prob- 
 ability go through and be successful. They have been generally 
 successful. Of course you will understand that under the operation 
 of the Carey act one prime necessity in making it so is getting people 
 to come in from other localities and settle upon these lands, which 
 they would receive free, paying only for the water right, and it is be- 
 coming easier and easier now as time goes on to get people to come in 
 and make homes on these lands. 
 
 3915 I am interested as an attorney in the success of the Wyo- 
 ming Development Company, and I think the success of that 
 
 company depends upon its right to use the water of the Laramie 
 river for the purposes of irrigation. I am not a stockholder in 
 this company. And I have always entertained the views that I 
 do now about what is now called the “Colorado doctrine.” I never 
 heard it called so before until I came down here this time, and I 
 didn’t know it was a Colorado doctrine, but with respect to appro- 
 priators along these streams which arise in one State, and flow into 
 another, the climatic conditions in both States being such as to 
 render irrigation necessary in order that the resources of the soil 
 might be utilized, I have always entertained the idea I now express. 
 I have had, commencing as long ago as 1893 or 1894, many contro- 
 versies with our State officials over the rights of the people who 
 have settled on the North Platte river and taken out irrigation 
 ditches and irrigated their lands. It so happened that 
 
 3916 although they had a second chance at the stream, they com- 
 menced to utilize the waters of that stream, commencing 
 
 right up at the Wyoming line, long before the Wyoming people 
 woke up to the idea that there was any use in attempting to do any- 
 thing of the kind on the lands along the stream in Wyoming; and 
 my opinion always has been and was from the beginning that those 
 people in Nebraska acquired a legal right to the use of the waters 
 of that stream which would be superior to any right which could be 
 acquired thereafter by the people of Wyoming, and that the courts 
 of Wyoming would feel their obligation to do right sufficiently 
 strong to protect the people of Nebraska in what I considered to be 
 their lawful rights. And I am telling you that my answer with re- 
 spect to that is in no degree influenced by the fact that I am 
 
 3917 the attorney for the Wyoming Development Company. I am, 
 in that capacity, interested in the result of that controversy, if 
 
 there is such a controversy. In regard to the effect on the lands in 
 Wyoming if it were possible for Colorado to stop the flow of the water 
 in the Laramie river, as asked me by counsel for the State of Kansas, I 
 would say that the ability of Colorado to stop the flow of the water 
 
1054 
 
 THE STATE OF KANSAS VS. 
 
 in that river is another phase of the situation, and I am very much 
 inclined to doubt its ability to do it. Even if the river should be 
 dammed, the dam would probably overflow in the course of time. 
 Under the doctrine of riparian rights as I understand it, under the 
 decisions as I understand them, the riparian owners may use the 
 water to some extent for the purposes of irrigation. Some of them 
 have laid down some pretty stiff rules about that. That means 
 that the water shall be allowed to flow as it has been accustomed to 
 flow, undeteriorated in quality and unaffected in quantity, but I 
 think under the great weight of authority under the doctrine of 
 riparian rights the riparian owner may use the water for agriculture 
 and for domestic purposes provided he does not seriously diminish 
 its quantity or impa ri its quality. 
 
 3918 In regard to the constitution of the State of Wyoming be- 
 ing practically the same as the constitution of the State of 
 
 Colorado, so far as the ownership of the waters of the natural streams 
 of the State is concerned, I know that the first section of the article 
 on irrigation declares that the waters of all the natural streams and 
 lakes is the property of the State, and I understand that such is in 
 substance the constitutional declaration of Colorado. I think, now 
 that you call my attention to it, the declaration in the constitution 
 of Colorado is that the waters of the natural streams are the 
 
 3919 property of the public, subject to appropriation as may be 
 provided by law, or something to that effect. 1 may be mis- 
 taken entirely about it. 
 
 Recross-examination on behalf of complainant. 
 
 By Mr. Ashbaugh : 
 
 My recollection is that the irrigation began around Greeley prior 
 to 1880, and I know that in 1883 the progress of irrigation along the 
 Cache la Poudre river had so far advanced that it had become 
 necessary to adjudicate the water rights along that stream. 
 
 3920 I think the town of Greeley was located in December, 1871, 
 and that the development of irrigation that I have spoken 
 
 of was subsequent to that time. It was my opinion from the very 
 beginning that if parties in Nebraska had appropriated the waters 
 of the Platte river and used them for beneficial purposes they would 
 have a superior right to subsequent appropriations of the same 
 waters in the State of Wyoming under the constitution and laws of 
 Wyoming, and of course under similar circumstances I would hold 
 that the same view as to prior appropriators in Kansas as against 
 subsequent appropriators in Colorado under their constitution and 
 statutes should prevail. 
 
THE STATIC OF COLORADO ET AL. 
 
 1055 
 
 3921 J. A. Van Orsdel, Denver, Colorado. 
 
 Direct examination on behalf of intervenor. 
 
 By Mr. Campbell: 
 
 1 am attorney general in the State of Wyoming. I have been 
 such for seven years. I have resided in that State for fourteen years 
 next May. Before coming to Wyoming I resided in Nebraska for 
 three years. I have been over Wyoming pretty thoroughly, in every 
 county in the State, and have observed, and, to a certain extent, 
 have studied the resources and development of the State, also its 
 characteristics and capabilities. 
 
 3922 The assessed valuation of the property for last year, I 
 believe, was between forty-four and forty-five millions. Of 
 
 that valuation I should say there would be ten to fifteen per cent, 
 of it in irrigated lands. The assessed valuation is about one-third 
 of the real valuation. Directly and indirectly I should say that 
 thirty-five to forty per cent, of the property valuation of Wyoming 
 has been created by and rests upon the appropriation of the waters 
 from the streams ami the application thereof to beneficial use. Of 
 the lands in Wyoming now arid and uninhabitable and unprofitable 
 I should sav that five or six million acres can be reclaimed by the 
 unused waters of the streams in that State. Land on an average, 
 when it is reclaimed, before it is cultivated or any improvements 
 placed on it in the way of cultivation or other improvements, 
 
 3923 is worth about $20 an acre. The lands which can be 
 reclaimed would support an additional population, directly 
 
 and indirectly, of a million to a million and a half. I estimate 
 that a forty-acre tract of land well irrigated would support a family 
 of five persons. I think it would do that in this country. 
 
 I have heard the doctrine of riparian rights discussed and know 
 what the doctrine means as generally understood among lawyers 
 and laymen. Under that doctrine I do not think it would have 
 been possible to have brought Wyoming to its present development. 
 The effect of the application of that doctrine upon the future 
 development of the State would be very destructive. 
 
 I am somewhat familiar with the act of Congress known as 
 the reclamation act passed June 17, 1902, also the act of Congress 
 known as the Carey act, passed August 18, 1894. In those acts the 
 public policy of the Government is set forth to some extent in 
 its relation to the arid lands of the western countr} r . I 
 
 3924 should say that the application of the doctrine of riparian 
 rights in Wyoming would render these acts almost entirely 
 
 inoperative. There has been some development in Wyoming to my 
 knowledge under the Carey act. I couldn’t say how much. I 
 should say there has been reclaimed already under that act 
 probably ten or fifteen thousand acres, but the irriga- works 
 constructed are capable of reclaiming considerable more. Yes, the 
 
1056 
 
 THE STATE OF KANSAS VS. 
 
 act requires the taking of the waters from the stream and applying 
 them to the land and reclaiming it from a desert state 
 
 3925 so that it will produce crops. No sir, I cannot conceive of a 
 case in Wyoming where this could be done under the 
 
 doctrine of riparian rights. 
 
 There are several streams that flow into Wyoming that head in 
 Colorado — the Laramie, the Platte, 1 believe, and I think the Snake 
 river also flows out of Colorado and into Wyoming for a short dis- 
 tance. Since I have been in Wyoming there has been a great 
 
 3926 deal of development along irrigation lines, and considerable 
 of that development is along the North Platte in Wyoming 
 
 and its tributaries. The North Platte and the South Platte come 
 together at North Platte, Nebraska. I was familiar with that stream 
 below the junction prior to locating in Wyoming. I have been 
 back there frequently since I have lived in Wyoming. I own prop- 
 erty below the junction of the two rivers. I do not think the flow 
 of the river below the junction has been materially affected during 
 the last fifteen years by the taking of water out of the North Platte 
 in Wyoming and the South Platte in Colorado. I mean the aver- 
 age flow. 
 
 Cross-examination on behalf of complainant. 
 
 By Mr. Ashbaugh : 
 
 3927 The irrigators of Wyoming along the North Platte river do 
 not take all of the flow over and over again. If for two or 
 
 three hundred miles they did during the irrigating season take all 
 of the water, each succeeding ditch having capacity to take it and 
 did take it, and even the return seepage waters, I should say that 
 that would undoubtedly have an effect on the flow of the Platte 
 river. 
 
 The reclamation act can be applied to the Platte river on lands 
 lying in Wyoming, in fact there is one enterprise now under head- 
 way being applied on the North Platte river. If the Colo- 
 
 3928 rado doctrine, that she has the right to take all of the water 
 of the streams that rise within her borders by virtue of her 
 
 constitution and laws, should be applied to those streams that flow 
 from Colorado into Wyoming, it would have a serious effect on car- 
 rying out the reclamation of the lands that I have just spoken of 
 under the reclamation act. There is no doubt about that. I am 
 familiar with the constitution and the laws of Wyoming, and as to 
 the ownership of water, there is a similar provision in the Wyoming 
 constitution to that in the constitution of Colorado. 1 do not think 
 it is a correct construction of the constitution of Wyoming, nor is it 
 a construction that is now generally held, that if parties in the 
 western part of Nebraska had appropriated certain waters of the 
 North Platte river or any other river flowing from Wyoming into 
 Nebraska, Wyoming or any of its citizens would have a right to 
 
^flE STATIC OF COLORADO ET AL. 
 
 105? 
 
 subsequently appropriate all of the waters of those streams 
 
 3929 by virtue of her constitution or her laws. In fact our su- 
 preme court in a recent case has announced very clearly that 
 
 doctrine. I think that decision as announced by the supreme court 
 has been very generally accepted by the bar and the people at large 
 in the State of Wyoming. 
 
 3930 The amount of land in the State of Wyoming that was 
 productive before irrigation was begun would be insignificant 
 
 in proportion to the amount of irrigable land in the State. There 
 are really very few conditions that would physically allow the doc- 
 trine of riparian rights to be applied to the lands of the State of 
 Wyoming, unless it could be stretched to the extent of allowing 
 riparian owners to irrigate their lands abutting on the streams, and 
 even then it would extend to an insignificant amount as compared 
 with the present number of acres irrigated. 
 
 Cross-examination on behalf of defendants. 
 
 By Mr. Hayt : 
 
 3931 Several of these streams I have spoken of run through 
 Wyoming and into Nebraska, and if the following doctrine 
 
 appearing on page 22 of Kansas’ bill of complaint in this case, read- 
 ing: 
 
 “From the organization of the State of Kansas, the common law 
 and the riparian rights herein claimed extended over the whole of 
 the Arkansas valley and to the summits of the Rocky mountains, 
 and had for many years prior thereto. By reason of the prior set- 
 tlement, occupation and title of the inhabitants of the State of 
 Kansas upon and to the lands situated in the valley of said river, 
 including those upon the banks of said river, the State of Kansas 
 and the owners of land in said valley did acquire and now have 
 the right to the uninterrupted and unimpeded flow of all the waters 
 of said river into and across the State of Kansas.” 
 
 should be applied it would be absolutely destructive to us in Wyo- 
 ming so far as the Platte valley is concerned, and if it was applied, 
 so far as the Arkansas valley in Colorado is concerned, and put in 
 force with reference to the Arkansas river in the State of Kansas, 
 necessarily it would be equally destructive to Colorado. 
 
 3932 I would like to explain ray answer to a question pro- 
 pounded by counsel to the effect that if the water were taken 
 
 out of the North Platte river it would have the effect of diminish- 
 ing the flow below in Wyoming to the amount taken out above the 
 State line, that I cannot conceive of how the water can be abso- 
 lutely taken from a stream in Colorado unless it was taken out and 
 diverted into an entirely different water shed. It would be a phys- 
 ical impossibility to dam up and hold it all there, and if the water 
 were taken out and converted into an entirely different water shed 
 you would not then get any advantage, or verv little if any ad van- 
 67— 7 
 
Thfe St ATE oft KANSAS VS. 
 
 tage, from seepage. If the water were appropriated in the State of 
 Colorado and used upon the water shed of the Platte river, then 
 there would be quite a material return to the stream in the way of 
 seepage. If the water should be taken out and used for irrigation 
 purposes upon the watershed of the river I think it would have the 
 effect to some extent of sustaining the uniformity of the flow of the 
 river below during the dry season, undoubted^. In regard to there 
 being no diminution of the flow of water in the main Platte river 
 for the last fifteen years — although much of that water has been 
 used for irrigation above — I will say that in western Nebraska 
 
 3933 along the North and South Platte rivers in the last ten years 
 there has been a greater rainfall, I tl 1 ink, than there was prior 
 
 to that. What has caused that I do not know, but the rainfall in the 
 last five years has enabled farmers to raise crops without irrigation 
 almost up to the west line of Nebraska, under favorable conditions 
 of soil, that did not exist fifteen to twenty years ago. There is a 
 good deal of irrigation or cultivation west of that that might have 
 affected the rainfall in the manner in which I have stated, as there is 
 a good deal in the amount of irrigable land both in the North and 
 South Platte valleys. West of the junction it is increasing every 
 year. It is being enlarged and extended every year. I would not 
 like to answer the question as to whether that would affect or in- 
 crease the rainfall in that particular locality, as I am not an expert 
 on that. I don’t know as to what the statistics of the Government 
 observers show in regard to the increase of rainfall of which I have 
 spoken ; I am simply giving my own observation, being there 
 
 3934 quite frequently from time to time. In regard to the devel- 
 opment of Wyoming under irrigation and the promise that 
 
 it has given of greater development in the future from that cause, I 
 will say that such development is dependent to some extent upon 
 bringing in new settlers and that it is not a matter of slow growth 
 comparatively. The settlement will not be as rapid in a State like 
 Wyoming, naturally, as it would be in a prairie State like Nebraska 
 or Kansas. I presume this growth is retarded somewhat by the fact 
 that settlers coming in here are not familiar with growing crops by 
 irrigation and they have to learn about that very largely and that 
 it takes several seasons, no doubt, for them to familiarize themselves 
 with the process of raising crops by irrigation. 
 
 Recross-examination on behalf of complainant. 
 
 By Mr. Ashbaugh : 
 
 3935 The case decided bv the supreme court of Wyoming that 
 I have referred to is Wiley vs. Decker, 73 Pac. 210. 
 
 When counsel for the State of Colorado a moment ago read to me 
 a part of the bill in this case I was not aware that when the com- 
 mon law was adopted in Kansas the Territory of Kansas extended 
 over the whole eastern part of Colorado to the summit of the range 
 of mountains. 
 
T&R STATE OF COLORADO ET AL 
 
 1059 
 
 Recross-examination on "behalf of defendants. 
 
 By Mr. Hayt : 
 
 If that be a fact, I do not think it would have any effect toward 
 lessening the destructiveness of the doctrine claimed. 
 
 3936 M. R. Johnston, Denver, Colorado. 
 
 Direct examination on behalf of inter venor. 
 
 By Mr. Campbell : 
 
 Wheatland, where I reside, is located on the Cheyenne & North- 
 ern railroad, ninety -six miles north of Cheyenne. I have 
 
 3937 resided there since 1897. I have been superintendent of the 
 Wyoming Development Company for the last sixteen years. 
 
 As superintendent my duties are superintending the water, land, 
 etc. — the running of the water. The company is engaged in the rec- 
 lamation and sale of lands. Its property is situated in Laramie 
 county, near Wheatland. Wheatland is about the center of the land. 
 We elaim now sixty thousand acres under our canals and somewhere 
 in the neighborhood of twenty -five to forty thousand acres are under 
 irrigation now. The water is taken from the Big Laramie. The 
 condition on the Laramie when I went there sixteen years ago was 
 that there was very little land under cultivation. I should say in 
 the neighborhood of 2500 to 3000 acres. Of the land which 
 
 3938 has been reclaimed since I have been there, it had no value 
 except as grazing land, which would be but a few dollars an 
 
 acre. The land that is now under irrigation is worth from $35 to $60 
 an acre. When I went to Wheatland there was practically no popula- 
 tion there ; it now has a population of 2500 people in and around 
 Wheatland. Most assuredly it was the irrigated land that brought 
 that population there and that now sustains it. The land which 
 has not been reclaimed and which it is contemplated reclaiming is 
 worth now in the neighborhood of $2 to $2.50 an acre. When 
 
 3939 reclaimed it will be worth $40 an acre, and will support, when 
 reclaimed, in the neighborhood of six or seven thousand 
 
 people in addition to what we have. We have one reservoir there, 
 supplied from the Big Laramie. Yes sir, it is necessary to continue 
 taking water out of that stream to keep the lands reclaimed in their 
 present state and to irrigate the lands we have in contemplation. 
 The Big Laramie river rises over in the State of Colorado. If the 
 waters of the Big Laramie were appropriated and diverted and 
 used in the State of Colorado, its effect upon our enterprise would 
 be simply ruinous. 
 
 Cross-examination on behalf of K J complainant. 
 
 By Mr. Ashbaugh : 
 
 3940 If the Colorado doctrine of the right to take all of the waters 
 of a stream rising in the State of Colorado and flowing into 
 
1060 
 
 THE STATE OF KANSAS VS. 
 
 another State, by virtue of her sovereignty and her constitution, 
 should prevail, it would ruin our improvement company and our 
 progress and the property that we have been accumulating. I 
 should say that the same result would follow as to other streams 
 similarilly situated. 
 
 Cross-examination on behalf of defendants. 
 
 By Mr. Hayt: 
 
 3941 We would be in the same boat if we were compelled to leave 
 the water in the river to flow by without use into the State of 
 
 Nebraska. The Laramie is a tributary of the North Platte and runs 
 from Wyoming into the State of Nebraska. Our enterprise is located 
 in the neighborhood of 175 to 200 miles or thereabouts from the 
 headwaters of the Laramie river, and 1 should say according to the 
 map it is all in Wyoming, with the exception of twenty-five 
 
 3942 miles, and the area drained by the river is all within the 
 State of Wyoming except twenty-five or thirty miles which 
 
 lie in Colorado, and this is in the mountains of Colorado. The Lit- 
 tle Laramie comes in above the place where we divert water. I 
 think, from my information and what I can find out from other 
 parties, that the principal late supply of water from the Laramie 
 river comes from the higher ranges in Colorado. A number of these 
 tributaries of the Laramie river take their rise in the moun- 
 
 3943 tains also, and I say it draws its principal supply from Colo- 
 rado on account of the snow and height. 
 
 Recross-examination on behalf of complainant. 
 
 By Mr. Ashbaugh : 
 
 The lands along the Laramie river before there was any irri- 
 
 3944 gation were simply arid, pasture lands, so that no cultivation 
 to any marked extent could be carried on along the banks of 
 
 the river without irrigation, and this aridity of the land extended 
 down to the banks of the river. 
 
 Redirect examination on behalf of inter venor. 
 
 By Mr. Campbell: 
 
 Wheatland has about 1200 inhabitants. They are dependent en- 
 tirely upon the irrigated land there. Should either of the conditions 
 prevail in respect to which I have been interrogated by counsel for 
 complainant and defentants, it would practically render the prop- 
 erty in and around Wheatland worth nothing, and the population 
 could not exist there under those circumstances. We have 
 
 3945 some stock feeding there. We are feeding about 30,000 head 
 of sheep this }^ear. The feed we give them is raised on the 
 
 lands in and around Wheatland. No sir, that sheep feeding enter- 
 
T1IIC STATE OF COLORADO ET AL. 
 
 1061 
 
 prise could not be maintained if these lands were in their arid con- 
 dition. 
 
 Recross-examination on behalf of defendants. 
 
 By Mr. Hayt : 
 
 Since we have constructed our reservoirs sometimes there has been 
 a surplus of water going by and at other times we have not 
 
 3946 had enough. During the last year we have been blessed with 
 plenty of water, and I think from the three canals we have 
 
 in our system we take all together between seven and eight hundred 
 cubic feet of water per second of time, and part of these canals are 
 constructed to take water from the Sybelle creek, and the Svbelle 
 receives its supply of water out of the Blue Grass, and the Blue Grass 
 from the Little Laramie. We divert the water out of the Laramie 
 river through a tunnel thirty odd feet long into this Blue Grass. That 
 runs some sixteen or seventeen miles and flows into the Sybelle. 
 After the water goes into the Sybelle, I think about a mile, we take 
 out our large canal. And then it goes on down the creek and we 
 take out what we call No. 3 canal, and then No. 2 still farther on 
 down, from the Sybelle creek. In the early spring for a few days 
 sometimes the water is augmented by that in the Sybelle creek. In 
 some seasons it practically affords us none. The north bound- 
 
 3947 ary of our lands is the Laramie river at present, and we pro- 
 pose to irrigate land right up to the bank of the Laramie 
 
 river. A certain amount of drainage from these lands goes back to 
 the Laramie river, I should judge, but I couldn’t say. Well, ves, it 
 practically all goes to the Laramie river. Some of it goes back into 
 the Sybelle and some into the Chugwater. We have found that the 
 impounding of water in reservoirs is practicable and beneficial. 
 
 3948 A. L. Fellows, Denver, Colorado. 
 
 Direct examination on behalf on intervenor. 
 
 By Mr. Campbell : 
 
 I reside at Denver and am the district engineer of the United 
 States reclamation service. That service was organized under the 
 direction of the Secretary of the Interior for the purpose of carrying 
 into effect the reclamation act of June 17, 1902. I have been con- 
 nected with the reclamation service since its inception as district 
 engineer of the United States reclamation service for Colorado; 
 that is, since July 1st, 1902. Prior to that time I occupied a similar 
 position — resident hydrographer of the United States Geological 
 Survey — for a period of some five years. The reclamation 
 
 3949 service in Colorado primarily has been making reconnois- 
 sances and preliminary surveys to determine the possibilities 
 
 of reclamation throughout the entire State and the arid region ; 
 
1062 
 
 THE STATE OF KANSAS VS. 
 
 secondarily, after making these surveys, it has fixed upon what is 
 known as the Uncompahgre Valley project in western Colorado for 
 first construction in Colorado. Two million five hundred thousand 
 dollars have been set apart for that project, and construction is now 
 under way. That project contemplates the diversion of water from 
 the Gunnison river in western Colorado to the Uncompahgre valley 
 by means of a tunnel some six miles in length for the irrigation of 
 approximately 1.25,000 acres of land in the Uncompahgre valley, 
 which is in western Colorado, the principal towns of which 
 
 3950 are Mentrose and Delta. 
 
 Preliminary investigations have been made of what is 
 known as the White River project in northwestern Colorado, which 
 contemplates the irrigation of possibly 80,000 acres. After the pre- 
 liminary investigations were made this was put aside temporarily. 
 It will probably be taken up some years later. 
 
 Preliminary investigations and surveys have also been made for 
 the Grand River project on Grand river in the vicinity of Grand 
 Junction. It is looked upon with favor by the officers of the recla- 
 mation service and it is probable that it will be the next under- 
 taking in the State. That project will irrigate approximately 60,000 
 acres of arid land in the vicinity of Grand Junction. 
 
 The last project investigated with any degree of thoroughness is 
 the La Plata project on the Animas, and the La Plata reservoirs in 
 southwestern Colorado and nortwestern New Mexico, from which, 
 with the aid of storage, it is expected to irrigate about 60,000 
 
 3951 acres of territory in that locality, in the vicinity of Durango 
 in Colorado and Farmington and La Plata in New Mexico. 
 
 One other project has been carefully examined in eastern Colo- 
 rado on the South Platte, generally known as the Pawnee Pass Res- 
 ervoir project, but it was found that the water supply was insuffi- 
 cient for that and it has been abandoned. The others we have in 
 contemplation. 
 
 Of the land proposed to be irrigated from the Gunnison project, 
 a portion is partially irrigated at the present time. The land 
 
 3952 which is entirely arid is worth nothing — absolutely worth- 
 less. Of the 125,000 acres proposed to be irrigated I should 
 
 say 100,000 acres is arid. When this 100,000 acres is properly irri- 
 gated ten million dollars would be a fair valuation for the whole 
 and it would support an additional population in the neighborhood 
 of 25,000. 
 
 Of the project which will irrigate 80,000 acres on the White river, 
 it is now practically all arid, and when irrigated and cultivated it 
 will be worth $50 an acre. When irrigated these lands will prob- 
 ably support an additional population of six to eight thousand. 
 
 Of the 60,000 acres proposed to be reclaimed on the Grand, the 
 entire tract is arid. I consider that $100 an acre is a low 
 
 3953 valuation for that land, with a good water right attached. 
 Those lands when irrigated will support a population of 
 
 15,000. 
 
THE STATE OF COLORADO ET A L. 
 
 1063 
 
 As to these different projects which I have named, no use is being 
 made of the waters with which we propose to irrigate them. If it 
 should be held that the waters intended to be so used should be 
 permitted to flow as they are now flowing it would be entirely im- 
 possible to reclaim the lands I have spoken of. I am familiar with 
 the doctrine of riparian rights in a general way. If that doctrine 
 were applied in Colorado it might absolutely prevent the operation 
 of the reclamation act. To explain the word “ might ” I 
 3954 would have to -state that my view of the riparian doctrine 
 contemplates allowing the water to pass down the river un- 
 diminished in quantity or quality, and if that were enforced it 
 would prevent the carrying out of the provisions of the reclamation 
 act or prevent the attainment of the objects contemplated by it. 
 
 All of the streams along each of these different projects flow into 
 another State or Territory. If the citizens of these other States or 
 Territories into which these streams flow should insist and succeed 
 in their contention that the water should flow down undiminished 
 and unaffected, this would entirely prevent construction under the 
 reclamation act. 
 
 Cross-examination on behalf of complainant. 
 
 By Mr. Ashbaugh : 
 
 My jurisdiction is not confined to Colorado entirely, but so much 
 so that I do not speak with authority concerning other States. 
 
 When I spoke of the doctrine of riparian rights I had in 
 
 3955 mind its enforcement along the entire channel. If the waters 
 of some of these streams had been used for beneficial pur- 
 poses for years prior to their application in the State of Colorado 
 and then we should proceed in the State of Colorado and take them 
 all, it would destroy the development such as you have supposed. 
 
 Of course that must be taken into consideration in these ques- 
 
 3956 tions. Our effort has not been made in the carrying out of 
 the reclamation service to take the waters of streams that 
 
 have been applied or appropriated or used in any way below the 
 State line of Colorado. We have tried to avoid it under such con- 
 ditions. 
 
 We have no projects on hand at the present time in the Arkansas 
 valley. One reason is that we did not care to undertake any as 
 long as this controversy was under way, which was begun before 
 the reclamation act was passed. No projects could be reasonably 
 begun or carried on in the Arkansas valley until this contro- 
 
 3957 versy is settled, nor would we undertake an} r until the set- 
 tlement of the controversy. We have made investigations 
 
 on the Arkansas river, but have determined on no projects. We 
 have not determined upon any construction whatsoever, nor seri- 
 ously considered it, until this controversy is settled, and our investi- 
 gations are now being held up on that account. 
 
10G4 
 
 THIS STATE OF KANSAS VS. 
 
 Cross-examination on behalf of defendants. 
 
 By Mr. Hayt : 
 
 The Gunnison river furnishes sufficient water for the projects we 
 have in view. That would necessarily contemplate reservoiring the 
 flood waters within a few years. 
 
 3958 We have been making a very thorough study of the Rio 
 Grande river, but the conditions are somewhat similar on 
 
 that stream so that practically at the present. time we are prohibited 
 from undertaking any construction. I mean by that that they are 
 similar to the Arkansas. There is no such inter-state controversy 
 before the courts at the present time, but pending the claims of the 
 Republic of Mexico, the Secretary of the Interior has forbidden the 
 use of the Government lands for storage on the headwaters of the 
 Rio Grande, and for that reason and for like reasons somewhat 
 similar to those existing as though it were an inter-state controversy 
 we cannot undertake any actual construction until those questions 
 are settled. 
 
 We have paid no attention to the claim of people living in Cali- 
 fornia to the Colorado river in the prosecution of development on 
 the Gunnison river. We have taken it into consideration, but have 
 believed that the conditions were such that w T e were war- 
 
 3959 ranted in passing it by. Our department has proceeded 
 upon the theory that the claim was not well founded, and 
 
 the department has undertaken to determine that question as be- 
 tween the contestants. We think the facts speak for themselves so 
 plainly in that case that we are warranted in ignoring their claim. 
 My opinion is that the building of reservoirs at the headwaters of 
 the Rio Grande would be a detriment to the flow of the water in 
 the river below the Colorado line. I think the term “ average 
 normal flow” is something that is so differently understood by dif- 
 ferent people that I generalize a little in my answer and say that in 
 my opinion it would increase the low water flow to some extent. 
 How much I am not prepared to say. But that the average flow 
 which has passed the State line in preceding years will be lessened.. 
 As a general proposition, in speaking of the advantage or disad- 
 vantage of constructing reservoirs generally throughout the moun- 
 tains of Colorado and storing flood waters therein, I think it 
 
 3960 is extremely advantageous. I could not state it strongly 
 enough. The greatest advantage, in my mind, of such 
 
 storage would be the extended use of the water. The flood waters 
 are not stored. A certain proportion of them, and generally a 
 very great proportion, is bound of necessity to go to waste. The 
 storage permits an extended use of the available water supply, 
 and possibly its complete use, that depending, of course, on 
 the amount of storage. That may be due and generally is, in 
 part, to the fact that the higher the water is stored the less 
 will be the evaporation and the less will be the loss by seep- 
 age. The other conditions that enter into tlie storage of water are 
 
THE STATE OF COLORADO ET AL. 
 
 10G5 
 
 practically secondary to that named condition of utilizing as much 
 as possible of the entire flow. But one of those secondary conditions 
 of a great deal of importance is the equalization of the flow. Where 
 water is allowed to flow down the stream normally, without equali- 
 zation, the results are often disastrous to the headgates that attempt 
 to take water out from the stream, and to the best use of the water, 
 the best use depending to some extent on the character of the 
 water. Where the water is equalized in the way I have suggested 
 the result is usually that the water is much clearer and much freer 
 from sediment and does not fill up lower reservoirs and irrigation 
 canals to the same extent that it does when it is allowed to flow 
 down normally and be taken directly from the stream with- 
 
 3961 out the interposition of storage. These I would say are the 
 principal advantages in the storage of water. I am inclined 
 
 to think the storage of water on the Arkansas river might result in 
 benefit by lessening damages from floods in Kansas. I am familiar 
 with the great destruction of property along the Arkansas river in 
 eastern Colorado, aud to some extent in western Kansas, by the 
 floods in the Las Animas river last fall. I believe it is feasible and 
 practicable to construct reservoirs to store sufficient quantities of 
 the waters of such a stream as the Las Animas river to pre- 
 
 3962 vent or lessen the danger from those floods, and that water 
 when stored could be put, of course, to beneficial uses, such 
 
 as irrigation, and the furnishing of power, and other enterprises. 
 
 Recross-examination on behalf of complainant. 
 
 By Mr. Ashbaugh : 
 
 The storage of flood waters holds those waters back from running 
 to waste in the spring and in high water times so that they may be 
 beneficially used during the dry season, and that is the great advan- 
 tage in the storing of water, so that it may be applied when the 
 water is most needed and when there is the least of it flowing in the 
 river naturally. An extensive system of such storage as I have sug- 
 gested would result in equalizing the natural, normal flow of the 
 river. In response to counsel for Colorado in reference to the floods 
 of October, 1904, I did not mean to say that storage would 
 3963 prevent the floods but that it would lessen the danger. The 
 system of storage of flood waters would not depend upon the 
 fact that we might not be able to store all of the flood waters at an ex- 
 treme and very unusual flood, but the flood waters of the rivers of this 
 State (Colorado) might be so stored and not run across such an extreme 
 flood as would be disastrous to the system. I am satisfied that the 
 conditions in the Arkansas valley might be improved, by means of 
 storage. If all the waters of a stream like the Arkansas were di- 
 verted bv successive ditches and canals for irrigation for 250 miles 
 through the eastern part of the State of Colorado it would undoubt- 
 
1066 
 
 THE STATE OF KANSAS VS. 
 
 edly lessen the total volume very materially, and this would 
 
 3964 especially be true if each of those ditches or a number of them 
 were sufficient in capacity to take the whole flow of the river 
 
 at low water and did so take it at such seasons. 
 
 It would be impossible to answer with any degree of accuracy 
 what has been the average percentage of evaporation and loss of 
 water by absorption by plant life in irrigation, even in the same 
 county or along the same streams, because they vary so widely that 
 it is utterly impossible to give a very specific answer; but in gen- 
 eral I should say that we may assume that of water applied in not 
 too great quantities in irrigation perhaps fifty percent, should enter 
 into plant life, twenty-five per cent, pass off in evaporation and 
 twenty-five per cent, flow back to the stream as return or seepage 
 waters. In other localities the proportions would be more nearly 
 even — say thirty and thirty-five per cent. This depends upon the 
 soil, the time of the year, the aridity of the soil, the winds and other 
 climatic conditions, so that the figures I have given are gen- 
 
 3965 erally an average. Return waters pass through the ground 
 very slowly, and waters applied to lands far distant from the 
 
 main channel may be years in returning and the velocity of the 
 current underneath depends very largely upon the soil and the 
 slope of the country. 
 
 Recross-examination on behalf of defendants. 
 
 By Mr. Hayt : 
 
 We, the engineers of the reclamation service, have made meas- 
 urements of the flow of return waters and we have never found any- 
 thing as rapid as ten feet per day. All measurements we have 
 made have been less than ten feet per day. I should say an aver- 
 age would be four or five feet per day. 
 
 The fifty per cent, of the water that I spoke of which goes into 
 plant life is not lost or destroyed. Of course matter is indestructible 
 and eventually it returns to the earth in some form. The 
 
 3966 fifty per cent, or thirty per cent., as the case may be, enter- 
 ing into plant life is a part of the “ fly-off ” as it is generally 
 
 called. It is a part of the evaporation ; that is, it has equalized 
 that evaporation as fly-off and the part remaining as a constant ele- 
 ment of the plant itself is extremely small — infinitesimal — and of 
 course eventually and through processes of oxidization, etc., passes 
 into the ground again, 
 
 I do not think the irrigation of crops in Colorado and other West- 
 ern States for more than forty years, even with the vast acreage 
 under cultivation by irrigation in Colorado, and the many thousand 
 acres of land covered by reservoirs filled with water during some 
 portion of the year, has had any appreciable effect upon the climatic 
 conditions in Colorado with reference to the humidity of the atmos- 
 phere and the precipitation of moisture. This amount of water 
 that is taken up by evaporation necessarily passes into the air as 
 
THE STATE OF COLORADO ET AL. 
 
 1067 
 
 vapor and is eventually deposited in the form of rain or snow — 
 precipitation — upon the earth’s surface, and in general it must be 
 in the country to the eastward of the country irrigated, because the 
 prevailing winds of this region are from the west, so that if 
 
 3967 there is any appreciable effect it will be felt in the regions to 
 the east of the districts irrigated in the Arkansas valley, and 
 
 if as a matter of fact it could be demonstrated that there is an in- 
 creased rainfall in the districts immediately east of Colorado, it 
 would be natural, I take it, to attribute that to some extent to the 
 increased use of water for irrigation to the west. I am personally 
 of the opinion that the cultivation by irrigation in the Rocky Moun- 
 tain regions has had some slight effect upon the precipitation in the 
 form of dews; that it has increased the humidity of the atmosphere 
 to such an extent that there is a slight increase of dew; but I have 
 no demonstration of the fact. If the dews were m.ore heavy on an 
 alfalfa field in the morning than they were upon an arid tract of 
 land immediately adjoining that, it would be a natural inference, I 
 think, that the deposition of dew was increased by the irri- 
 
 3968 gation practically to the extent of the amount of the dew 
 fall. 
 
 Recross-examination on behalf of complainant. 
 
 By Mr. Ashbaugh : 
 
 I do not think that the rainfall in western Kansas has been per- 
 ceptibly increased within the last few years. Rainfall varies so 
 widely in different years anyway that only long, protracted meas- 
 urements of precipitation can furnish any very definite informa- 
 tion. 
 
 If a system or a series of canals for irrigation should be carried 
 on for 200 miles along the river, taking during the irrigating season 
 all of the water, and seventy-five per cent, of that should be evap- 
 orated and absorbed, it would have a very great effect upon the total 
 flow. 
 
 3969 Recross-examination on behalf of defendants. 
 
 By Mr. Hayt: 
 
 The Weather Bureau of the Department of Agriculture, I believe, 
 takes into consideration the relative humidity of the atmosphere 
 and does keep memoranda as to the amount of dew-fall. That is 
 dependent to a great extent upon the humidity of the atmosphere. 
 It is practically directly dependent on that, and is more easily meas- 
 ured in that way, I believe, than by direct measurement, so that my 
 impression is that no direct measurements of dew fall are kept ex- 
 cept as may be apparent to the eye and incorporated in the 
 
 3970 form of memoranda. It is usually the case, but not always, 
 that these measurements are taken in the cities or towns at 
 
 an elevation above the surface of the ground, and one would hardly 
 
1068 
 
 THE STATE OF KANSAS VS. 
 
 expect the precipitation in the form of dew to show at any consid- 
 erable elevation above the ground. 
 
 Recross-exam i nation on behalf of complainant. 
 
 By Mr. Ashbaugh : 
 
 I am familiar with the irrigation in the Arkansas valley in the 
 State of Colorado as it has been carried on for the last ten or fifteen 
 years. The effect of this irrigation in Colorado and the taking of 
 water in Colorado for that purpose has materially lessened the flow 
 of the river through the State of Kansas, I believe. 
 
 Recross-examination on behalf of defendants. 
 
 By Mr. Hayt : 
 
 I have had charge of the measurements on that stream for about 
 seven years ; that is, the measurements for the Geological 
 
 3971 Survey, during a portion of the time, at the State line, at 
 Pueblo, La Junta, Lamar, — that is, the Colorado-and-Kansas 
 
 line — and then under my direction for the last two or three years 
 measurements have been kept up at Syracuse and — I don’t remem- 
 ber now just where they are at the present time in Kansas. They 
 are reported to my office but I have not paid any particular atten- 
 tion to them. That is, only for the last two or three years the}' have 
 come directly to me. It is only for the last two or three years that 
 I have had any measurements, even by others, within the State of 
 Kansas. I have made a few trips to Coolidge, Kansas, about four 
 or five years ago, but never found any water to measure at any time 
 I was there. No, I have not been down there to make any effort to 
 find water to measure during the last year. I have had men down 
 there, but I have not their reports and do not know what they are. 
 I know it as a matter of reports received at the office that there has 
 been a good deal of water in the Arkansas river in eastern 
 
 3972 Colorado and western Kansas during the last year. I am ac- 
 quainted with Senator Swink at Rocky Ford and have a very 
 
 high regard for him as an irrigator of practical experience, and if 
 he has testified in this case that he believed the flow of water in 
 the Arkansas river in western Kansas had increased of late years, 
 particularly during the dry season, and that on the strength of that 
 fact he and his associates have invested a large amount of money 
 in the purchase of the Great Eastern ditch, I would say that 1 have 
 qualified all of mv answers, I think, by saying that the total flow I 
 believe to have been materially decreased. Now, I am of the 
 opinion that the extreme low water stages have been increased ; 
 that is, that there is more water passing down the river at what 
 would ordinarily be the extreme low water stages of the river at 
 the Kansas line, but not as regards the total flow. If Senator Swink 
 had made a personal investigation of that matter from time to time 
 
THIS STATE OF COLORADO ET At. 1069 
 
 for a number of years last past. I should give his opinion a great 
 deal of weight. 
 
 Recross-examination on behalf of complainant. 
 
 By Mr. Ashbaugh : 
 
 If forty or fifty witnesses who have lived on the banks of the river 
 in the State of Kansas from fifteen to thirty years continuously have 
 testified in this case that the total flow of the river has been ma- 
 terially decreased since irrigation lias been carried on in Colorado, 
 my judgment would be in conformity with theirs. (Objection by 
 defendants.) 
 
 3975 Walter B. Dunton, Denver, Colorado. 
 
 Direct examination on behalf of intervenor. 
 
 By Mr. Campbell : 
 
 I have resided at Rock Springs, Wyoming, for about eight months. 
 I was employed for about two years bv the irrigation investigation 
 division of the Department of Agriculture at Washington, entering 
 that employ in September, 1902, and remaining until May, 1904. 
 In the prosecution of my work while so connected I made an ex- 
 amination of the North Platte and its tributaries, the South Platte 
 and the main Platte in Colorado, Wyoming and Nebraska. I 
 visited all the county seats where the records of decrees were kept 
 for the South Platte and North Platte rivers — in Colorado the State 
 engineer’s office, the State engineer’s office in Wyoming and 
 
 3976 the State engineer’s office at Lincoln, Nebraska. In respect to 
 the South Platte in Nebraska, as regards appropriations from 
 
 the stream in that State, I looked at the original adjudication of the Ne- 
 braska State board of control held in 1898 and it showed that there 
 were eight small ditches with priorities of 1894 and 1895 which were 
 awarded appropriations from that river. From a memorandum 
 which I have I can state that there was an appropriation by the 
 ditches of 82.26 cubic feet in 1894 and 29.14 cubic feet per second in 
 1895, making a total of 112 second-feet. • As to the appropriations 
 from the South Platte in the State of Colorado, subsequent to these 
 appropriations of 1894 and 1895 there have been about 1,900 second- 
 feet appropriated from the South Platte in Colorado with priorities 
 subsequent to 1895. These have been decreed priorities. There 
 may have been some ditches that appropriated water that 
 
 3977 have no decreed rights. I can only give accurately the date 
 of one priority from the Laramie river in Wyoming, which 
 
 was awarded to the Wheatland Development Company for 38,000 
 acres in 1883. There have been a large number of appropriations 
 from the Laramie river in Wyoming. It is over-appropriated. 
 There have been about 550 second-feet decreed from the Laramie 
 
im 
 
 ^HE Sl'ATE OE ^AftSAS VS. 
 
 river in Colorado, with appropriations subsequent to 1883. Of this 
 amount 400 second-feet were decreed to what is known as the Sky- 
 line ditch with a priority of 1891. The Skyline ditch divides the 
 water and turns it over into another water shed, bringing it down 
 into the Cache la Poudre. The appropriation of the Skyline 
 8978 dates from 1891. It probably takes about 150 second-feet. 
 
 It was decreed 400 second-feet for direct irrigation and also 
 five hundred million cubic feet for storage. The ditches now in 
 course of construction or which have been constructed during the 
 past year, together with the previous ditches, will take about sevent}'- 
 tive to ninety per cent, of the flow of the Laramie in Colorado. If 
 these subsequent appropriators in Colorado should be permitted to 
 take that water it would very seriously injure the land now irrigated 
 in Wyoming by prior appropriation there. If only twenty-five per 
 cent, of the water of the Laramie river should pass the State line 
 into Wyoming it would undoubtedly put some of them in Wyoming 
 out of business. Of course there are larger tributaries which come 
 into the stream in Wyoming and which cannot be touched 
 
 3979 by diversions in Colorado. Yes, there are appropriations in 
 Colorado subsequent to appropriations in Wyoming which 
 
 would practically take seventy-five per cent, of the water before it 
 reaches the State line dividing Colorado from Wyoming. The Sky- 
 line is one of these ditches, and is completed. Two ditches, one of 
 them called the Bob Creek and the other one the Nun Creek ditch, 
 are designed with the same end in view — to convey the water over 
 the water shed. I understand the Nun Creek ditch has been built 
 since I was there, but I do not know only from hearsay. 
 
 Cross-examination on behalf of complainant. 
 
 By Mr. Ashbaugh : 
 
 The appropriations in Colorado from the Laramie river that have 
 already been made and made subsequently to prior appropriations 
 in Wyoming will take from seventy-five to ninety per cent, of that 
 river at the State line in the summer season and when the water is 
 most valuable and most needed. The effect of taking sev- 
 
 3980 enty-five to ninety per cent, of the flow of the river during 
 the summer season in the State of Colorado would diminish 
 
 the Laramie river to that extent in its flow at the Wyoming State 
 line. These appropriations that are taken in Colorado being taken 
 into another water shed, no seepage whatever gets back into the 
 river and flows down into Wyoming, and what is taken in Colorado 
 is a total loss to Wyoming. There is a good deal of complaint in 
 the State of Wyoming as to the subsequent appropriations 
 
 3981 in the State of Colorado. (Objection by defendants.) A suit 
 is now pending involving the appropriations on Sand creek, 
 
 one of the tributaries of the Laramie. (Objection by defendants.) 
 As to the extent to which the waters of the South Platte have been 
 appropriated in the State of Colorado for irrigation, I will say there 
 
fME STATE OF COLORADO ET AL. 
 
 1071 
 
 is practical!}* no water at all flowing across the State line daring the 
 summer season. It is only in the winter time and times of very un- 
 usual floods that there is any water at all flowing in the river at the 
 State line. It is a dry bed of sand. You might say that the total 
 flow of the South Platte river has been appropriated in the State of 
 Colorado, and there is practically no water at all in the summer 
 season during July and August at the State line. This total 
 
 3982 loss of water at the State line is caused by the diversion of 
 water for irrigation purposes above that point. In the course 
 
 of making this report I looked up the records of the stream as care- 
 fully as possible although there had never been any records of the 
 flow of the stream kept at the State line except within the last year 
 or two, and I also interviewed a large number of old-timers who 
 were acquainted with the flow of the stream in the early days before 
 any ditches were taken out to amount to anything, and their testi- 
 mony was unanimous in saying that in those days and usually dur- 
 ing the dry part of the season the stream would be dry or there 
 would be only a little water trickling in channels at the State 
 line, but the water used to flow there in considerable volume dur- 
 ing the flood season where none flows at all now. (Objection 
 by defendants.) I collected this information in my service for 
 the Government and as a part of my duties. From my in- 
 
 3983 formation the time when the period of low water manifested 
 itself in early years is extended over a much longer period 
 
 now than it was in the early days when no diversions were made 
 from the river. It is my judgment that the flow of the river has 
 been materially diminished because of the taking of water in Colo- 
 rado. The bed of the river, particularly from the mouth of the 
 Poudre down to the State line, a distance of approximately 150 
 miles, is very sandy and is very broad. 
 
 From my information and observation, there was such a 
 
 3984 thing known along theSouth Platte river as a June rise, and ac- 
 cording to that testimony the usual spring floods used to occur, 
 
 but now these springs floods do not occur, on account, in my opinion, 
 of the use of the water for storage and for large ditches along the 
 South Platte. 
 
 Along this river you always find water by digging a hole in the 
 bed of the sand, and I suppose that “ underflow ” is the popular term 
 for the water which is found in the bed of the stream. I made no 
 examination to determine the velocity of that underflow. I know 
 that you can dig a hole in the bed of the stream and find 
 
 3985 water when the bed of the river is dry. It is my opinion that 
 every diversion of water from the stream for irrigation di- 
 minishes the flow of that stream, and naturally, if you took every 
 drop of water out of it it would diminish the amount of water in the 
 so-called underflow which would appear in the stream a number of 
 miles below. (Objection by defendants.) 
 
 The South Platte river has its rise in South park, on the eastern 
 slope of the Rocky mountains. There are a number of tributaries, 
 
1072 'THE STATE OF KANSAS VS. 
 
 such as the Cache la Poudre, which is a larger stream than the 
 Platte itself. The source of the underflow is like all of those 
 
 3986 western streams — the snow in the mountains forms the prin- 
 cipal supply. On the South Platte in Colorado undoubtedly 
 
 the entire flow was fully appropriated for direct irrigation by ditches 
 with priorities prior to any ditch ever taken out in Nebraska. I do 
 not think that any appropriation made now with subsequent priori- 
 ties to those already secured could affect the flow of the stream at 
 the State line unless they should discover some reservoir sites down 
 near the State line and store water there, what little might get past. 
 There may be some surplus flow of water in the stream now. 
 
 3987 The normal flow is exhausted. I stated that between 900 and 
 1,000 cubic feet per second had been appropriated subse- 
 quently to 1895 in Colorado, but these ditches never got any water 
 except in times of unusual flood, because the prior ditches in Colo- 
 rado were sufficient to prevent these later ones from getting any 
 water excepting in flood times. 
 
 There is a great deal of difficulty between different water districts 
 or divisions in Colorado. A decree of one district would not be bind- 
 ing upon the appropriators in another district, but they would be 
 binding upon the appropriators themselves in the district for 
 
 3988 which the decree was given. The claim is made by the up- 
 stream district that the decree for the down-stream district 
 
 was fraudulent and fictitious and on that ground they got their in- 
 junction, and the effect of the injunction is to prevent any water 
 from being let down, and even though the suit is not maintained and 
 the injunction finally made perpetual it is generally possible to keep 
 the suit going long enough until the stream falls again. A subse- 
 quent appropriator may institute a suit when the water is coming 
 and enjoin the water commissioner from supplying that water to a 
 ditch with a prior appropriation and keep the suit pending long 
 enough to get the water regardless of the determination of the suit, 
 and that has been demonstrated to be possible and it has 
 
 3989 been done. There is litigation of this kind now pending, or 
 it was pending last spring, between appropriators in district 
 
 67 and district 3 on that same question. 
 
 The stream is largely over-appropriated in every district in the 
 late season in Colorado, and they get every drop of water they can 
 out of it, and the effect of this is that there is nothing but a dry bed 
 of sand from Julesburg to the junction, which I should roughly 
 guess is about a hundred miles, and the effect of this reduction is 
 that there is no water that flows across there at all. 
 
 3990 I stated in my direct examination the effect of Colorado 
 taking all of the water of the Laramie river and that it would 
 injuriously affeqt the irrigation of the Wheatland system. 
 
 3991 As to the percentage of waters used for irrigation that re- 
 turn as seepage to the stream, that depends entirely upon the 
 
 character of the soil, the distance to which the water is taken and 
 the use that is made of it. There is probably an average of one- 
 
THE STATE OE COLORADO EL AL. 
 
 1073 
 
 third of the water diverted seeps back into the river. If these diver- 
 sions should be repeated over and over as you go on down the 
 
 3992 river, undoubtedly it would be possible to divert the entire 
 body. Of course in times of flood that is another thing. The 
 
 only seepage water that would go on down the stream so as to be a 
 part of the flow would be the seepage from the ditches lowest down. 
 The seepage water to get back into Nebraska so as to affect the flow 
 in that State must come into the river below the headgate of the 
 lowest ditch, if the lowest headgate is taking all of the water in the 
 stream. When the lowest headgate is taking all of the water in the 
 si ream the seepage that will get back into the river so as to affect 
 the flow of the river below must be below that headgate. 
 
 3993 The North Platte and the South Platte differ very largely. 
 The Arkansas river, so far as I am acquainted with it, is quite 
 
 similar to the South Platte after it gets down into Nebraska where 
 it spreads out along the sands. 
 
 Cross-examination on behalf of defendants. 
 
 By Mr. Hayt: 
 
 3994 I am an attorney at law, practicing at Rock Springs, Wy- 
 oming. I have been there for about eight months. I was 
 
 admitted to the bar in 1899, and am twenty-eight years of age. I 
 am a native of Vermont and came west first in 1902. I made no 
 study of irrigation prior to coming west, but I have practically done 
 nothing else since that time until this summer — that is, than to study 
 the law and also the practice of irrigation. I was working for the 
 irrigation investigation of the Government. I did not do 
 
 3995 anything else. 1 had no knowledge of irrigation at the time 
 of my appointment, and I was appointed at the time of com- 
 
 3996 ing here, in 1902. The couple of weeks after my appoint- 
 ment and before coming here I devoted to work in the Con- 
 gressional Library, looking up the records of early explorers, like 
 Fremont. After coming here Professor Mead in his report wished 
 to show the various decreed rights on the South Platte, the North 
 
 Platte and the main Platte, and that was my particular duty. 
 
 3997 I spent a couple of months on a trip taking seepage measure- 
 ments and things of that kind, and assisted in the general 
 
 work of the office. I suppose in actualW looking over the decrees 
 and finding the basis on which they were made I might have spent 
 five or six months. I found these decrees in the offices of the state 
 engineers in Wyoming and Nebraska, but in Colorado I visited 
 the county seats to look over the referees’ findings in those matters. 
 I visited Sterling, Greeley, Fort Collins, Boulder, Denver, Castle 
 Rock, Fairplay and Golden in 1903. 
 
 I was along the North Platte in 1902, but I think I was 
 
 3998 not along the South Platte in that year. My visit along the 
 North Platte was in the last part of October or first part of 
 
 November, and I was on that part of the river from Fort Laramie 
 68—7 
 
1074 
 
 THK STATU: OF KANSAS VS. 
 
 down to the State line. I was not on the North Platte in 1902 ; it 
 was in 1903 ; and I was along the North Platte from about the 
 first of August to the last of September, 1903, from the State 
 line of Colorado to the State line of Nebraska. I was making 
 seepage measurements from the point where the stream crosses the 
 Colorado-and-Wyoming line, down to the point where it crosses the 
 Nebraska-and- Wyoming line. I made those seepage measurements 
 by getting the flow of the river and measuring it by the current 
 meter in each case, measuring the flow at a given point above the 
 headgate of a ditch and measuring the amount of diversions and 
 also the amounts coming in from tributaries, and then the amounts, 
 say, ten or twelve miles below, differing in different cases. 
 
 3999 I concluded that work on the North Platte about the middle 
 of September or first of October, 1903. I then went down to 
 
 Lincoln, Nebraska, to get the decrees in the State engineers’ office. 
 1 had been along the South Platte river in the spring of 1903 during 
 the month of Julv and during the month of June. I was along the 
 South Platte making this investigation, I think, from the middle of 
 May to the last of July, and also in the winter months. I was along 
 all parts of the river from the mouth of the canon down to the State 
 line. I camped on the river. We generally took the railroad and 
 stopped off at a point and then would ride down the stream. 
 
 4000 I think I came here to Denver for two or three weeks in Oc- 
 tober. I was on the North Platte until about the first of that 
 
 month, and after I came here I think I went down to Lincoln. I 
 was on the South Platte in Colorado in the fall of 1903, not more 
 than two or three weeks, and that was along about Sterling. I was 
 here in April, 1904, here at Denver and Greeley, on the Poudreand 
 South Platte. That was the sole time I was on these streams in 
 1904, and I was not here for more than a week or two. I 
 
 4001 think I rode out along the stream from Denver. I rode out 
 down to Irondale, about nine or ten miles below Denver. I 
 
 made no other personal investigation along these streams in 1904. 
 I was no longer in the service of the Government. I quit the serv- 
 ice about the first of May that year, I think. I entered the service 
 about the 15th of September, 1902. I was making these investiga- 
 tions, did this work in Washington and examined these decrees, I 
 think, in the time extending from the middle of September, 1902, 
 to the first of May, 1904, and I made no previous preparation, either 
 by studying the question of irrigation or in the line of civil 
 
 4002 engineering, for this work. At the State line the taking of 
 water from the Platte river in Colorado has undoubtedl}' de- 
 creased the flow of the river except in very dry seasons when possi- 
 bly no water ever flows there. If Mr. Van Orsdel and Mr. Corthell 
 testified that they had been acquainted with the Platte river for the 
 past fifteen years and that there was no perceptible diminution in 
 the flow of the river below the junction of the South Platte with the 
 North Platte, of course, as I have no personal knowledge on the sub- 
 ject, from all 1 could learn, during the past fifteen years there has 
 
THE STATE OF COLORADO ET AL. 
 
 1075 
 
 never been any water flowing at the junction as those gentlemen 
 stated, only when some unusual flood might come along. 
 
 4003 I don’t think there has been any diminution of the flow 
 myself. I think the parties whom I interviewed were unani- 
 mous in saying there had been no diminution in the flow at the 
 junction of those streams during the past fifteen years. I under- 
 stood your question to be, Have these appropriations in Colorado 
 diminished the flow of the stream at the State line? That is, if 
 there were no diversions in Colorado at all at the present time would 
 there be more water flowing at the State line than there is now? 
 And I certainly think there would be. Such was the testimony of 
 those gentlemen whom I interviewed. I do not think there was 
 anything to diminish except occasional flood waters beyond the 
 
 junction during the last fifteen years. Of course the North 
 
 4004 Platte always carries some water. I know the seepage flow 
 at the State line is greater in October and November and the 
 winter months than at any other time, but I have no knowl- 
 
 4005 edge that they had quite a stream of water there. I under- 
 stand that the South Platte river does carry water at the State 
 
 line and below the State line during the fall months of the year. I 
 stated, yes sir, that in my opinion there is no water at the ordinary 
 stages for the supply of irrigation ditches in Nebraska after the 
 priorities in Colorado are supplied which are earlier than 
 
 4006 those in Nebraska. I think there is something like 175 miles 
 of the Laramie river in the State of Wyoming, and, roughly 
 
 estimating it, forty or fifty in Colorado, and that the drainage area 
 of the Laramie river in Wyoming is much larger than the 
 
 4007 drainage of the Laramie river in Colorado. I should say 
 there was five times as much, or perhaps greater. I don’t 
 
 know. I have stated that if the ditches already constructed should 
 take seventy-five per cent, and another ditch would take twenty-five 
 per-cent., if it were constructed, it would naturally takeall the water 
 in the stream. I do not think that would be possible, though. I 
 think the physical obstacles are such that, while I have never made 
 any engineering examination of it, it could not possibly exhaust every 
 drop of water flowing across the State line, but they could 
 
 4008 very seriously diminish the flow, as they do at present. I was 
 on the South Platte river at the State line in June, 1903, when 
 there was no water. I was there in the fall when there was no 
 
 4009 water, about the first of October, 1903. I was not directly at 
 the State line at any other times besides these, but I was at 
 
 Sterling in July when there was little water at Sterling, so little 
 that I do not think there could have been any at the State line. 
 
 I also saw the records of flow which were kept during that year at 
 Julesburg by the Geological Survey. Sterling is about twenty-five 
 or thirty miles from the State line, and Julesburg is right at the State 
 line. I made no investigation of the underflow. I saw a ditch 
 
 4010 diverting water from the main Platte down near Lexington 
 at which the manager dug a trench across the river and he 
 
1076 
 
 THE STATE OF KANSAS VS. 
 
 got several cubic feet per second by his trench dug in the bed of the 
 river. He dug it in the spring of 1903. It was taken from there. 
 I couldn’t say where the water came from. Undoubtedly the seep- 
 age does increase. If there were no seepage from ditches in district 
 64 during the summer season it would be in a bad way. Of 
 
 4011 course seepage does help them out. It is the universal opin- 
 ion that the seepage furnished the greater supply for the 
 
 ditches in eastern Colorado at the time 1 was there. I supposethe 
 water in the bed of the stream, whether it is found beneath or above 
 the surface, comes from practically the same source as that of all 
 those western streams. Of course drainage amounts to something, 
 and rainfall helps the flow of the stream. You take the South 
 Platte and of course where it leaves the Platte canon up here that 
 ends its flow through the mountains. The tributaries which enter 
 it are some of them more important streams than the South Platte, 
 like the Cache la Poudre. I should not say, myself, that the drainage 
 area of the South Platte is larger outside of the mountains 
 
 4012 than the drainage area in the mountains. You take two ex- 
 perts and the way they will define the drainage area of a cer- 
 tain stream differs very largely. I understand the drainage area to 
 be that portion of the country which slopes toward that particular 
 stream. 
 
 Recross-examination on behalf of complainant. 
 
 By Mr. Ashbaugh : 
 
 4014 The year 1904 has been called a very wet year, or a pretty 
 good year, ves sir. The seepage in the eastern district of Colo- 
 rado on the South Platte river is about all the water they get when 
 it is so computed in the summer season. Their ditches have a capac- 
 ity to take all of that seepage water, so that it does not allow any 
 to flow on down below. 
 
 Santa Fe, New Mexico, January 31-February 1, 1905. 
 
 4016 Miguel A. Otero, Santa Fe, New Mexico. 
 
 Direct examination on behalf of intervenor. 
 
 Bv Mr. Campbell : 
 
 I reside in Santa Fe, New Mexico, and have been governor of the 
 Territory nearly eight years. I have resided in the Territory since 
 1879, but have lived in the Territory off and on for nearly 
 
 4017 forty-six years. I have been over the Territory considerably, 
 and am well acquainted with its resources, its property and 
 
 its people. 
 
 Less exemptions, the assessed valuation of property in the Terri- 
 tory is in the neighborhood of forty-one millions. This is about 
 
THK STATU OF COLORADO FT AL. 
 
 1077 
 
 one-fifth of the real value. A great deal of the Territory is exempt 
 on account of a two hundred dollar exemption for heads of families. 
 
 I should judge that about two-thirds of the property in New 
 Mexico has been created by irrigation. Probably more. That is, 
 figuring directly and indirectly. 1 should say at least that 
 
 4018 much. This two-thirds of the total valuation of property in 
 New Mexico could not have been created and would not now 
 
 be existing if we were obliged to let the water run in the streams 
 undiminished and unaffected in any way. 
 
 In my judgment not all the lands which can be reclaimed in New 
 Mexico have already been reclaimed, considering the water in our 
 streams. I should say that between two and three million acres 
 could yet be reclaimed. This is a conservative estimate. 
 
 4019 Should this land be reclaimed I should judge it would be 
 worth from $25 to $100 and even as high as $250 an acre, 
 
 depending of course, on the location and the opportunities to market 
 the products. A good deal of lliis land is Government land — four- 
 fifths of it, or even more perhaps. It is now worth from forty cents 
 to $1.25 an acre. A great deal of it I would not give twenty-five 
 cents an acre for. If they put 3,000,000 acres of land under water 
 here I think it would support over a million people, consid- 
 
 4020 erably over that, in this Territory. 
 
 The custom with respect to using the waters of the streams 
 in this Territory for years has been to take the waters from the 
 streams and apply them to the lauds for the purpose of raising 
 crops. This usage or custom antedated any legislation on the sub- 
 ject. It is a matter of common and historical knowledge. I testi- 
 fied before the Committee on Foreign Affairs in Washington at the 
 time [ went there to oppose the international dam, that irrigation 
 had been carried on here between two and three hundred years ago. 
 From common knowledge I think it is a fact that the first appro- 
 priations were taken out of the Rio Grande. They are between two 
 and three hundred years old. Recent appropriations from the Rio 
 Grande in Colorado have affected the appropriations in New Mexico 
 below the State line. (Objection by defendants.) 
 
 4021 Cross-examination on behalf of complainant. 
 
 By Mr. Ashbaugh : 
 
 Such diversions in Colorado have affected the flow of the river by 
 taking the water out of the streams that run into this Territory here, 
 and have often had the Rio Grande dry as far as Albuquerque ; that 
 is, the water could not get down any farther than that. (Objection 
 by defendants.) As to what has dried the Rio Grande as far as Al- 
 buquerque, I would not like to state, because I do not know posi- 
 tively, but from my information from engineers it is that the waters 
 were taken out in the San Luis valley up there in Colorado. 
 
 4022 (Objection by defendants.) The irrigation that produced this 
 effect was located in Colorado. If the Colorado doctrine, that 
 
1078 
 
 THE STATE OF KANSAS VS. 
 
 she lias the right to take all of the water that flows in the streams 
 within her borders, should prevail, and if she should take it, it would 
 be absolutely ruinous to us down here in New Mexico. If she should 
 take all of the waters that rise in the State of Colorado and keep 
 them up there it would cut out many streams that flow into New 
 Mexico here, and I think there would be considerable corn- 
 
 4023 plaint. The streams that rise in Colorado and flow into New 
 Mexico are the La Plate, the Animas, the San Juan and the 
 
 Rio Grande. Of course there may be other small streams. I have 
 no information as to the normal flow of those streams across the 
 State line, but at least it is considerable, and if that water should be 
 controlled under the Colorado claim and diverted in the State of 
 Colorado it would affect our interests in New Mexico to a very large 
 extent. It would indeed. (Objection by defendants.) 
 
 Cross-examination on behalf of defendants. 
 
 By Mr. Dawson : 
 
 I think the irrigated lands along the rivers in New Mexico are as 
 valuable to day as at any time since I have known them. 
 
 4024 The lands are not losing in value at this time in New Mexico 
 under the present conditions existing in Colorado, only so 
 
 much as they cannot be used for lack of water. The lands are just 
 as valuable for living. I think as a matter of fact the prices for such 
 lands as are under ditches on the Rio Grange are now less than you 
 could have bought them at fifteen or twenty years ago. You cannot 
 get the prices on the Rio Grande for lands now, on account of the 
 water, — you cannot get as much as those lands near Peralta, Los 
 Lunas and other sections in the Rio Grande valley. The Rio Grande 
 did not have any water at all in it from El Paso to Albuquerque, 
 and it is getting drier nearly every season, and this did not 
 
 4025 occur until late years. My recollection of the Rio Grande in 
 years gone by is that it was flowing all the time. 
 
 I don’t know whether the timber has been extensively cut and 
 burned on the headwaters of the Rio Grande and its tributaries or 
 not. I know that wherever lands are irrigated there is a certain 
 percentage of return flow or return waters to the streams, and if 
 large amounts of water are taken out and spread over the land in 
 the early part of the year when there is ample water it will tend to 
 equalize the flow of t lie stream during the other months of the year 
 by reason of the return flow, if they turn it back into the stream. 
 If they use the water and turn it off onto prairie land or a large area 
 of country there would not be very much of it returned to the stream. 
 I would say a great deal of the water used to-day for irrigation re- 
 turns in seepage water if the drainage is toward the stream, even 
 though it goes into the soil. 
 
 The establishment of a doctrine which would prevent the taking 
 of water from the streams for irrigation would be absolutely 
 
 4026 ruinous to New Mexico, if enforced ; and I believe that would 
 be true of all the arid region, in nearly all the Territories and 
 
THE STATE OF COLORADO ET A L. 
 
 1079 
 
 States where irrigation is a necessity for the cultivation of the land. 
 I should say that lands in New Mexico that are now under irriga- 
 tion with an ample supply of water are worth on an average from 
 $25 to $100 and as high as $250 an acre ; in fact I have known lands 
 ill the Pecos valley to sell as high as $500 an acre. I think $25 to 
 $50 would be a very conservative figure. And if these same lands 
 would be deprived of water I should say the value would be about 
 forty cents to $1.25 per acre. If they were deprived of that water 
 they would go back to about these prices. 
 
 4027 I lived at Granada, Kansas, in 1873, and until 1875, and 
 went up to La Junta. I have frequently gone hunting in 
 
 those years along the Arkansas river, and I have walked across it 
 frequently there without wetting my shoes. I have hunted ducks 
 in that country over toward Holly and below and at La Junta also. 
 Of course in flood seasons you could not swim a horse across some- 
 times. I have walked across it several times — frequently. 
 
 Recross-examination on behalf of complainant. 
 
 By Mr. Ashbaugh : 
 
 When I walked across the river at Granada it was during the dry 
 season of the year. 
 
 Taking the water in Colorado out of the Rio Grande has seriously 
 interfered with the flow of that stream in the last ten or fif- 
 
 4028 teen years. To what extent, you would have to ask an engi- 
 neer. I would not be prepared to answer that. (Objection 
 
 by defendants.) It has, however, reduced it to such an extent that 
 at certain times of the year there is no flow in the river below Al- 
 buquerque, and from my experience it never had been that low 
 prior to the time irrigation was put in force in Colorado. I believe 
 that, regardless of local pride for my own Territory, we have one of 
 the finest climates in the world and our irrigable lands along the 
 streams in this Territory are rich lands and can be raised to 
 
 4029 a very high state of cultivation, and the success of our Ter- 
 ritory will depend very largely on the methods pursued by 
 
 the Government, the States and parties with respect to irrigation. 
 
 4030 Luther Foster, Santa Fe, New Mexico. 
 
 Direct examination on behalf of intervenor. 
 
 By Mr. Campbell : 
 
 I reside at Los Lunas and am president of the Agricultural Col- 
 lege of New Mexico and director of the agricultural experiment 
 station for the United States Government. I have been connected 
 with the agricultural experiment station in this Territory for three 
 years, and in other States ever since its organization in 1887. I 
 have been at Los Lunas three years last November. For fourteen 
 
1080 
 
 THE STATE OF KANSAS VS. 
 
 months previous to coming to New Mexico I was connected with 
 the agricultural experiment station in Wyoming at Laramie, and 
 for four years previous to that was director of the experiment sta- 
 tion of Utah at Logan ; and for three years previous to that I was 
 connected with the Montana agricultural experiment station. 
 
 4031 In all these places there were agricultural colleges. At Lar- 
 amie in Wyoming the agricultural college and experiment 
 
 station is a department of the university. I was professor of agri- 
 culture and vice-director of the experiment station there. In all of 
 these institutions it was necessary for me to study the question of 
 irrigation, and that was one of the leading lines of investigation. 
 In the arid region I think that irrigation is really only in its begin- 
 ning. Since coming to New Mexico I have been around over the 
 Territory to some extent and have made observations with respect 
 to what irrigation has done here. I have been through the Pecos 
 valley, and on those trips I have made have stopped at most 
 
 4032 of the principal places for a day. I have been also up and 
 down the Rio Grande and at other places along the Rock 
 
 Island railroad, also at places west of Albuquerque, and pretty well 
 over the Territory, except in the San Juan country in the north- 
 west corner. 
 
 I should say that the whole property of New Mexico is dependent 
 largely upon irrigation. I should say more than half. If you put 
 out the stock interests I would say seventy-five or eighty per cent, 
 of it. I mean the stock interests that simply depend on the range. 
 If all the waters were conserved I believe that somewhere from six 
 to eight million acres might yet be reclaimed in New Mex- 
 
 4033 ico. I think that land in general is worth from nothing to 
 perhaps $1.50 an acre. Some of it might be worth more. If 
 
 water could be applied to this land, judging the price of farm prod- 
 ucts as they have existed in the Territory since I have been here, 
 every acre would be worth a hundred dollars, and from that 
 
 4034 up, if you count fifteen per cent, a good return for an invest- 
 ment of that kind. To be conservative, I would say a forty- 
 
 acre tract of land would easily support a family of six, and I believe 
 you could put it inside of that considerably. Directly, I mean. 
 That is, those that go on the land and cultivate it. The lands be- 
 tween Albuquerque and El Paso are practically all irrigated 
 
 4035 lands, that is, those that produce crops. It is not possible 
 along the Rio Grande to produce an agricultuaal crop, or 
 
 any place in New Mexico, by depending upon rainfall. I think 
 there are a few places in the White and Azure mountains where 
 there is rainfall enough to produce small grains, but there is no 
 great extent of land of that kind. 
 
 Between Albuquerque and the State line dividing New Mexico 
 from Texas there are the following towns: Los Lunas, Belen, 
 Socorro, San Antonio, San Marcial, Engle, Rincon, Dona Ana, 
 Las Cruces, Mesilla Park, Earlham and Anthony. These towns are 
 
THE STATE OP COLORADO ET AL. 
 
 1081 
 
 supported by crops produced on the land. Of course some of them 
 are supported also by the mining interests and stock raising. 
 
 4036 A very large percentage of the population on the Rio 
 Grande from Albuquerque to the New Mexico-Texas line de- 
 pends very largely upon the lands which are dependent upon crops 
 raised by irrigation. If the people along the Rio Grande were com- 
 pelled to allow the water to run down undiminished and unaffected 
 the property along the stream would be deserted. If the water was 
 taken out above Albuquerque the property between Albuquerque 
 
 and the points named would be deserted and would be worth- 
 
 4037 less, a very large percentage of it. I have been in the Pecos 
 valley and I do not believe they are irrigating and cultivat- 
 ing all the lands that can be irrigated and cultivated there. Under 
 what we would call intelligent agriculture, with economical use of 
 the water, 1 am very conservative in saying that the area could be 
 doubled there provided they would take care of the flood waters, 
 and of course by taking care of the flood waters, many more times. 
 I think I could say the same things with respect to the Rio Grande, 
 with the water that runs down now. Perhaps it is not so apparent 
 on this river, but I think it could be doubled, yes sir, with a proper 
 use of the water. That is only an opinion. 
 
 I know there is an old ditch down in our valley that is said to be 
 three hundred years old, and there is evidence to show it is a very 
 old one. It was along an old river bed, the Rio Grande having 
 changed its bed since that canal was built, and then by the 
 
 4038 growth on it, bv the mesquite and darnel that grows on it I 
 would judge it to be very old. I have not cut these trees to 
 
 see the growth, but I presume it is in the neighborhood of two hun- 
 dred years old, and may be three hundred. The common under- 
 standing in this Territory is that that ditch was constructed about 
 three hundred years ago. 
 
 Cross-examination on behalf of complainant. 
 
 By Mr. Ashbaugh : 
 
 As to how large the Rio Grande is, I cannot state as to cubic feet 
 per second of time. Sometimes it is a very large river. At times 
 and in places it is a mile wide and at other times there is no river 
 at all. Where there is no river at all, according to my personal 
 knowledge, is from El Paso up above Rincon to Garfield. Along 
 there I have driven right in the bottom of the river for two or three 
 miles at a stretch. I suppose that irrigation through the 
 4039 Territory has had an effect in reducing the flow of the river. 
 
 The San Luis valley is said to be a very highly irrigated 
 valley at the present time, using a great deal of water. As to the 
 effect that irrigation in Colorado has had upon the flow of the Rio 
 Grande, it is the general understanding among our people that on 
 
1082 
 
 THE STATE OF KANSAS VS. 
 
 account of this irrigation in Colorado we are short of water, 
 
 4040 and that is the reason why the Rio Grande goes dry during 
 our crop season. (Objection by defendants.) It is my under- 
 standing that the Rio Grande has gone dry only since the irrigation 
 on the upper reaches of the Rio Grande. (Objection by defendants.) 
 This understanding comes from what is said by people generally 
 in this Territory up and down the valley. If the State of Colorado 
 should prevail in her claim that she has the right by virtue of her 
 
 constitution and laws to take all of ttie waters of the 
 
 4041 streams which rise within her borders and that flow 
 into this Territory, it would very largely destroy our 
 
 agricultural interests. The streams that rise in Colorado and 
 flow into New Mexico are the Rio Grande, the San Juan and 
 its tributaries and the La Plata. There are some others, but 1 be- 
 lieve these are the principal ones. If a just control could be exer- 
 cised over those streams and the waters of those streams could be 
 properly conserved, and especially the flood waters could be im- 
 pounded, it would have a very beneficial effect on the agricultural 
 interests of our Territory and would largely increase them. I 
 
 4042 think this would increase the irrigable lands at least 2,000,000 
 acres (objection by defendants) ; that is, counting that that 
 
 has once been under irrigation but is now deprived of water, which 
 is quite a large area along the Rio Grande. The lands that were 
 formerly irrigated along the Rio Grande and that are not now under 
 irrigation have become so because of lack of water. (Objec- 
 4048 tion by defendants.) The cause of the lack of water has been 
 the diminution of water in the Rio Grande. (Objection by 
 defendants.) The general understanding is that this is caused by 
 the water being taken out farther up the river in the State of Colo- 
 rado. (Objection by defendants.) This is a matter of common 
 knowledge in this Territory. That is the understanding. 
 
 The climate in this Territory is exceedingly healthful and de- 
 lightful and our lands when water is applied are very rich, 
 
 4044 productive and fertile. 
 
 If the United States Government should pursue the policy 
 that is now outlined under the reclamation act of 1902 a large de- 
 velopment of very useful and highly cultivated land in this Terri- 
 tory would result. This policy is not onl} 7 a wise one but an ex- 
 ceedingly practicable one. I believe the impounding of water is a 
 practicable project. If the Colorado claim should prevail and no 
 water be allowed to cross the State line into this Territory it would 
 certainly interfere with this reclamation of our lands and the im- 
 pounding of waters in our Territory. (Objection by defendants.) 
 
 Cross-examination on behalf of defendants. 
 
 By Mr. Dawson: 
 
 4045 I have never been on the Rio Grande in Colorado. I may 
 have crossed it on the train, but not to my knowledge. I 
 
THE STATE OF COLORADO ET AL. 
 
 1083 
 
 don’t know what the conditions of rainfall and snow fall have 
 been on the headquarters of the Rio Grande for the last ten or fif- 
 teen years as compared with any earlier period, and I don’t know 
 it to be a fact that the timber has been largely cut and burned 
 off on the headwaters of the Rio Grande and its tributaries within 
 that time. 1 have heard that such was the case, and from my ex- 
 perience in charge of experimental stations and otherwise 
 
 4046 I know that the timber on the sources of a stream is a great 
 conservator of the water supply, and I know that where the 
 
 headwaters of a stream are densely timbered the snows lies later in 
 the season and go off more gradually and furnish a more perma- 
 nent river than where the ground has been stripped of its timber, 
 and as far as my personal knowledge goes it might and it might 
 not be true that the difference in the flow of the Rio Grande in New 
 Mexico had been largely caused by the cutting and burning of the 
 timber, and the eating off of the undergrowth and grass which was 
 the natural covering of the soil. I don’t know personally that 
 there are any sites for storage reservoirs that are practicable on the 
 Rio Grande and its tributaries in Colorado. There are times, even 
 through New Mexico, when the Rio Grande carries much more 
 water than it used to. I don’t know of any reason why the people 
 in New Mexico or the Federal Government for their benefit should 
 not store these waste or surplus waters that run through the Terri- 
 tory of New Mexico as well as insisting that the Colorado irrigators 
 permit the water to come down from Colorado at times when they 
 need it there. The dry months or weeks of the year on the Rio 
 Grande vary. Usually in these three years I have been here the 
 Rio Grande has gone dry some time in April, but last year in 
 March. The year before it was in April, and I think the 
 
 4047 year before it was never entirely dry. Yes, it was, a little 
 later, and it stayed dry until July when the summer rains 
 
 began. I don’t know when they do the irrigating up in the San 
 Luis valley, but my experience in regard to the elevation there and 
 the crops raised would lead me to believe it is not done as early as 
 March. Certainly not. If the irrigation is not done up there in 
 March then that could not account for the dryness in the 
 
 4048 river here in March, but I presume for April and May and 
 June it might. The river is most apt to go dry from Rincon, 
 
 forty miles above Las Cruces, to El Paso. Rincon is in the neigh- 
 borhood of 275 to 300 miles from the Colorado-New Mexico line, and 
 along the river it is about seventy miles from the Texas line. I 
 think that a great deal of the way — although I don’t know defi- 
 nitely — from the Colorado-New Mexico line to Rincon the Rio 
 Grande is drawn upon for irrigation, except from Albuquerque 
 down. It is my understanding that this part of the Rio Grande in 
 New Mexico is used for irrigation, and there is no doubt but what 
 the use of this water for irrigation for a distance of 275 miles from 
 the Colorado line to Rincon would have something to do with the 
 dryness of the river between Rincon and the New Mexico-Texas 
 line. 
 
1084 
 
 THE STATE OF KANSAS VS. 
 
 4049 I know from observation and expermece that there is such 
 a thing as return or seepage waters from irrigation. The 
 
 character of the soil has something to do with the seepage water re- 
 turned from irrigated lands in the same water shed. The general 
 rule is that it is from one-fourth to one-third. I think along the 
 Rio Grande where I am most familiar with it it would not amount 
 to more than one-eighth, because of the sub-soil being adobe, but 
 where it is loose, porous soil or a fairly open sub-soil it would reach 
 maybe one-quarter to one-third. In this climate where evaporation 
 is so great the adobe soil would hold the water and it would evapo- 
 rate before it would ever go down. We made some investigation to 
 find out that it never did go down really in some of the stiff 
 
 4050 adobe soil. It is true to some extent that the taking out of 
 the water in large quantities and distributing it over the soil 
 
 at a time when the flow of a stream is sufficient has a tendency to 
 maintain the flow at a later period when the river would naturally 
 be low. 
 
 The lands in Colorado and New Mexico farmed by irrigation are 
 much more productive than in non-irrigated countries. It will sup- 
 port a larger population for a given area. To a large extent in New 
 Mexico, on account of the other industries depending upon irrigated 
 agriculture, if that were done away with it would depopulate the 
 Territory. I think the lands along the Rio Grande which could be 
 irrigated from the waters of that stream as they exist now without 
 storage could be practically doubled by a proper handling 
 
 4051 of the water — that is, bv intelligent agriculture. While the 
 methods used in the Territory are primitive, I do not think 
 
 they are any more wasteful than in any other sections of the country 
 I have lived in. I have found that where a man has plenty of 
 water that he can have as his own he is wasteful of it, and that is 
 true in New Mexico as well as in any other place I have lived in. 
 The general tendency is to use more water than is necessary to pro- 
 duce a crop. All of the irrigation in the arid district is in its in- 
 fancy to day and by improved methods more land could be irrigated 
 and larger crops could be raised with the same amount of water. It 
 is true that lands irrigated for a considerable length of time will 
 need less water than when first irrigated. That is the gen- 
 
 4052 eral experience. It is true that a stream flowing through 
 this country from the mountains, even when none is taken 
 
 out for irrigation, would diminish to a certain amount. The sur- 
 face flow will grow less if it has no tributaries. 
 
 Recross-examination on behalf of complainant. 
 
 By Mr. Ashbaugh : 
 
 I do not think the people are more wasteful in the use of water 
 for irrigation in New Mexico than in Colorado under similar 
 
 4053 conditions. (Objection by defendants.) I do not think that 
 the more water you take for irrigation from a river the more 
 
 there is in the river. That is not true, no sir. 
 
THE STATE OF COLORADO FT AL. 
 
 1085 
 
 The denuding of the forests affects the time and rapidity 
 
 4054 with which the snows go off. 
 
 The years 1902 and 1903 and the early part of 1904 have 
 been very dry years through this Territory. 
 
 Recross-examination on behalf of defendants. 
 
 By Mr. Dawson : 
 
 If we should take a hypothetical case and sav that 10,000 cubic 
 feet of water per second of time could be taken out of a stream dur- 
 ing the flush season and be spread upon the land and through 
 seepage returned to the stream during the dry season where 
 
 4055 there was only 500 cubic feet per second of time flowing, and 
 twenty-five per cent, of the water used for irrigation should 
 
 return in seepage, then certainly the stream would be increased to 
 that amount. 
 
 Recross-examination on behalf of complainant. 
 
 By Mr. Ashbaugh : 
 
 Not taking a hypothetical case but an actual one, and supposing 
 that the Arkansas river at Pueblo is shown during the last sixteen 
 years to have had an average flow of 750 cubic feet per second of 
 time, and supposing that a dozen ditches are taken out between 
 Pueblo and the Kansas-Colorado State line, many of them large 
 enough to take the whole flow of the river, and that none of them 
 have any reservoirs and that all take all they can get during the 
 dry season of the year, it would certainly use up all the water in 
 the stream. (Objection by defendants.) 
 
 4057 M. W. Mills, Santa Fe, New Mexico. 
 
 Direct examination on behalf of intervenor. 
 
 By Mr. Campbell: 
 
 My residence is located in Colfax county, in the northeastern por 
 tion of the Territory, fifty miles from the Colorado line, about. I 
 have resided there since 1869. I am a practicing attorney. I have 
 also been engaged since coming to the Territory of New Mexico in 
 raising fruit, and I have a cow ranch and a horse ranch, a merchandise 
 department and a law department. I have been engaged in raising 
 crops by irrigation for over thirty years, mostly in Colfax and Mora 
 counties, in New Mexico. Mora county is right south of Colfax 
 county. I have under cultivation 500 acres. I raise alfalfa, corn, 
 oats, wheat, fruits, garden truck, etc. I have about 200 acres of 
 fruit orchard now. I did have about 400. 
 
 The rainfall in and around where my ranch is located is not suf- 
 
1086 
 
 THE STATE OF KANSAS VS. 
 
 ficient to raise crops without irrigation. J depend on irriga- 
 
 4058 tion to raise crops. 
 
 As a lawyer, I know what is known as the doctrine of ri- 
 parian rights concerning the waters of streams. I read it some time 
 ago. If 1 1 1 is doctrine had prevailed in this community I could not 
 have made the development I have spoken of. I am pretty well ac- 
 quainted with New Mexico, having been here thirty-five years or 
 more. I have travelled all over it, and most of Colorado. I should 
 think about five per cent, of the property in Colfax and Mora counties 
 is created by and dependent upon irrigation. We have a 
 
 4059 great deal of railroad in that country, in both counties, also 
 coal mines. The water supply in those counties is very 
 
 limited. There is no cultivation except along the streams where 
 they can take out water. I am reasonably familiar with the condi- 
 tions that prevail throughout the Territory of New Mexico. There 
 is only now and then a place here that will produce crops or hay 
 except by irrigation, and these oasis spots are many, many miles 
 apart. The only way in which crops or any agricultural product 
 can be produced is by irrigatian. Now and then a year, perhaps 
 one year in ten, will, perhaps in some favorable situation on the 
 prairie, produce a crop without irrigation. 
 
 Not all the lands which can be reclaimed have been reclaimed by 
 irrigation in New Mexico. More lands could be reclaimed by the 
 waters of the streams and by impounding and conserving the flood 
 waters — about one-fourth more than has already been re- 
 
 4060 claimed. This matter I have not given much thought to. 
 There couldn’t anybody, because you couldn’t tell where 
 
 reservoirs could be made. That is a question very difficult to 
 answer. 
 
 There is only one principal stream that I know of that rises in 
 Colorado and flows into New Mexico — the Canadian. Oh, there are 
 several, yes. The Canadian river rises partly in Colorado, and the 
 San Juan parti} 7 in Colorado. There have been lands irrigated and 
 reclaimed from the waters of these streams in New Mexico. If the 
 waters of these streams were diverted and used in the State of Colo- 
 rado these lands in New Mexico would absolutely go back to the 
 condition they were in before water was taken out. (Objection by 
 defendants.) 
 
 Cross-examination on behalf of complainant. 
 
 By Mr. Ashbaugh : 
 
 4061 I never heard any one advocate the idea of spreading the 
 doctrine of riparian rights over New Mexico. 
 
 If the State of Colorado should claim that by virtue of her consti- 
 tution and laws and her sovereignty as a State she has a right to 
 control all of the water that rises within her borders and should pre- 
 vail in that claim and should do that, it would affect the Territory 
 
THE STATIC OF COLORADO ET AL. 
 
 1087 
 
 of New Mexico considerably. (Objection by defendants.) 
 
 4062 The amount of return water varies under different conditions. 
 I don’t think the return waters along the Rio Grande in New 
 
 4063 Mexico would amount to from one-eighth to one-fourth of the 
 amount diverted. A very small per cent, goes into plant 
 
 4064 life. I don’t know how much. Five or ten per cent. I 
 don’t believe there would be anything more than about ten 
 
 4065 per cent, that goes into evaporation and plant life. Only a 
 very small proportion of the water that is used for irrigation 
 
 is absorbed in irrigation. If you turn down a big stream and you 
 have one man irrigating with what we call one head of irrigation — 
 I have irrigated, myself — much more than half of it, unless it goes 
 a long way in irrigation, goes away again — goes back into 
 
 4066 the stream. It don’t go into the ground. My condition 
 there where I irrigate is bed rock below it, and I testify to this 
 state of facts because it is bed rock and it nearly all goes 
 
 4067 back. The Arkansas valley has a sandy bottom and it is 
 further to bed rock, hence it would naturally run more in the 
 
 sand and continue along in the sand and not come to the surface so 
 quickly as if the rock or gravel came to the surface, but after a 
 while in my judgment it would all finally get back to the river ex- 
 cept the evaporation. 
 
 4068 I have known the Rio Grande to go dry in the summer 
 seasons many times. These places exist mostly between 
 
 Albuquerque — or from about this latitude down. Above that point 
 it always runs water and down through the Rio Grande canon it has 
 always been a large stream at any time of the year. The portion of 
 the river Jthat we call the Rio Grande canon begins at Antonito, a 
 little north of the Colorado line, and continues down to a place 
 called Embudo, I suppose eighty or a hundred miles. 
 
 There seem to be periods of dry years and periods of wet years. 
 It seems there are periods of more snow fall and periods of more 
 rain, so that I do not think anyone can tell whether the volume is 
 either less or more over a period say of ten years. I suppose that 
 irrigation along the Rio Grande from the upper portions of it 
 
 4069 affects the normal flow of the river, but not perceptibly. I 
 have crossed it more frequently during the years I have been 
 
 here, and in the canon and that place where the river runs you 
 could not discover the difference in the size of the river except in 
 years when it is dry it is less and in years where there is more rain 
 it is more. 
 
 I am not one of those who believe that the more water you take 
 out of a stream for irrigation the more flows in the stream. I do 
 not believe that is true, but I think in a big river like the Rio 
 Grande or Arkansas it is not perceptible unless you take out a good 
 deal of it. If you take it absolutely all out for months right along, 
 of course I think there would be less flow, but there would not be 
 such a perceptible difference perhaps, to a casual observer, and there 
 
1088 
 
 the state of Kansas vs. 
 
 would not be such a percentage as you have recited here is 
 
 4070 given by some professor or somebody who has made those 
 statements. 
 
 Cross-examination on behalf of defendants. 
 
 By Mr. Dawson : 
 
 4071 I have known the Rio Grande for thirty-one years and have 
 crossed it never less than twice a year in that time, and from 
 
 4072 that up to ten times or above that. I do not think there has 
 been any perceptible change in the water that flows in a year 
 
 through the canon up there, aside from the variations in these cycles 
 of dry and wet years or some difference that may have occurred by 
 reason of cutting off the timber at the head of the river. When you 
 pass the bridge and pass the canon the river keeps about the same. 
 
 I knew the Arkansas river thirty or thirty-five years ago all along. 
 I first travelled with a stage. I crossed it many times on a stage 
 coach. I commenced to cross it in 1869. I have crossed it in 
 Kansas when it was dry. I have seen it every year more or less. 
 At dry times of the year you would see the Arkansas river dry in 
 places. You could cross it on foot in places every year. That com- 
 menced back as early as 1869, and there may have been exceptional 
 years when you could not cross it, but I undertake to say to you 
 that you could cross it every year at some points or in some 
 places. 
 
 4073 I have been along the Arkansas river of late years, and I 
 owned land near Hutchinson a year or so ago, but not now. 
 
 My observation has been that the irrigation of lands in Colorado 
 has not materially affected the flow of the Arkansas river in Kansas, 
 taking it in a cycle of years. As I say, it gets dry. Over a period 
 of some years it is drier than over a period of other years. It seems 
 to depend largely on the rainfall in the rainy season and on the 
 snowfall in the winter season. Those two things control the stream 
 more than any other one thing. 
 
 4074 I have never noticed that the taking out of the water and 
 spreading it over the ground in the spring when the stream 
 
 is running full will help to maintain the stream below that point 
 later in the season when the stream would naturally be low, but 
 naturally I would think so. I would naturally think that when 
 the water used for irrigation is absorbed by the lands adjacent to 
 the river necessarily that runs at a little later period of time, and 
 slowly, of course. If there were 10,000 cubic feet of water running 
 in the Rio Grande in the San Luis valley in Colorado, we will say, 
 in the spring, and that were all taken out and spread over the soil, 
 it would be held back simply to return later and keep up the even 
 size of the stream afterwards. In other words, I think it acts as one 
 system of reservoiring water. I have had lands along the Arkansas 
 river in Kansas within the last thirty years and I have not found 
 that they become less productive or have deteriorated in value by 
 
THE STATE OP COLORADO KT AL. 
 
 1089 
 
 reason of the use of the water from that river for irrigation in 
 Colorado. The lands have steadily in the last thirty years contin- 
 ued to rise in value all along the river until their value now is five 
 or ten dollars more than it was thirty years ago. (Objection by 
 complainant.) 
 
 Cross-examination on behalf of complainant. 
 
 By Mr. Ashbaugh : 
 
 4075 I have crossed the bridge at Wichita. I never noticed 
 that the piles upon which the bridge was built were driven 
 down into the river and put below the lowest water mark 
 
 4077 ever known. If those piles were put down in a coffer dam 
 dug down under and below extreme low water, and were 
 
 never seen to protrude above the water until after the year 1890, I 
 would say the indication was that there was less water in the river 
 under those circumstances. 
 
 Q. Have they been taking any water to any appreciable extent in 
 the last ten years at Garden City into ditches? 
 
 A. Well, at times they have. 
 
 Q. Do you sav they have been operating those ditches to any 
 extent whatever for the last ten years? 
 
 A. Some of them are operated. 
 
 Q. Have they been operated now to any extent whatever for the 
 last ten years? 
 
 A. Yes sir. 
 
 Q. They did operate them from about the year 1880 to 
 
 4078 about the year 1887 or 1890, but during the years from about 
 1890 down to the present time have they been able to get 
 
 water enough to operate those ditches? 
 
 A. I think so. 
 
 Q. That is your judgment ? 
 
 A. That is my judgment. 
 
 Q. And that is your information ? 
 
 A. And that is my information. At times of the year there is 
 plenty of water in the stream all the time. In the spring of the 
 year there is plenty of water and after the rains there is water in 
 the stream. They raise large fields of alfalfa there, and they 
 irrigate about Garden City, and between Garden City and the State 
 line in many places they irrigate now and continue every year more 
 or less. 
 
 Q. But to nothing like as great an extent as they did from 1880 
 to 1890? 
 
 A. I am not prepared to sav as co the extent, but they do irrigate 
 now and have more or less all the time. 
 
 4079 Q. If the parties who have lived there all the time and have 
 been irrigating and operating those ditches when they were in 
 
 such condition that they could operate them have testified in this 
 69—7 
 
1090 
 
 THE STATE OF KANSAS VS. 
 
 case entirely opposite to that, would it change your judgment at all ? 
 Might you be mistaken? 
 
 A. A man that had been there all the time observing every day 
 in the month and every day in the year would be able to testify 
 more intelligently than I can by simply visiting it a few times in a 
 year. But I know that the big ditches there are running, and I 
 know there are more farmers there and more irrigation there and 
 more towns there and more agriculture there now than ten years 
 ago. 
 
 Q. You do? 
 
 A. Yes sir. 
 
 Q. You state that as a fact? 
 
 A. I state that as a fact. 
 
 Q. The towns are larger ? 
 
 A. Yes sir. 
 
 Q. More irrigation? 
 
 A. Yes sir. 
 
 4080 Q. Do you know that in some of those counties not one- 
 fifth as many acres of alfalfa is now raised as ten years ago ? 
 
 Do you know that is true? 
 
 A. No, I don’t know that is true. 
 
 Q. If the records of those counties introduced in this case show 
 that, you don’t know that to be true? 
 
 A. I don’t know that to be true. I see more of it going on ; that 
 is what I testify from, what I see. 
 
 Q. And you are giving it simply from your general information 
 that you received when you visited that country? 
 
 A. Yes sir. 
 
 Q. How often have you visited it in the last ten years ? 
 
 A. About ten times a year or fifteen times a year. 
 
 Q. At Garden City ? 
 
 A. Well on the train there; I go by every month. 
 
 4081 Q. Oh, you just go by on the train? 
 
 A. Yes sir. 
 
 Q. Did you go by from August, 1908, to May, 1904 ? 
 
 A. Oh, certainly. 
 
 A. And you saw them irrigating? 
 
 A. I don’t know positively just at that particular period of time. 
 I have no period of time in my recollection; I am just testifying 
 from general memory. 
 
 Q. Do you know the population of Finney county in Kansas 
 now? 
 
 A. No. 
 
 Q. Do vou know what the population of Garden City was in 
 1890? 
 
 A. No, I do not. 
 
 Q. Do you know that the total population of Finney county now 
 is far less than the population of Garden City alone was in 1890 ? 
 
 A. That may be, and I can account for part of it. 
 
THE STATE OF COLORADO ET AL. 
 
 1091 
 
 Q. And yet the irrigation is going on, and yet there was not a 
 drop of water in the river from August, 1903, to May, 1904. Is that 
 true? 
 
 A. There was a period of time when a lot of people Went in there 
 and took up homesteads without irrigation. 
 
 4082 Q. But that was long before the irrigation got fully de- 
 veloped, was it not ? 
 
 A. Well, yes, there was some irrigation going on at that time. 
 Some of them had ditches. A lot of people went in and took up 
 land on the theory that they could raise crops without irrigation on 
 that western arid land, and they found they couldn’t and they em- 
 igrated. A good many of those people went away. Then after- 
 wards there came in an influx of people who understood the situa- 
 tion better and began to take out water for irrigation, and they have 
 been steadily increasing, in my judgment and according to my 
 observation, ever since. 
 
 4084 Redirect examination on behalf of intervenor. 
 
 By Mr. Campbell: 
 
 As used in my testimony, I would call a head of water that which 
 one man appropriates and can use under ordinary circumstances; 
 that which he can work and use on a fair piece of land, etc. 
 
 4085 Thomas B. Catron, Santa Fe, New Mexico. 
 
 Direct examination on behalf of intervenor. 
 
 By Mr. Campbell : 
 
 I am an attorney at law, and have resided in the Territory of New 
 Mexico about thirty-eight years. I have been district attorney for 
 the Territory, attorney general, United States attorney, and several 
 times have held the position of member of the lower house and 
 member of the council of the territorial Legislative Assembly. I 
 was also a Delegate in the 54th Congress. 
 
 I am familiar with the conditions of New Mexico and its 
 
 4086 resources. When I came here New Mexico was very far be- 
 hind its present State of development. When I came here 
 
 the people were using water from nearly all the streams in the Ter- 
 ritory for irrigation purposes — the Rio Grande, the Pecos and the 
 lateral streams that come in from the mountains. As to how long 
 that has been going on I can only state what 1 know from the tra- 
 ditions received from the people and from historical facts, that it 
 had continued for over two hundred years previous to the time I 
 came here. 
 
 Of the property that has been created since I came here more 
 than one-half of it which now exists has been brought under 
 
 4087 a state of cultivation by irrigation. There is not now more 
 than a million and a half acres under irrigation in the Ter- 
 
1092 
 
 THR ST \TE OF KANSAS VS. 
 
 ritory, in my judgment. I believe that fully fifteen million acres 
 can be brought under irrigation by means of using the unused 
 waters and by properly impounding and conserving the flood waters 
 that we have. No part of this development or reclamation could 
 be brought about under the doctrine of riparian rights. If that 
 doctrine should be invoked and maintained, the progress of the 
 Territory would be absolutely paralyzed so far as development in 
 an agricultural way is concerned. The fifteen million acres which 
 can be reclaimed, would when reclaimed be worth from $20 to $50 
 an acre. It is worth now about ten cents an acre, a great deal of 
 it, and some of it from $1 to $1.25. This land when re- 
 
 4088 claimed would support, in my judgment, from two to three 
 millions of people directly. 
 
 Q. Now, coming more particularly to the Rio Grande, state 
 whether or not the waters of that stream have been pretty generally 
 appropriated and applied to lands lying along the stream in New 
 Mexico ? 
 
 (Objection by defendants.) 
 
 A. When I came to the Territory the waters of the Rio Grande 
 were used generally along the bottom of the stream clear from the 
 Colorado line or rather I would say from the Taos canon, which is 
 at La Jolla, south to the line of New Mexico although not to the 
 extent it is used now. There is a great deal of land along the river 
 bottom of the Rio Grande that was then not used and that is used 
 now, but there is quite an amount yet along that bottom that is not 
 being used for agricultural purposes. 
 
 4089 Yes, I know that the appropriations along the Rio Grande 
 in New Mexico have been very materially interfered with by 
 
 the appropriation of the waters in the San Luis valley in Colorado. 
 The flow of water has been very much diminished by the appropria- 
 tion of water up there. (Objection by defendants.) As to the effect 
 upon the property along the Rio Grande in New Mexico if all the 
 waters above the line dividing the Territory from the State were 
 taken out in the State of Colorado, I will sny that in some seasons 
 the water has all been taken out to the line of Colorado, and I crossed 
 the river some years since near the State line of Colorado and 
 
 4090 New Mexico and there was not a drop of water flowing across 
 the line. Every year for the last ten or twelve or fifteen 
 
 years there has been a dearth of water in the Rio Grande, and from 
 "Albuquerque or Los Lunas south nearly every year we have had a 
 flow of a sufficient amount of water to insure crops from that down 
 on the lands actually irrigated, and it has been impossible during 
 the last ten years or more to increase the amount of irrigated lands 
 along that river, although there has been quite an amount of land 
 susceptible of irrigation at an insignificant cost. (Objection by de- 
 fendants.) Of the fifteen million acres of land which can be irri- 
 gated at least nine-tenths of it is Government land. If allowed to re- 
 main in its present condition it will be worth from ten cents to a 
 
THE STATE OF COLOR ADO ET AL. 
 
 1093 
 
 dollar an acre. It is not practicable to make this land profitable 
 and inhabitable without applying the waters of the streams and the 
 flood waters to it, unless you can sink down wells there from which 
 you can pump water at a reasonable rate or which will flow. It has 
 not been shown bv experiments that it would be practicable 
 
 4091 to sink wells. The only place where they can develop any 
 artesian wells or any wells which could be used successfully 
 
 is along the Pecos a short distance above Roswell to Little Artesia, a 
 considerable distance below Roswell. There have some wells been 
 developed out in Roosevelt county that they can pump from. It 
 has always been the usage and custom in this Territory prior to any 
 local law on the subject to use the waters of the streams for irriga- 
 tion purposes. This relates as far back as I have ever heard from 
 tradition or history or in any other way. 
 
 Cross-examination on behalf of complainant. 
 
 By Mr. Ashbaugh: 
 
 The amount of waters up to the present time has been very 
 limited. I think the probabilities are very good and very strong 
 that you could impound sufficient water to irrigate the fifteen 
 
 4092 million acres of land I have mentioned. It was about 
 ten years ago that I saw the Rio Grande dry at the Colorado 
 
 State line. To the best of my knowledge, I think the greater por- 
 tion of the San Luis valley in Colorado began to be irrigated some- 
 thing like twenty-five years ago ; but there was irrigation in the 
 San Luis valley when I came into the Territory, from the Rio 
 Grande, but that extended up around Alamosa, and beyond there 
 there was very little if any twenty-five years ago and it was gen- 
 erally in small ditches and most of the irrigation at that time was 
 done from mountain streams more tha?i from the Rio Grande. In 
 the last twenty-five years the irrigation in the San Luis valley in 
 Colorado has affected the flow of the Rio. Grande in New Mexico, 
 and coming down to within ten years. (Objection by defendants.) 
 The greatest part of those ditches have been so constructed since 
 fifteen years ago (objection by defendants), and I will say that within 
 the last twenty years most all of them have been constructed. 
 
 4093 After the flood waters of the spring have run off the con- 
 struction of those ditches and the use of the water has taken 
 
 nearly every particle of the water in the Rio Grande down to the 
 line between New Mexico and Colorado. (Objection by defendants.) 
 After you pass that line there is quite a large canon that extends 
 down probably eighty miles or more and there are some 
 
 4094 springs that come into the bottom of that canon that furnish 
 some water, and when there is plenty of snow in the moun- 
 tains there are some lateral streams that come in from the mountains 
 that furnish some water, but that is all we get after the flood waters 
 of the spring have run out in the Rio Grande from the line of Colo- 
 rado down. The taking of the waters of the Rio Grande in Colo- 
 
1094 
 
 THE STATE OF KANSAS VS. 
 
 rado by means of those large ditches has almost destroyed the prior 
 irrigation that had been carried on in the Territory of New Mexico 
 from about the middle of the Territory south. (Objection by de- 
 fendants.) We generally had every year, almost, enough water to 
 irrigate down to the center of the Territory from north to south. 
 The irrigation that I spoke of that had been destroyed by this appro- 
 priation of water above was in existence and had been in existence 
 for a number of years prior to the appropriation of water in 
 
 4095 Colorado by those large ditches. (Objection by defendants.) 
 I never heard of any failure of the water of the Rio 
 
 Grande clear to the southern line of the Territory until they 
 appropriated those waters up there. If the Colorado doctrine, 
 that she has the right under her constitution, her laws and 
 her sovereignty to take and appropriate all the waters that 
 rise within her borders regardless of any conditions below, be 
 carried out, it would retard very much and would practicall} T 
 destroy the prosperity of the southern half of the Territory 
 of New Mexico so far as agriculture is concerned and matters 
 growing out of irrigation. (Objection by defendants.) It is abso- 
 lutely true that the subsequent appropriation of the waters of the 
 Rio Grande not only injured prior appropriations and irrigation 
 that had already begun and had been carried on in the Territory of 
 New Mexico, but it has also arrested the further development of 
 such irrigation. (Objection by defendants.) If the water 
 
 4096 from a large number of the mountain streams which we have 
 and which run off quite an amount of water in the spring 
 
 time could be impounded we could still go on and develop a good 
 deal of this unappropriated land included within the fifteen millions 
 I have mentioned, but not anywhere near the extent we would be 
 able to do if that doctrine were not carried into effect that you men- 
 tion as being the Colorado doctrine. I understand that doctrine to 
 be that Colorado has the right or claims the right to appropriate 
 every particle of the water within the limits of the State under her 
 constitutional provision. Should she do that the prosperity of this 
 Territory would be kept back at least one-half or more. In 
 
 4097 speaking of this I base my figures entirely on the Rio Grande. 
 I know of but one other stream that rises in Colorado and flows 
 
 into New Mexico, and that is the Navajo. It is the headwaters of 
 the San Juan river. 
 
 I think there has been much less snow fall in the Territory of 
 New Mexico during the last ten or fifteen years than before; but 
 this year there seems to be nearly as much as they had in former 
 times. Last year it was still lighter, and the lightest snow 
 
 4098 fall I had ever seen. I will state this, that in some years 
 there is much heavier snow fall than in others, and from 
 
 about 1893 down for four or five years there was very little change 
 if any in the snow fall. Probably it was greater than in some years 
 previous and less than it was ten or twelve years previous to 
 
 4099 that. There has been quite an amount of denuding of the 
 forests. Whether that affected the snow fall or not, the snow 
 
TH1C STATE OF COLORADO ET AL. 
 
 1095 
 
 fall since the denuding of the forests does not seem to have been as 
 great nor has it remained on the ground as long. It melted and 
 went off sooner. But whether the amount of snow was affected by 
 the denuding of the forests I do not know, but I judge the melting 
 off was caused to a certain extent by that. 
 
 If the Government should carry out the plan indicated by 
 
 4100 the reclamation act, disregarding State lines entirely, and 
 impound the water wherever it can be practicably impounded 
 
 and devote it to the irrigation of these valleys according to their 
 priorities, it would vastly benefit this Territory. I think that policy 
 can be carried out practicably in this Territory. 
 
 Cross-examination on behalf of defendants. 
 
 By Mr. Dawson : 
 
 In my judgment the reclamation act could not be carried out if 
 the strict riparian doctrine were enforced and that water were to be 
 left in (he streams. It could not be carried out in this Territory 
 except in this way — that if it were left in the streams above and 
 allowed to come down to wherever the Government impounded it, 
 wherever they couid find reservoir sites to impound it, then it could 
 be carried out regardless of riparian rights down to that point, but 
 if it were allowed to flow clear on through the Territory wit hout 
 being impounded of course. the plan of the Government would be 
 inoperative entirely. My judgment is that if the extreme riparian 
 doctrine were enforced throughout the length of the stream, 
 
 4101 then the reclamation act must practically fail. 
 
 I saw the Rio Grande dry first about twenty years ago as 
 high up as the place called Los Lunas. It has not been dry each 
 year since that time, but the water has been exceedingly low from 
 that point down, and the drouth has often extended above that in 
 some years, depending on the amount of water. The stretch of river 
 in New Mexico most apt to go dry as far as running water on the 
 surface is concerned is from about the center of the Territory south. 
 The center is about 150 miles from the Colorado State line. The 
 principal amount of the water that is flowing in the river from that 
 division line to the center line where it goes dry, the majority 
 
 4102 of it, comes from Colorado. About sixty or eighty miles of 
 land from the Colorado State line to this central point are 
 
 not under irrigation, because the river runs through a canon. From 
 that down most of it is, if it is in the river bottom. The drying of the 
 river below the center of the Territory is due not only to the taking 
 of the water in Colorado but also to the taking of the water in New 
 Mexico above on the stream. I have never been entirely to the 
 headwaters of the Rio Grande. I understand that the forests on 
 the Rio Grande and its tributaries in that State are to a great 
 extent denuded. Now, whether the effect on the stream is 
 produced by that fact or not, the flood waters seem to have 
 ceased earlier than they did prior to that time. I mean to say 
 
1096 
 
 THE STATE OF KANSAS VS. 
 
 the higli flow of water, where there was ample for all purposes, 
 down to the point where the water began to fail for agricultural 
 purposes as you got farther down the river. When I first came to 
 the Territory there was ample water flowing in the Rio Grande 
 clear to the southern boundary of the Territory, all along, as much 
 as they needed at that time with the land appropriated. 
 
 4103 There is considerable more land under irrigation now along 
 the stream than there was then, and it has increased as well 
 
 from the center of the State north to the Colorado line as from the 
 center of the State south, but not as great from the center south. 
 Probably the first has fully doubled and the latter has in- 
 
 4104 creased not more than one-fourth or one-third. I should 
 judge in the early times they used for irrigation about three- 
 
 fourths of the water running in the streams. In some years they 
 would take out nearly all of it and in the very early days at El 
 Paso, which is only three miles below the New Mexico line, I have 
 crossed the river there when it was absolutely dry. That was prob- 
 ably thirty years ago. For the first two years of my residence in 
 New Mexico I lived in the southern part of the Territory. From 
 tradition and historical works I have learned that irrigation was 
 practiced along the Rio Grande when this Territory was a part of 
 Spain as well as when it was a part of Mexico; and that is true of 
 that part of the Rio Grande which now borders Mexico proper clear 
 on down to fifteen or thirty miles below the New Mexico line. Back 
 as far as thirty-rive years ago I was down the river there. The lands 
 at Juarez, Mexico, were reclaimed earlier than these up here. 
 
 4105 They were reclaimed earlier than these up here because El 
 Paso was settled first and they had settlements there. So his- 
 tory tells us. These lands are still being irrigated. I know that I 
 have been thirty or forty miles below El Paso on the Rio Grande 
 and that irrigation extends that far, but how much farther I have 
 no idea. I have been interested in large tracts of land along the 
 Rio Grande in New Mexico — in one tract. On the headwaters of 
 the Chama there has been a large amount of timber cut. I happen 
 to own lands up there myself. Quite a large amount of timber has 
 
 been cut there. The Chama is the largest tributary of the 
 
 4106 Rio Grande, as far as I know. I can’t say that I have noticed 
 any effect from the cutting of timber on the Chama except 
 
 that the flood waters seemed to begin to dimish earlier in the year. 
 The snow apparently melts off sooner. There are times of the year 
 when there is a surplus of water in the Rio Grande through New 
 Mexico, you might say from the middle of March up to the first or 
 middle of June. I understand that there are opportunities for im- 
 pounding waters in New Mexico — that there are a number of reser- 
 voir sites that have been set apart by the Government that are said 
 to be good and that can impound those waters, and personally I 
 should say that there are plenty of such sites. There is only one ob- 
 stacle that I can see to prevent the saving of these floods or high 
 
THE STATE OF COLORADO ET AL. 1097 
 
 waters for the use of the people along the streams in New Mexico 
 and that is the ordinary expense of impounding them. 
 
 4107 My observation is that nearly all of the water taken out of 
 any streams has generally been used on the land and very 
 
 little of it returned to the stream. Sometimes water is returned to 
 the stream. I have seen that done. But the great mass of it is 
 never returned. I have seen very little effect from the return seep- 
 age. Our climate is very dry and the soil is naturally dry when 
 the spring time comes and it takes an immense amgunt of water to 
 saturate the soil so that any water will seep back into the river ; but 
 I have never made any particular investigation of that subject. The 
 interests of New Mexico are, directly and indirectly, almost entirely 
 dependent upon agriculture and the outgrowth of irrigation 
 
 4108 in that regard, and the abrogation of the doctrine of irrigation 
 would turn this country back to the desert or to a cattle or 
 
 sheep ranch. 
 
 Recross examination on behalf of complainant. 
 
 By Mr. Ashbaugh : 
 
 I never heard anyone seriously advocate the abrogation of the 
 doctrine of the appropriation of water for irrigation in this Terri- 
 tory. 
 
 I attribute the main and the perpetual loss in the flow of the 
 water of the Rio Grande through this Territory to the use of the 
 water in the San Luis valley in Colorado. 
 
 The legislation on the subject of irrigation and water rights in the 
 Territory of New Mexico reaches back to 1851 and 1852, but there 
 was a system of laws that prevailed here under the Mexican govern- 
 ment for two hundred years before that. At the time the legisla- 
 ture took hold of the matter under the territorial government there 
 had been no legislation on the matter either by the terriorial govern- 
 ment or by the United States. I think New Mexico was the first 
 one that legislated on the subject, unless California might have got- 
 ten hold of it about the same time. 
 
 4110 R. E. Twitohell, Santa Fe, New Mexico. 
 
 Direct examination on behalf of intervenor. 
 
 By Mr. Campbell : 
 
 I am an attorney at law and have lived in New Mexico since 
 December, 1882. I have been district attorney, acting solicitor gen- 
 eral, mayor of the city of Santa Fe and a member of a num- 
 
 4111 ber of boards and institutions in the Territory. ‘I have been 
 assistant solicitor of the Santa Fe road in New Mexico since 
 
 January 1st, 1883. I am pretty well acquainted with the Territory. 
 1 have been connected with the Horticultural Society of New Mexico 
 
1098 
 
 THE STATE OF KANSAS VS. 
 
 ever since its inception. I was at one time a member of the board 
 of regents of the agricultural college. The Territory of New Mexico 
 is situated in what is known as the arid belt. In a very limited 
 area in the high mountain regions of New Mexico there is sufficient 
 lain fall to produce a crop. 
 
 The assessed valuation of this Territory is in the neighborhood of 
 $40,000,000. I should say that practically all of the property 
 
 4112 that is assessed for taxes in New Mexico is dependent "upon 
 taking the waters of the streams and applying them to the 
 
 lands for irrigation purposes, indirectly and directly. 
 
 I own a ranch and have been engaged in irrigation to some ex- 
 tent. I have been one of those statesmen and farmers. I have a 
 fruit ranch in Santa Fe county, eighteen miles from the Santa Fe 
 railroad, on the Santa Cruz, a tributary of the Rio Grande. 
 
 4113 If the plans of the Government under the reclamation service 
 were carried out and the water flowing in our catchment 
 
 areas were properly preserved I should say the irrigated area of New 
 Mexico could be increased from three-quarters of a million to a mil- 
 lion acres. An irrigated acre of land in one valley is worth more 
 than an irrigated acre in another valley. You cannot fix an aver- 
 age value for all. An irrigated acre of land in the Pecos valley is 
 worth more than in the Rio Grande valley. $50 an acre is a very 
 low estimate on an average of what an irrigated acre of land 
 
 4114 is worth. Forty acresof irrigated land will support a family. 
 
 The future of the Territory depends upon the continuous 
 application of the waters of the streams to the arid lands. The prop- 
 ert} r which has been created by irrigation could not have been so 
 created and could not exist if the doctrine of riparian rights pre- 
 vailed in this Territory. Should that doctrine prevail the effect 
 would be that New Mexico would be what it was before there ever 
 was an irrigating ditch taken out and it would become purely 
 
 4115 a pasto’-al country. Crops could not be raised. The doctrine 
 of priority of rights to the waters of the streams have always 
 
 obtained in New Mexico prior to the adoption of any law upon the 
 subject. The doctrine of riparian rights never did prevail here. 
 Should the doctrine of riparian rights prevail in New Mexico the 
 reclamation act of June 17, 1902, would have no force or effect 
 
 4116 whatever here. It would not do us any good. 
 
 I know something of the flow of the Rio Grande river ever 
 since 18S4. It has very radically decreased since 1884 in the lower 
 Rio Grande; and in the upper Rio Grande above the mouth of the 
 Chama — this is only my judgment, based upon observation and 
 statements made to me by engineers representing the Government — 
 the flow of the river above the mouth of the Rio Chama and the Rio 
 Embudo has not increased to any large extent. The mouth of the 
 Chama river is five miles north of the town of Espanola, aiid the 
 latter place is about twenty miles across the country from Santa Fe, 
 or twenty-five miles by rail. The flow of the Rio Grande has de- 
 creased at other locations. South of the Albuquerque, for instance. 
 
THE STATE OF COLORADO KT AL. 
 
 1099 
 
 I attribute that decrease to the deforesting of the mountain 
 
 4117 areas in New Mexico and the rapid melting of the snows. If 
 you would take all of the water out of the Rio Grande above 
 
 the State line it does not require any person to say that it would 
 absolutely destroy all of the irrigated areas ordinarily irrigated out 
 of the Rio Grande in New Mexico until you get as far south as the 
 Rio Chama. The Rio Grande is fed by a number of tributaries 
 flowing into it south of the Colorado line. The Rio Chama at 
 times is a river equal in volume to the Rio Grande ; and 
 
 4118 south of that there are eight or nine streams which feed the 
 Rio Grande and the water from which streams is used for 
 
 irrigating the lower valley. There is very little irrigated area from, 
 the waters of the Rio Grande north of the mouth of the Rio Chama, 
 and the State of Colorado has taken very little of the waters of that 
 stream. Two or three branches of that stream head in the State of 
 Colorado or very close to the Colorado line. 
 
 Cross-examination on behalf of complainant. 
 
 By Mr. Ashbaugh : 
 
 4119 Since the building of the Denver & Rio Grande railroad 
 and the building of the Atchison, Topeka & Santa Fe railr 
 
 road in New Mexico the increase in irrigated area in the water shed 
 of the Rio Grande in Colorado has amounted to about 180,000 acres. 
 The increase in area in New Mexico in the water shed of the Rio 
 Grande does not exceed three thousand acres, and by the Govern- 
 ment reports of the amount of water flowing through the canon at 
 Embudo I cannot sav that there has been anv very marked decrease 
 in the flow of the Rio Grande at that point. If all of the water that 
 is used for the irrigation of the increased area in Colorado were 
 allowed to flow or had been allowed to flowthrough the Rio Grande 
 it would naturally have increased the value of that river. The 
 taking of the water for irrigation purposes through the whole ter- 
 ritory has served to decrease the irrigated area in the lower 
 
 4120 valley, and the normal flow of the Rio Grande. It has had 
 the effect of rendering barren lands that have been at other 
 
 times irrigated in the lower valleys. The flow of the river through 
 the south half of the Territory has been diminished very much. 
 I attribute the decrease in the flow of the river throughout the sea- 
 son of the year when waters are necessarily used for the irrigation 
 of lands to the deforestration of the lands in Arriba county, in the 
 high mountains in which the Chama rises, in the forest reserves, 
 and the rapid melting of the snows in the spring which would have 
 ordinarily remained as late as in July and August. I think the 
 average amount of snow fall in the last ten years, beginning with 
 1890 and ending with 1900, has been less than in any cor- 
 
 4121 responding period prior to 1890. During the present year 
 we have had more snow fall than for ten years. According 
 
 to my recollection, I think from about 1890 to 1893 we had a big 
 
1100 
 
 THE STATE OF KANSAS VS. 
 
 snow in one of those years. There was a very heavy drouth 
 
 4122 about 1893. 
 
 I never heard anyone advocate the idea of having the doc- 
 trine of riparian rights prevail in New Mexico. 
 
 Cross-examination on behalf of defendants. 
 
 By Mr. Dawson : 
 
 I have seen ancient deeds transferring property holdings into the 
 Rio Grande valley which were — one was dated in 1712. That was 
 a deed that was delivered to me when I bought a piece of land in 
 the Rio Grande valley, and by that deed was transferred a right to 
 the Ascequia Madre on the Santa Cruz. The Santa Cruz is 
 
 4123 a tributary of the Rio Grande, its mouth being opposite the 
 town of Espanola in Santa Fe county; and in another deed, 
 
 through the courtesy of General Blanco and a gentleman whose 
 name is Goyot, a representative of the Mexican government, 1 saw a 
 deed in which the Ascequia Madre at what is now the city of Juarez 
 in the Republic of Mexico was mentioned, and that instrument was 
 238 years old. There are remains of ditches in San Juan county, 
 on the Rio de Las Animas and on the Chama which are prehistoric. 
 At the town called Aztec in San Juan county, on the right bank of 
 the Animas river, the existence of an irrigating ditch running from 
 a point opposite the present ruins of a pueblo which was mentioned 
 by Juan de Onate is plainly apparent as far north as what was the 
 Ute reservation, and that was in ruins when he made his 
 
 4124 trip through this country in the 17th century; and in the 
 pueblo of Cochiti there are innumerable ancient ditches taken 
 
 out of the Rio Grande that have been destroyed by floods and new 
 ones constructed ; but the oldest one is the Cochiti, and it has been 
 abandoned for over two hundred years. 
 
 These things 1 have knowledge of through an inclination which 
 I have always had to investigate along archaeological and ethno- 
 logical lines. 
 
 The part of New Mexico which could raise crops without irriga- 
 tion is very limited ; and when I refer to crops without irrigation I 
 refer to the crops designated by the Mexicans as temporal. It is a 
 crop raised entirely by rainfall. In areas above an elevation of 7500 
 feet small grains and potatoes can be raised without irrigation, 
 but t’he area is very limited and would not support any considerable 
 population. 
 
 The tax valuation of the property of New r Mexico is about 
 
 4125 twenty per cent, of the real valuation, and the taxable valua- 
 tion of the Territory is about one hundred millions, and this 
 
 is dependent upon agriculture by irrigation, excepting the railroad 
 property, and of course the latter is dependent to a great extent upon 
 the former. 
 
 I have fished up at Wagon Wheel gap on the headwaters of the 
 Rio Grande. I know that the Denver & Rio Grande Railroad Com- 
 
THE STATE OF COLORADO ET AL. 
 
 1101 
 
 pany has been very diligent for the last two years catting timber on 
 the headwaters of the Rio Grande and its tributaries and I think 
 the cutting of the timber and the denuding of the forest areas has 
 very little to do with the fall of the snow but has everything to do 
 with what we call the run-off or fly-off. You take and cut off 
 
 4126 all the trees or a large portion of the trees in the mountain 
 ranges where the snow is exposed to the sun and the atmos- 
 phere and there is a very pronounced evaporation. I have seen 
 in the higher ranges snow absolutely disappear without any run- 
 off. 
 
 My understanding is from Mr. Arthur P. Davis, one of the Gov- 
 ernment engineers, that from investigations and measurements 
 kept by the Government in the canon about Embudo, the 
 
 4127 water of the Rio Grande has not materially decreased there in 
 that canon. My experience in regard to the denuding of 
 
 the timber is confined to what is known as the Tierra Amarilla 
 grant and the mountain areas of southern Colorado adjacent to 
 that property, through which portion of the country the Rio Chama 
 has its source, and that is the largest tributary of the Rio Grande. 
 There is some irrigation between the Colorado line and Embudo. 
 There is some at Rinconada and other places up there, but 
 
 4128 not enough to make any perceptible effect on the river. There 
 has been a perceptible decrease in the flow of the Chama 
 
 river in the last ten years, but there is but a small part of its 
 drainage area in Colorado, and that part which does lie in Colorado 
 has been practically denuded so far as forests are concerned. Part 
 of its drainage area here in New Mexico has been stripped of its 
 timber. All of that lying along the Rio Brazos and the Rio 
 Chama proper and the Little Chama upon the land grant known as 
 the Tierra Amarilla, with the exception of the spruce growing upon 
 the precipitous portions of that grant, has been cut off. The Tierra 
 Amarilla grant has an area in New Mexico, I should say, of 
 approximately 600,000 acres. The first time I ever saw that grant 
 was in the fall of 1885, and from the town of Chama on the Denver 
 & Rio Grande railroad down to the town of Tierra Amarilla 
 and Parkview it was a continuous body of very heavy pine timber, 
 and that has all been cut off. That distance is about seven- 
 
 4129 teen or eighteen miles between those points. I should say 
 the decreased flow of the Chama in the last fifteen years has 
 been fifty per cent. That is, at times when the water is 
 
 4130 needed. I don’t think the return or seepage water makes 
 any perceptible show in the river. It may get back. I don’t 
 
 know whether it does or not. On the Rio Grande it might come out 
 clear down to Albuquerque. 
 
 The first year in which I saw the Rio Grande entirely dry at any 
 point I don’t remember exactly, but it has been since 1890. There 
 has not been a very considerable amount of irrigation between the 
 mouth of the Chama and Embudo. The valley at the mouth of the 
 Chama is about a mile wide and it narrows up to the canon about 
 
1102 
 
 THE STATIC OF KANSAS VS. 
 
 four or five miles from Embudo at a place called La Joya. I think 
 the distance between those two points is about ten miles. From the 
 point where the Rio Grande crosses the Colorado-New Mexico line 
 there is more or less irrigation all the way from a point about five 
 or six miles below to the Rio Grande railroad bridge below, 
 
 4131 a distance of about thirty miles. It is true that during 
 certain portions of the year there is more water flowing in the 
 
 Rio Grande through New Mexico than is used by irrigators in the 
 Territory along that stream. And that is true practically every 
 } r ear. There is always water passing through Las Cruces, but only 
 for a very small period, and that is owing to very heavy rainfalls 
 and flood waters. 
 
 There are places along the Rio Grande in New Mexico where 
 water could be stored. The Government has in contemplation now 
 the construction of a dam at a place near Engel which involves the 
 construction of a dam which will make a reservoir forty-six 
 miles in length, storing water which will serve to irrigate, not only 
 one year but a subsequent year in the event of the failure of 
 
 4132 water, about 180,000 acres of land. The construction of this 
 reservoir with the flow of the stream as it has been of 
 
 late years would furnish water for the irrigation of lands now under 
 cultivation as well as additional lands, and I believe the construc- 
 tion of this reservoir will serve to add to the irrigated area many 
 miles north of the reservoir. Of course that is hypothetical. 
 
 I have been acquainted with the Arkansas river in Kansas and 
 Colorado since 1873 at Dodge City and near Nickerson and all along 
 the river from about old Fort Lyon to Pueblo. I have seen the Ar- 
 kansas river dry near Nickerson ; that is, no flowing stream ; that 
 was either in the spring of 1877 or the spring of 1878. I have seen 
 it dry a great many times along about Granada and about 
 
 4133 Coolidge and through there. I saw the river at Dodge City 
 in 1873 and there was water flowing in it then. We went 
 
 down to Camp Supply and forded the river, but there was very little 
 water in the river then. Something like knee-deep to the horses. 
 It was probably forty' or fifty feet wide. I have seen the Arkansas 
 river in the last four or five years a raging torrent and at other times 
 I have seen it when there was no water flowing in it at all; and 
 that is true not only in Colorado but away down in Kansas. 
 
 4134 I think the character of the Arkansas river is that sometimes 
 there is a little water and sometimes no water. 
 
 Cross-examination on behalf of defendants continued. 
 
 By Mr. Hayt : 
 
 The most ancient settlement along the Rio Grande in New Mex- 
 ico mentioned by the Spanish explorers is the pueblo of Sail Juan 
 de Los Caballeros, and that is about eight miles north of the town 
 of Espanola. The place called Abiquiu was an ancient pueblo, 
 and the San Juan de Los Caballeros was also an ancient pueblo. 
 
THE STATE OE COLORADO KT AL. 
 
 1103 
 
 According to reports made by the historians of the parties and ac- 
 cording to statements made to me by Professor Bandelier, the Span- 
 iards in their first march up the Rio Grande were at Abiquiu. The 
 town of San Juan de Los Caballeros is immediately across the Rio 
 Grande from the mouth of the Chaina. The Spaniards mis- 
 
 4135 took the Rio Chama for the main river and went to the town 
 of Abiquiu. They remained at the town of Abiquiu for a 
 
 few years and heard of the town of Santa Fe, which was known as 
 the pueblo of Analco and was a big pueblo village. They came 
 over here and changed their headquarters to Santa Fe. The first 
 settlement was at Abiquiu. The irrigating ditches were constructed 
 before that time. The Indians occupied that country long before 
 the Spaniards came here. These were the first Spanish settlements 
 in the Territory of New Mexico. There is a census taken by the 
 Spaniards and a copy of that census is in the archives over here in 
 the surveyor general’s office, which shows the pueblos of San Ilde- 
 fonso, Santa Clara, and others, including a number of pueblos that 
 I cannot recall the names of just now. That census was taken 
 
 4136 about 1798 by the Spanish government. It shows the num- 
 ber of people living in that valley at that time, and that is 
 
 about twice the number that is living there to-day. 
 
 Some of those ditches that were in use then are in use to-day along 
 the Rio Chama. The first railroad was built from Alamosa, Colo- 
 rado, to Espanola, New Mexico, in either 1879, 1880 or 1881. 
 
 I visited the San Luis valley in Colorado first about 1885 or 1886. 
 That valley is about a hundred miles in length and sixty 
 
 4137 miles in width and is very level. According to geologists it 
 was a lake at one time. I think that lake was transformed 
 
 into its present condition there by some great seismic disturbance 
 by which the waters were discharged through that canon — the canon 
 that the Rio Grande flows through now. The water in the San Luis 
 valley is very near the surface. They have artesian water there 
 nearly all over the valley, and the water level of the country 
 
 4138 generally is only four or five feet below the surface of the 
 soil. I know there are a great many artesian wells constantly 
 
 flowing water in the San Luis valley. I visited the large artesian 
 well which lies above the town of Alamosa, up the Denver & Rio 
 Grande tracks, and I have also been at the other one. It has been 
 running for many years. The last time I saw it it was a large flow- 
 ing well. It must have flowed a thousand gallons a minute. 
 
 4139 It must have been six or eight inches in diameter, and the 
 discharge flows into the Rio Grande; but the last time I saw 
 
 it it discharged out on the ground adjacent to the well and found 
 lodgment in the river. I know there are a great many artesian 
 wells there, but I don’t know that there are a great many like that. 
 There are a great many in the town of Alamosa, and they all drain 
 into the Rio Grande, as I understand. The whole drainage of the 
 valley is into that river. Those ditches up there were constructed 
 the first time I went up there; that was aBout 1885; and whatever 
 
1104 
 
 THE STATE OE KANSAS VS. 
 
 seepage Or drainage there may be from the lands irrigated by 
 
 4140 these ditches in that valley goes to the Rio Grande. You 
 take water out of a ditch and spread it over the land and 
 
 there is a certain percentage of it evaporates. That which goes into 
 the ground — now, I am confining this statement to the San Luis 
 valley on account of the peculiar formation of the surface there. 
 There is only one way for it to get out and that is through the Rio 
 Grande. I would not say that exists in other localities. The geo- 
 logical formation is such up there that it could not get out in any 
 other way. Some of that water might eventually get out as far east 
 as the Spring river near Roswell. This San Luis valley is a vast 
 area of country that is nearly level, with the water level of the val- 
 ley close to the surface of the ground, and the drainage of which is 
 through the Rio Grande near the State line between the Territory 
 of New Mexico and the State of Colorado. 
 
 4141 I know there was more snow fall during the ’80’s than dur- 
 ing the ’90’s. And I remember reading in the newspapers in 
 
 about 1884, 1885 and 1886 that the snow fall on the mountain ranges 
 between Antonito and Chama was very large, and about the trains 
 being stalled up there. But I didn’t see it myself. I know that 
 during some of those winters the Rio Grande railroad was put to 
 great expense on account of the excessive snow fall. The construc- 
 tion of all those snow sheds between a point about twelve miles 
 from Antonito and Cumberos shows the snow fall up in that country. 
 There are a great many snow sheds over there. 
 
 4142 Forty acres of irrigated land will support a family with re- 
 sults equal to 160 acres in the Mississippi valley. Ten acres 
 
 of land intensively cultivated will support an ordinary family and 
 make money, and the larger the family the better, if conditions are 
 such as you have them in some portions of Colorado where you 
 raise sugar beets. 
 
 The first time I saw that artesian well in the San Luis valley there 
 was very little water flowing in the Rio Grande above the well, and 
 when we came back to New Mexico I noticed that the flow at Em- 
 budo was about the same as it ordinarily was, and the fact struck 
 me as being very peculiar. 
 
 Recross-examination on behalf of complainant. 
 
 By Mr. Ashbaugh : 
 
 4143 There was very little water flowing in the Rio Grande at 
 Alamosa above the well, not nearly so much as was flowing 
 
 at Embudo. The river was practically dry. The lower end of the 
 San Luis valley is at or near the town of Antonito, and I should say 
 the Colorado-New Mexico line is near a place on the Denver & Rio 
 Grande railroad called No Agua. Below the artesian well I spoke 
 of and flowing into the Rio Grande there are two very good streams. 
 On the left bank of the Rio Grande and coming from the main 
 range of mountains, running down as far as Taos, there are some 
 
THE STATE OF COLORADO ET AL. 
 
 1105 
 
 small streams. These tributaries perhaps would be sufficient to ac- 
 count for the flow of water through the canon even though it was 
 practically all taken out above those tributaries. This was a re- 
 markable thing to me. I do not think there was enough water flow- 
 ing in the Conejos and in the San Antoni to to account for 
 
 4144 all the water at Embudo. I made some inquiries and the 
 theory was advanced for the presence of the water at Embudo 
 
 that there was a very small irrigated area between Colorado and 
 Embudo, and the theory was that at Embudo the water flowed 
 through a subterranean passage into the Rio Grande through the 
 big canon. 
 
 Redirect examination on behalf of intervenor. 
 
 By Mr. Campbell : 
 
 4145 I think the cutting of the timber along the main range 
 from Santa Fe, taking this range of mountains here, clear up 
 
 to the Colorado line and into Colorado, has served to run the snow 
 off earlier in the spring and reduce the flow of water in the Rio 
 Grande at times when it is ordinarily needed for irrigation. I think 
 the cutting off of the timber is the prime cause which has increased 
 or intensified the evaporation. I think it has been the prime 
 
 4146 cause of the disastrous floods we have had. The denuding of 
 the forests I have spoken of continues to the present time. 
 
 4147 This cutting of the timber extends to the Government lands. 
 
 4148 Pedro Perea, Santa Fe, New Mexico. 
 
 Direct examination on behalf of intervenor. 
 
 By Mr. Campbell : 
 
 I live at Bernalillo, seventeen miles north of Albuquerque, and 
 have lived there all my life. Mv father was born there before me. 
 Bernalillo is on the Rio Grande. I have been a member of the 
 territorial council several times, and was a delegate to the 56th 
 Congress. 
 
 Yes, there is land irrigated from the waters of the Rio 
 
 4149 Grande in and around Bernalillo. That is the only way we 
 cultivate lands there — by irrigation. I could not tell exactly 
 
 how long irrigation has been practiced there from the waters of the 
 Rio Grande. Two or three hundred years I suppose. I don’t think 
 there has been any decrease in the area of irrigated land in the 
 vicinity of Bernalillo within late years. Yes, there has been a very 
 material decrease in the water for the last twenty or twenty-five 
 years — twenty years anyway. (Objection by defendants.) As to 
 the percentage, well, the decrease has become in the summer 
 
 4150 time, in the latter part of June and Juty, sometimes almost to 
 nothing. (Objection by defendants.) I have never been up 
 
 70—7 
 
1106 
 
 *ftfE S^ATE OF KANSAS V& 
 
 in Colorado. Of course I have heard and read about these waters 
 that have been appropriated by canals for irrigation purposes there. 
 (Objection by defendants.) These appropriations were made some- 
 thing like twenty or twenty-five years ago. I can’t tell for certain. 
 In my judgment the water of the Rio Grande has diminished in 
 flow since the appropriations in Colorado commenced. (Objection 
 by defendants.) 
 
 4151 I think the appropriations of the waters in Colorado is the 
 reason why the water has decreased here in New Mexico in 
 
 the Rio Grande. (Objection by defendants.) I am somewhat ac- 
 quainted with the lands irrigated from the waters of the Rio Grande 
 below Bernalillo. Between Bernalillo and Albuquerque I do not 
 think the irrigated area has decreased. I am pretty well acquainted 
 with the valley of the Rio Grande to the Texas line. The lands 
 which produced crops along the valley of the Rio Grande between 
 Bernalillo and the Mexico line entirely depend upon the 
 
 4152 waters from the Rio Grande in order to produce crops. If 
 the people along the Rio Grande were not permitted to take 
 
 the water from it for irrigation purposes their lands would be en- 
 tirely worthless, as they are to-day in the valleys above the Asequias 
 and the population would have to emmigrate. 
 
 Cross-examination on behalf of complainant. 
 
 By Mr. Ashbaugh : 
 
 I have never heard anyone in the Territory here advocate the 
 doctrine that we should not take the waters out of the rivers for the 
 purposes of irrigation. I heard that for the first time in connection 
 with the so-called Stevens bill in Congress. That would prevent 
 them from taking the waters. I think the taking of the waters in 
 the State of Colorado and appropriating them, as J understand it 
 has been done in the San Luis valley, has affected irrigated farms, 
 in the Territory that were in existence prior to the taking of 
 
 4153 the water in Colorado. (Objection by defendants.) The 
 taking of that water has arrested the further development of 
 
 irrigation along the Rio Grande in the Territory of New Mexico. 
 (Objection by defendants.) The effect, then, of taking the water in 
 Colorado and appropriating it for irrigation has interfered with and 
 injured and set back the irrigation that was in existence and has 
 had the effect to retard the further development of it after that. 
 (Objection by defendants.) If the Colorado claim should pre- 
 
 4154 vail, that she has a constitutional right by reason of her sov- 
 ereignty to take all of the waters that rise within her terri- 
 tory and flow subsequently into other Territories and other States 
 and to apply all of them within Ler own territory for irrigation, the 
 effect would be that it would render our lands and our property here 
 entirely worthless. 
 
THE STATE OE COLORADO ET AL. 
 
 110 ? 
 
 Cross-examination on behalf of defendants. 
 
 By Mr. Hayt : 
 
 I have heard and read something about the doctrine of ripa- 
 rian rights, very likely, for many years. It is no new matter to me. 
 But I never had any opportunity to talk with the people in the vi- 
 cinity of Wichita, Kansas, in reference to that matter, and I don’t 
 know anything about the claims of Kansas or this Colorado-Kansas 
 controversy except what little I have seen in the newspapers. I 
 know that such a claim has been made from what I see in the news- 
 papers, and of course I hear they are taking testimony, and of course 
 I know that is a fact. 
 
 4155 I will be fifty-three years old next April, and I suppose my 
 earliest recollection of the Rio Grande river will extend pretty 
 
 nearly to that time. I never heard of the river being dry when 
 I was a child, and I was familiar with the river at that 
 
 4156 time. 
 
 I understand your question, that if the testimony should 
 show that there has been no diminishing of the waters atEmbudo — 
 whether in that case I would change my opinion about the taking 
 of the waters in Colorado as affecting the increase or decrease in the 
 Rio Grande, and I say I could not find anything to change my 
 opinion from what I have seen myself, in my own actual experience 
 here at home and below. In other words, I would rather take my 
 own word than anybody else’s, and my actual experience has been 
 with reference to the river in the vicinity of Albuquerque and from 
 there north and south for a distance, and I am not speaking of the 1 
 river in the vicinity of Espanola and north from Espanola 
 
 4157 from actual experience. 
 
 Q. Then if it be a fact that the flow of water in the river has 
 not diminished in volume at Embudo, New Mexico, near the mouth 
 of the canon, you would still be of the opinion that the diminution in 
 the flow of the river in the vicinity of Albuquerque was caused by 
 irrigation in the State of Colorado? 
 
 A. Well, I would still be of the opinion that the experts or who- 
 ever testified there may have made a mistake. I couldn’t change 
 that at all. 
 
 4158 I don’t think they ever had any Government measure- 
 ments at Embudo before they appropriated the river in Col- 
 orado. Now, if they did have such measurements it would not 
 change my opinion, I do not pretend to be an expert in these mat- 
 ters ; I just testify to what I know of my own knowledge. I do not 
 believe that anything would change my opinion from what I know 
 myself, and I atn testifying from my own knowledge as to the flow 
 of the river at Albuquerque and in that vicinity. Before we ever 
 heard or thought of such a thing as a diminution of the waters in 
 the Rio Grande I first began to hear about taking the water away 
 for irrigation purposes in Colorado. It was a few years after that 
 when I first heard about the river getting dry in Valencia county 
 
1108 THE STATE OF KANSAS VS. 
 
 So that is the reason why I always connect it with the application 
 of the waters in Colorado. I have no personal knowledge of 
 
 4159 irrigation in Colorado. I have never seen it ; but I do not 
 take everything I see in the newspapers for Bible truth until 
 
 I have seen it and heard and read of it so often that I think it is a 
 fact that they have appropriated waters up in Colorado. I think 
 this diminution in the flow of the river through Valencia county 
 must have been something like twenty or twenty-five years 
 
 4160 ago. It was an unheard of thing at that time, at least I had 
 never heard of it. My impression is that it was at or about 
 
 the time the railroad came in, after very likely, or a short time be- 
 fore. The railroad was built here in about 1881. It may have 
 been two or three years after that, or a very short time before. That 
 is my impression now. I refer to the Atchison, Topeka & Santa Fe 
 railroad that was built through to Bernalillo. My impression of 
 the Chama river is that once when I saw it it was dry and the other 
 time when I saw it it had some water in it. The ditches in 
 
 4161 my vicinity are cleaned out every season, but they are not 
 enlarged. They are just the same size. None of them has 
 
 been enlarged that I know of. 
 
 Recross-examination on behalf of complainant. 
 
 By Mr. Ashbaugh : 
 
 I know from my own experience that they tried to build what 
 t they called a low line canal above Albuquerque a few years ago, 
 and of course I thought they would take all our water. I 
 
 4162 was the mover in going to the Supreme Court of the United 
 States to prevent them from building it. I did not prevent 
 
 them in law, but I prevented them because they got “broke” be- 
 fore I did. They didn’t get through with the canals. 
 
 I was born on the banks of the Rio Grande and have lived there 
 ever since, and my opinion and judgment are based upon my actual 
 daily observations in this valley during all these years since I was 
 a child. I fix the beginning of the perceptible diminution of the 
 river after those ditches were taken out in Colorado (objection by 
 defendants) and within a very few years after. 
 
 Redirect examination on behalf of intervenor. 
 
 By Mr. Campbell : 
 
 4163 In my opinion the future development of this Territory 
 largely depends on irrigation or the application of the waters 
 
 of the streams to the arid lands. If we can’t find any more lands 
 to irrigate I think we are estopped from any more developments. I 
 am engaged in farming and stock raising. That has been my busi- 
 ness all my life. 
 
THE STATU OF COLORADO ET AL. 
 
 1109 
 
 4164 Solomon Luna, Santa Fe, New Mexico. 
 
 Direct examination on behalf of inter venor. 
 
 By Mr. Campbell: 
 
 I live in Los Lunas, Valencia county, New Mexico. I was born 
 there and have lived there all my life. My father was born there 
 before me, on the same place. The lands that are cultivated in 
 Valencia county are so cultivated by reason of applying the waters 
 of the Rio Grande to them. Entirely so. I should judge there 
 are about 20,000 acres of irrigated land in Valencia county. 
 
 4165 The irrigated lands in that county have decreased within re- 
 cent years about one-third. That is, there is one-third less 
 
 land cultivated now than there was then. The decrease began 
 about 1882. There is not as much water in the Rio Grande as it 
 passes through Valencia county as there was in former years. (Ob- 
 jection by defendants.) This decrease in the flow of the water be- 
 gan along about 1880. I think in 1879 or 1880 was the first time 
 the river went dry to my knowledge. At the present time during the 
 summer months the flow of water in the stream is a great deal less than 
 it was in 1880. (Objection by defendants.) The river was 
 
 4166 never known to go dry before 1880, and since 1880 it has gone 
 dry every summer at some time during summer. I know that 
 
 they irrigate lands from the Rio Grande in Colorado on an extensive 
 scale. I don’t know the exact time when it began to do this, but it 
 was before 1880. (Objection by defendants.) I am interested in 
 irrigated lands in Valencia county. The only reason I can give for 
 the decrease of the water in the Rio Grande in Valencia county is 
 that the water has been taken by those canals in Colorado. 
 
 4167 (Objection by defendants.) The stream began to diminish 
 when they began to take water out up in Colorado. (Objection 
 
 by defendants.) And it has continued to decrease ever since. (Objec- 
 tion by defendants.) We have lost every y ear. Theirrigated area has 
 decreased in Socorro county, which adjoins Valencia county on the 
 south, and also Donna Ana county , the county adjoining Socorro on the 
 south. I should judge the percentage of decrease in those two counties 
 has been about forty per cent. (Objection by defendants.) The 
 
 4168 reason for this is on account of the lack of water. A good 
 many people own lands down there now that they do not 
 
 plant because of the uncertainty of the water, and they cannot 
 raise anything on those lands without irrigation. There is not suf- 
 ficient rainfall to raise a crop. I think the conditions with respect 
 to the rainfall in the Rio Grande are about the same as prevail 
 throughout the entire area of New Mexico. The future develop- 
 ment of the resources of New Mexico entirely depends on applying 
 the waters of the streams and flood waters to what is known as arid 
 land. 
 
1110 
 
 THE STATE OF KANSAS VS. 
 
 Cross-examination on behalf of complainant. 
 
 By Mr. Ashbaugh : 
 
 4169 I am forty-six years old, and have lived all my life on the 
 banks of the Rio Grande, and my father lived in the same 
 
 town. I can’t give the exact year when the decrease in the flow of 
 the river became apparent, except that when it went dry my father 
 was alive, and I think he died in 1880 or 1881. That was the first 
 time I ever saw the river dry at Los Lunas. My father was seventy- 
 two years old when he died. 
 
 If the large ditches in Colorado were practically begun and finished 
 along about 1880 and 1885, this decrease I speak of might 
 
 4170 have been right after that. Of course I don’t know. 
 
 If the Colorado claim should prevail, that they have a 
 right to take all of the water in the streams that rise in Colorado 
 and flow into New Mexico, it would ruin the lands, of course, and 
 depopulate those towns that depend entirely upon their farmers. 
 Most of these towns in the valley from Bernalillo south depend on 
 the water, and if they cannot get the water of course the people will 
 have to leave and go elsewhere to make a living. This taking out 
 of the water above us has not only injured prior irrigation and prior 
 rights of appropriation, but has arrested the further development of 
 our valley. Yes, it has done both of those things. To the best of 
 my knowledge, the appropriations of water through Valencia county 
 were made 200 years ago. The irrigation dates back of that, 
 
 4171 even, and has been continued down to the present time. IJp 
 to about thirty years ago they were getting more land under 
 
 cultivation right along. Every year they got more land under 
 cultivation until the river commenced to go dry, and then they 
 commenced to abandon it, and some of the ditches they have 
 abandoned entirely in my county of account of the loss of water. 
 And this extends through two other counties lying south of Valencia. 
 This material diminution in the flow of the river is most noticeable 
 in the summer months when the water is most needed. 
 
 Cross-examination on behalf of defendants. 
 
 By Mr. Hayt : 
 
 I have heard my father mention that when the river went dry in 
 1879, I think it was, that that was the first time he ever saw 
 
 4172 it dry at Los Lunas, and I know of my own knowledge that 
 it did go dry then. I am not sure whether it went dry in 
 
 1880 or not. If it did it only was for a short time. In 1881 1 don’t, 
 think it went dry, and I don’t remember whether it went dry in 
 1882 or 1883. It has been dry or very low ever since 1879. It has 
 been dry below Los Lunas in all those years since 1879. I have 
 never been on the headwaters of the Rio Grande in Colorado. The 
 tributaries of the Rio Grande in New Mexico above Albuquerque 
 are the La Rlat-e, the Las Animas and the Chama. 
 
THE STATE OF COLORADO ET AL. 
 
 1111 
 
 I know that within the last two or three years the snow fall has 
 been very much less upon the drainage area at the headwaters of 
 these stream than during former times. I don’t know whether it 
 has been as far back as ten or fifteen years. I think three 
 
 4173 years ago we had plenty of snow in the mountains. The area 
 at the headwaters of those streams was heavily timbered dur- 
 ing the earlier years. There has been some timber cut off. I don’t 
 know how much. Yes, there has been a vast amount of timber cut 
 off and the lumber shipped out of the country, and that has been 
 going on, I suppose, ever since the railroads were built. The timber 
 of course retains the moisture and the snow lies on the ground a 
 good deal longer. 
 
 I don’t know anything about the flow of the river in the vicinity 
 of Embudo. 
 
 The appropriations in and about Los Lunas date back two or three 
 hundred years, but I don’t know to what date they relate back in 
 old Mexico, but I don’t think the use of water for irrigation pur- 
 poses in the Republic of Mexico antedated the taking of water 
 
 4174 to any considerable extent in New Mexico. I can’t say that 
 I have ever made any investigation on that point. I think 
 
 that in some of those towns from Bernalillo south the cultivation 
 was begun as early as 1640. I don’t know whether that antedated 
 the cultivation by irrigation in New Mexico or not. I know of this 
 grant that was made to my great-grandfather in 1736 at Los Lunas. 
 That was made to two brothers and they were farmers. They were 
 farming some of the land then. It was granted by the Spanish gov- 
 ernment. 
 
 Redirect examination on behalf of intervenor. 
 
 By Mr. Campbell : 
 
 4175 That grant did not say that it carried an appropriation of 
 water from the river. That was the purpose, I suppose, they 
 
 were getting it for — for cultivation. 
 
 Recross-examination on behalf of complainant. 
 
 By Mr. Ashbaugh : 
 
 The first year I noticed any diminution in the snow fall was 
 about the year 1901. There might be some years, of course, that 
 we had more snow than others. I don’t think there was any ma- 
 terial difference in the snow fall back of there except in the last two 
 or three years it has been less. I think it is a matter of common 
 notoriety and a fact generally known that the snow fall during the 
 winters of 1901-2, 1902-3 and 1903-4 was less than it had been 
 during the prior years. 
 
 There are some grants in my county known as the pueblo 
 
 4176 grants which were given to the Indians. The Isletas have a 
 grant there adjoining us on the north. It was an Indian 
 
1112 
 
 THE STATE OF KANSAS VS. 
 
 grant made by the Spanish government and it must have been prior 
 to our grant, because our grant was bounded on the north by the 
 southern boundary of the Isleta Indian grant. It is my opinion 
 and my belief that the lands in these Indian grants were irrigated 
 for a great many years prior to the grant made to my great-grand- 
 father. (Objection by defendants.) 
 
 Redirect examination on behalf of intervenor. 
 
 By Mr. Campbell : 
 
 4177 Speaking about this Indian reservation, I think there 
 has been a decrease in the area of the irrigated lands there 
 
 within recent years. I should say to the extent of about ten per 
 cent. 
 
 I am treasurer and collector of the county of Valencia, and a 
 member of the Republican national committee from New Mexico 
 and this has been my third term in that position. I testified that I 
 was a farmer and stock raiser. 
 
 Recross-examination on behalf of defendants. 
 
 By Mr. Dawson : 
 
 4178 The farther south you go on the Rio Grande in New 
 Mexico the greater the percentage of the land which is short 
 
 of water for irrigation, and in this Indian grant I spoke of there has 
 been about ten per cent, gone out of irrigation that was formerly 
 irrigated. The next below that is in Valencia county, and there is 
 about 33J per cent, less irrigated than formerly. In Socorro county 
 and Dona Ana county there is about forty per cent. less. I don’t 
 know that this proportion increases south of Dona Ana county. Of 
 course that is the last county south. 
 
 Los Lunas is twenty miles south of Albuquerque and Bernalillo 
 is eighteen miles north of Albuquerque, both in the Rio Grande 
 valley. 
 
 Recross-examination on behalf of defendants continued. 
 
 By Mr. Hayt : 
 
 4179 Albuquerque has about 10,000 inhabitants. They do con- 
 siderable irrigating there on both sides of the river, but more 
 so on the west side. The town is on the east side. Albuquerque 
 obtains its water supply for domestic and other purposes by a pump- 
 ing plant. The pumping plant is north of the town, at the foot-hills, 
 about three miles from the river. What is now the town of Al- 
 buquerque used to be farmed before the town was built — before the 
 railroad came in. The old town is about a mile away from there, 
 toward the river, west of the new town. It is true as shown by tra- 
 
THE STATE OF COLORADO ICT AL. 
 
 1113 
 
 dition and the earliest information that can be gathered that the 
 lands along the Rio Grande were irrigated by the Indians prior to 
 the coming of the Spaniards to this Territory. 
 
 Roswell, New Mexico, February 4-6, 1905. 
 
 4181 Wendell M. Reid, Roswell, New # Mexico. 
 
 Direct examination on behalf of intervenor. 
 
 By Mr. Campbell: 
 
 I reside at Roswell, New Mexico, and am civil engineer and dis- 
 trict engineer in the United States Geological Survey, in the recla- 
 mation service. I came to Roswell from Colorado in 1889. 
 
 4182 I took my engineer’s degree at the University of Vermont, 
 and have been following my profession as civil engineer since 
 
 I was graduated in the class of 1886. My first connection or associa- 
 tion with any irrigation enterprise was in the spring of 1889 when 
 I came to the Pecos valley, first to Carlsbad and then to Roswell. 
 Carlsbad was then known as Eddy. It is about seventy-five 
 
 4183 miles below Roswell. I become connected with the Pecos Ir- 
 rigation & Improvement Company. The purpose of that 
 
 company at that time was to develop an irrigation plant at Eddy, 
 now Carlsbad, and also one near Roswell. I was assistant engi- 
 neer at that time. Nothing h.ad been done by the Pecos Irrigation 
 & Improvement Company when I became connected with it. It 
 was just in its infancy. Subsequently within the limits of Eddy 
 county it constructed what is known as the Lake McMillan dam for 
 the purpose of impounding the waters of the Pecos and storing 
 them ; also Lake Avalon, which is used both as a storage and dis- 
 tributing reservoir. Lake Avalon is six miles up stream from 
 Carlsbad and Lake McMillan is seventeen miles. Lake Avalon 
 was finished in the winter of 1889-1890. Lake McMillan 
 
 4184 was finished in the winter of 1903-4. Lake Avalon subse- 
 quent^ went out and was rebuilt before Lake McMillan 
 
 was finished for the first time. Lake McMillan was designed to 
 submerge eight thousand acres. Lake Avalon dam is about thir- 
 teen hundred feet long. Lake McMillan dam is sixteen hundred 
 and some feet long across the river. I mean the length of the crest. 
 Lake McMillan was designed to submerge eight thousand 
 
 4185 acres ; Lake Avalon about three thousand. Other improve- 
 ments were constructed in connection with these dams, such 
 
 as a system of canals and headgates, laterals, main and sub, quite an 
 extensive flume or aqueduct across the Pecos river, and the neces- 
 sary small headgates, diversion gates, etc. The McMillan dam was 
 designed to hold one hundred thousand acre-feet. I don’t know how 
 much the Avalon dam was designed to hold. Roughly estimated, 
 I should think that in actual construction these improvements I 
 have spoken of probably cost a million dollars. When I came to 
 New Mexico there was no land irrigated directly from the waters of 
 
1114 
 
 THE STATE Ob' KANSAS Vb. 
 
 the Pecos river. There was a little cultivation on what is known 
 as Black river, a small stream, and around Seven Rivers, from 
 some springs, but very slight. 
 
 In 1898 I became chief engineer of the Pecos Valley 
 
 4186 Irrigation Company. At that time there were about 13,000 
 acres of land irrigated in Eddy county. They were in a high 
 
 state of cultivation* and were cultivated from the waters of the 
 reservoirs I have described. That is the only means they had. 
 There is now between 14,000 and 15,000 thousand acres of 
 land cultivated by irrigation from these reservoirs. Before these 
 lands were irrigated they were simply range land and had no 
 value to speak of at that time. They are now selling 
 
 4187 at from $30 to $75 or $80, and sometimes as high as $100 an 
 acre. I was engineer and superintendent of the Roswell 
 
 Land & Water Company from 1894 to 1898. The irrigated area in 
 Chaves county has increased very materially since I came here — 
 nearly fourfold. There are now about 15,000 acres irrigated in 
 Chaves county from the South Spring, the North Spring, the 
 Berrendos and the Hondo. These rivers are tributaries of the 
 Pecos. The Pecos river rises in the mountains to the east and 
 north of Santa Fe. It empties into the Rio Grande on the border of 
 Mexico and the State of Texas almost directly south of this 
 
 4188 point. There is about three hundred miles of this river, I 
 should judge, in Texas. The-lands in Chaves county before 
 
 they were reclaimed had no value except as grazing land, which at 
 that time had hardly any monetary value, not above the Govern- 
 ment price of $1.25 per acre. Some of these lands I have since sold 
 for $400 an acre. On a general average I would sav they would 
 run from one to two hundred dollars an acre. These lands 
 
 4189 are of this value because they have the water supply. The 
 soil and climate are admirably adapted to crops that produce 
 
 great value, but without the water there would he no value. 
 
 The positions I have occupied during the last few years have 
 caused me to study more or less the irrigation problem and the 
 amount of land which can be reclaimed by the waters of the streams 
 at our disposal here. Even with the methods now in use here the 
 acreage can probably be increased seventy-five thousand ; but by 
 improved methods such as are used in many districts where water 
 is very scarce possibly that amount could again be doubled. Some 
 of the land I have in mind that could be irrigated is not worth 
 filing on to-day under any of the Government laws. If it could be 
 reclaimed by the application of the waters of these streams 
 
 4190 here, and whenever it is in a good state of cultivation, though 
 perhaps not a perfect state, it is worth from $50 to $75, and 
 
 as cities and better methods of transportation come it will increase 
 above that. I believe that every forty acres in the Pecos valley will 
 support an ordinary family of five. Of course what they will support 
 in the towns adjacent to it is in addition to that. There is not suffi- 
 cient rainfall in this locality to produce crops — not a paying crop. 
 
THE STATE OF COLORADO ET AL. 
 
 1115 
 
 Some years of course are more prolific than others in rainfall. It 
 surely is necessary in order to develop this country to use the waters 
 of the streams for irrigation purposes. The country would simply re- 
 turn to the condition it was in before irrigation was undertaken if 
 we were obliged to let the waters flow in these streams as they had 
 always flowed before they began to take them out. In that 
 
 4191 case the present population would either have to move or die. 
 
 Well, if we were not permitted to take the water beyond 
 the second 40 back from the river, of course you would catch more 
 in the second 40 than in the first, but it would still reduce the irri- 
 gated area to a very small percentage of what it is now, and in addi- 
 tion to that I might say that the lands adjacent to the stream are 
 frequently not good lands. It is inferior to that which is back of 
 it. That is caused by the fact that most of our waters in the arid 
 country, and especially through the south, are carrying a 
 
 4192 certain amount of detrimental salts or solutions adjacent to 
 the streams. By overflows these salts have been deposited 
 
 and have not leached out, and the land is not as productive as the 
 land back that has not been subjected to these salts. I think about 
 one per cent, of the land which is under irrigation in the Pecos val- 
 ley in Eddy county immediately adjoins the stream, in the first or 
 second 40 back therefrom. 
 
 I am somewhat familiar with the national reclamation act of 
 June 17, 1902. If the doctrine of riparian rights, which is that the 
 waters of a stream should be allowed to run unobstructed and un- 
 affected, should prevail in my district, I do not know of a project or 
 place even thought of that could in any way be benefited by the 
 reclamation act. If we were permitted only to apply the waters to 
 the first and second 40 acre tracts away from the stream the effect 
 would be to completely ruin most of the projects. It is pos- 
 
 4193 sible that some very small ones might be constructed within 
 the limits of economy, but 'none that I have under consider- 
 ation now could even be operated under that. 
 
 Cross-examination on behalf of complainant. 
 
 By Mr. Ashbaugh : 
 
 The Pecos river through Eddy and Chaves counties had a flow 
 in 1894 of something like 450,000 acre-feet. It varies in size from 
 a discharge as low as sixty to seventy cubic feet per second of time 
 up to 83,000 cubic feet per second of time, as it occurred during Oc- 
 tober, 1904. The minimum flow usually comes in the latter part 
 of May to the first part of June, and is then from sixty to seventy 
 second-feet. The maximum flow as a rule occurs in the month of 
 July or August when it gets up to any height. The rains are in 
 the mountains and the river then often reaches 10,000 second - 
 
 4194 feet. Perhaps it would average through the month of July 
 quite often up to three or four thousand. In the winter at 
 
 the present time, without any floods, the flow is probably three hun- 
 
1116 
 
 THE STATE OF KANSAS VS. 
 
 dred second-feet. The river rises in the mountains northeast of 
 Santa Fe and frequently goes dry in the summer above the cross- 
 ing of the Rio Grande railroad at Santa Rosa, but at Santa Rosa it 
 is fed by ever-living springs, which, however, sink at a point about 
 fifty miles north of Roswell, and the river is often dry then from 
 that poiut to a point about fifteen miles north af Roswell, where it 
 is again fed by what is known as Salt creek, another series of 
 springs, Bitter creek adjacent to it, and from there on it is an ever- 
 living stream. As to the bed of the stream, from Cedar canon it flows 
 through a sandstone formation on the surface, with indications of lime- 
 stone beneath. After passing Cedar canon or a point about sixty miles 
 above here it enters and remains in a limestone formation all 
 
 4195 the way in New Mexico. All the water in the river which al- 
 ways flows for about fifteen miles above Roswell, may possibly 
 
 not come from those springs. There may be a possible flow through 
 the sands in the bottom of the river. These waters may come from 
 rains and snows, and are then collected. The Pecos and its tribu- 
 taries are supplied, primarily, from the rains and snows. The river 
 rises up in the mountains where there is considerable snow fall, and 
 that snow begins melting early in the spring, about the latter part 
 of March and through April and into May. I have known seasons 
 in which we could attribute none of the water of the Pecos 
 
 4196 to snow fall. Sometimes possibly^ it does; but in the man- 
 agement of the water in the Carlsbad district I learned not 
 
 to depend a great deal upon the snow fall. I depended almost en- 
 tirely upon the rainfall all along. The snow fall is frequently taken 
 up in the river before the rains begin. 
 
 I don’t know that I ever heard anyone advocate the prevalence 
 of the doctrine of riparian rights in this Territory. 
 
 It would materially affect the amount of water avilable in 
 
 4197 Eddy county if the people of Chaves county, lying just north, 
 should be given the right, and should exercise it, to take all 
 
 of the flow of the Pecos river where it crosses the line between Chaves 
 and Eddy counties. (Objection bv defendants.) If they should so 
 take all of those waters at that point, there might be an un- 
 
 4198 derflow still to the river. It is not beyond possibility. (Ob- 
 jection by defendants.) The river bed is not of solid rock so 
 
 that there could be no underflow. If the people in the county 
 above should take all of the water as last stated, it might 
 
 4199 seriously affect the irrigation projects we have named. (Ob- 
 jection by defendants.) If you put it all in a bucket there 
 
 4200 would be none outside of the bucket. 
 
 In some instances that I have observed of the water that 
 was used for irrigation, fifty per cent, was lost in seepage and evap- 
 oration and leakage — straight out leakage through defective con- 
 struction. Plant life requires but a small part of it; but the evap- 
 oration will be very materially affected by the weather. I have 
 known under evaporation tests for two consecutive days that 
 
 4201 the evaporation one day would be twice or three times as 
 
TH£ STATE OF COLORADO ET AL. 
 
 1117 
 
 great as the other. Different crops require different amounts 
 
 4202 of water. On the surface of water in a reservoir, supposing 
 there was no water lost by seepage, absorption in the ground 
 
 4203 or drawing off through an} 7 conduit of any kind, the loss by 
 evaporation amounted to between sixty and seventy-five 
 
 inches in the course of twelve hours. The atmosphere here during 
 the summer season is very dry and clear. The average precipitation 
 through this part of the Territory, as far back as I have been able to 
 learn from the records, was 15.99 inches. This average was for 
 eight years. It is safe to say that the precipitation in this part of 
 the Territory is about 16 inches annually and in higher parts of the 
 Territory is probably a little more. 
 
 Cross-examination on behalf of defendants. 
 
 By Mr. Dawson: 
 
 I know as a matter of fact that there is such a thing as return or 
 seepage waters from the irrigation of lands. The only studies 
 
 4204 I have made on that subject have been in this vicinity, and 
 each system we have here varies even in the return waters. 
 
 Probably in no point of the Pecos valley that I know of is there over 
 twenty -five or thirty per cent, that we could trace absolutely to re- 
 turn waters, although I have no doubt there are places on different 
 soils where it is greater. But up to that percentage I think we have 
 been able to trace the return waters. Perhaps the best illustration 
 of that is in the Carlsbad district. A portion of that land is very 
 sandy, and it requires a great deal of water on the surface, and it 
 leaches out and returns very rapidly. The stream right at Carls- 
 bad, right as it passes through the town, the normal flow, is consid- 
 erably greater than it was before that system was put in. These re- 
 turn waters move slowly through the soil and at different velocities 
 in different soils. It has a tendency to equalize it for the pur- 
 
 4205 poses of irrigation. For instance, previous to the construction 
 of the irrigation system at Carlsbad the flow at Pecos city, 
 
 Texas, was quite small at some times, as small as it is now above 
 Carlsbad in the river, probably sixty or seventy cubic feet per sec- 
 ond of time. But since the construction of this system and the re- 
 turn of waters from the irrigated lands — from the farmed lands — 
 and possibly waters returning from the reservoirs that are seeping 
 back into the soil and rocks and everything has increased the flow 
 of the Pecos at Pecos city very materially. That is about ninety 
 miles below Carlsbad, by railroad, and of course by the river it is 
 more than that. The irrigated lands along the Pecos extend only 
 about the first twenty miles from Carlsbad, so that after you have 
 passed that twenty miles you then have seventy miles of river which 
 is practically in its original condition so far as the lands lying on 
 either side are concerned. I should say that the flow during the dry 
 time of the year has been increased at Pecos since the lands about 
 
1118 
 
 ^ITE STATE OF KANSAS V3. 
 
 Eddy — now Carlsbad — have been under irrigation. It has 
 
 4206 at least doubled ; perhaps more. 
 
 The stream never goes dry at Pecos since the irrigation 
 began. There is only one system of any considerable size along the 
 river in Chaves or Eddy counties; that is, there are two dams on 
 the one system and they are probably ten or eleven miles apart. 
 There are times when all of the water of the river is taken out at 
 the upper dam. The dam makes the reservoir. The dam is across 
 the valley of the Pecos proper and it just simply stops the river, and 
 it is true that when all of the flowing water in the stream is stopped 
 at this upper dam, we find a good flow of water in it at the lower 
 dam. There are no lands between the upper and lower dams 
 
 4207 under irrigation. That water that is found in the river en- 
 tering the lower dam or Lake Avalon is from numerous 
 
 springs. Some of these springs were in existence before the con- 
 struction of any dam ; others have sprung into existence since the 
 construction of those dams; and it is quite perceptible to-day — the 
 difference in the flow of the river between the time when the upper 
 dam was empty and when it is full, showing that there is water 
 percolating constantly through the earth and through the rocks and 
 replenishing the river below. The rains in the valley of the Pecos 
 are apt to be torrential, so that this river at all times has a very ex- 
 cessive amount of water in it and at other times it has a very small 
 amount. It is important in irrigating to increase the minimum 
 flow — to keep up as high as possible the flow during the dry season 
 of the year, the greatest demand for irrigation purposes 
 
 4208 coming in the month of June in this country. The storage of 
 water and the irrigation of these lands have a tendency to 
 
 maintain the flow during the dry season and thus equalize the flow 
 of the stream the year round. I could sav in illustrating that point 
 that when there was sixty-nine cubic feet per second flowing into 
 Lake McMillan the irrigation system was drawing out of the reser- 
 voir four hundred and fifty feet per second for use in irrigation. 
 
 There is not a large proportionate part of the drainage area of the 
 Pecos that lies in the high mountains where the snow fall is heavy, 
 and there is not any considerable amount of land on the Pecos 
 above Chaves county irrigated. There are small systems there — 
 private ones. A large proportion of the lands are to be found 
 mostly in Chaves and Eddy counties. There are a few in Leonard 
 Wood county and the counties above, but they are irrigated not 
 from the Pecos proper but from a tributary. 
 
 The snows which fall in the mountains, taking one year with 
 another, are of very little value to this end of the river. The. snows 
 go off gradually and earlier than the rains come, and they 
 
 4209 are lost in various ways — by absorption through the sand 
 and bv perhaps percolating into a loose stratified formation 
 
 of rock, and by evaporation. If by chance an early rain comes and 
 moves the snow with that rain then we have “ something doing ” 
 down here at once; otherwise we get very little of it. There are 
 
TttE STATIC OP COLORADO ET AL. 
 
 iii§ 
 
 Sketches of the Pecos river above Roswell where the stream shows 
 no flowing water on the surface during dry times of the year, and 
 that is true independently of the waters of the stream being taken 
 for irrigation. This stream is a perennial one where it comes down 
 out of the mountains. There are times when there is flowing water 
 in the mountains along the course of the stream through those 
 mountains that you may find dry stretches below, independently 
 of the water being taken out for irrigation. For illustration, from 
 Santa Rosa, on the Rock Island railroad in Leonard Wood 
 
 4210 county, to what is known as Cedar canon or Post-office glen, 
 the flow there is perennial! It never ceases. And at the 
 
 same time a few miles below this glen it is frequently in the dry 
 seasons absolutely dry on the surface of the bed of the river and 
 there is not a drop of water taken out in that stretch for irrigation, 
 and as you proceed down the river when you reach Salt creek and 
 Bitter creek again, which is fifteen miles above Roswell and fifty 
 miles south of the glen, it again becomes a perennial stream and has 
 never been dry within the knowledge of anyone. The Pecos is one 
 of that family, such as the Rio Grande and the Arkansas, and those 
 streams which proceed out from the mountains onto the plains and 
 are lost and again take up their course as they get into more humid 
 regions. That family has some characteristics that quite distinguish 
 it from the streams of the eastern or middle States; that is, it is 
 quite apt to be the case. I can cite another stream that dis- 
 
 4211 appears in the same w T ay in the Territory of New Mexico. 
 That is the Mimbres. That stream is over in the western 
 
 part of the Territory and flows through or by what is the town or 
 city of Deming. It rises in the mountains and flows through the 
 Black mountains and is called through there a perennial stream so 
 long as it hangs to the canon or narrow valley. When it leaves it 
 it disappears. The soil is loose and sandy, and even floods that 
 rush down this canon to the extent of destroying homesteads and 
 people are lost entirely, because the Mimbres river has no mouth. 
 
 To generalize, it is true that all of this part of New Mexico — 
 Chaves and Eddy counties — is dependent for its prosperity, the 
 maintaining of whatever development has already been made, and 
 its hope for the future, upon water for irrigation, most assured iy. 
 
 Recross-examination on behalf of complainant. 
 
 By Mr. Ashbaugh : 
 
 In speaking of the river below here, I will explain as to water 
 escaping over the McMillan dam. It is a dam that if the water 
 should escape over it it would not be there fifteen minutes. It is a 
 rock-filled, earth-apron dam. There is water allowed to pass 
 
 4212 through the gates and through the spill-ways that at times 
 of high water will allow it to escape. There are times of 
 
 the year when none passes over or visibly around the dam. The 
 river below the dam is not as large as it used to be. Not imme- 
 
1120 
 
 THE STATE OF KANSAS VS. 
 
 diately below. It is my experience that if you take all of the water 
 of the river there is not as much below as there was if you had not 
 taken it. If I drink up a glass of water there is not much left. If 
 you take the water out of the river and take it back onto land for 
 the irrigation of it and one-half of it or one-fourth of three-fourths 
 of it evaporates and goes into plant life, the part that evaporates 
 and goes into plant life certainly does not tend to supply the flow 
 of the river below. 
 
 Redirect examination on behalf of intervenor. 
 
 By Mr. Campbell : 
 
 4213 The heaviest rain storm I have seen here, I think, was six 
 and a half inches. That fell within thirty-six hours. I have 
 
 seen a torrential storm fall three quarters of an inch in twenty min- 
 utes. No, the rains we have here, not being distributed, are not of 
 much account so far as the use of the water for the cultivation of 
 crops is concerned. I have seen two inches of rainfall fall so 
 quickly here and so rapidly that it did not produce as good results 
 on plant life, on crops, as half an inch falling in a longer time and 
 coming gently, with no run-off, for of the two inches a large per 
 cent, of it was run-off — was gone. 
 
 There is a reservoir being constructed near the town of Roswell 
 under the provisions of the reclamation act. There are 10,000 
 acres of desert and unproductive land set aside for that reservoir to 
 irrigate. This reservoir is known as the Hondo system. 
 
 Recross-examination on behalf of defendants. 
 
 By Mr. Dawson: 
 
 4214 I have made some investigations as to the flow in the 
 Pecos river below the irrigation systems about Carlsbad and 
 
 in the Rio Grande river below the mouth of the Pecos, and the 
 largest amount was made during the contest or suit of the United 
 States against the Rio Grande Dam & Irrigation Company, known 
 as the Elephant Butte suit. At that time I investigated the Rio 
 Grande from El Paso south as far as the mouth of the San 
 
 4215 Juan river, the last tributary that enters before the river flows 
 into the Gulf. I examined all of the tributaries both on the 
 
 Mexican and the American sides in that distance. The conditions 
 of the river as existing before were obtained by me from visits to the 
 inhabitants along the river, and their testimony as to the water 
 marks, high and low, and every thing connected with a case of that 
 kind, and the most authentic and reliable sources of information 
 were to the effect that the floods were probably not as frequent or 
 perhaps on an average not so great as previously, but that 
 
 4216 the minimum or rather the perenniel flow was increased to 
 some extent. Not greatly, because it was a long way off from 
 
 the source of any irrigation plants, but evidently it was not lessened 
 
THE STATIC OE COLORADO ET AL. 
 
 1121 
 
 any wary. And my investigation developed the fact, especially on 
 the Pecos, that the irrigation of lands along it and the Rio Grande 
 tended to equalize the flow of the stream or make it a better avail- 
 able flow. 1 might say that the Pecos below Carlsbad has a greater 
 efficiency for irrigation purposes than she had previous to the con- 
 struction of that irrigation system, unless storage reservoirs were re* 
 sorted to at points farther down. 
 
 Recross-examination on behalf of complainant. 
 
 By Mr. Ashbaugh : 
 
 In the Pecos valley through the counties both ways from, this place 
 our irrigation is by both reservoirs and direct irrigation. The canals 
 that divert the water through storage and then through other canals 
 from the reservoirs are probably fifty times as the direct diversion 
 without storage. 
 
 4217 J. W. Poe, Roswell, New Mexico. 
 
 Direct examination on behalf of intervenor. 
 
 By Mr. Campbell : 
 
 I reside at Roswell, New Mexico, and am president of the Citizens 
 National Bank of Roswell. I have lived in the town of Roswell 
 since 1894, and in what is now known as Chaves county since Novem- 
 ber, 1886. I first came into this immediate vicinity in April, 1881. 
 This county was then known as Lincoln county. For several years 
 I lived near Fort Stanton, west of here. When I first came 
 
 4218 here there was about 150 to 200 acres of land under 
 irrigation in what is know as Chaves county. I should 
 
 say there is now under irrigation in this county from eighteen 
 to twenty thousand acres. I reclaimed land by irrigation after 
 I came here, probably approximating six to eight hundred acres. I 
 was connected with the Roswell Land & Water Company and the 
 Pecos Irrigation & Improvement Company that were developing 
 land by irrigation. These companies I should estimate reclaimed 
 by irrigation about eight to ten thousand acres since 1881. Before 
 this land was irrigated it was worth nothing except for pasture. It 
 was probably worth $1.25 per acre, some of it, and some of it not so 
 much. It is worth now from $10 an acre upwards, according to 
 location and the state of improvements. Some portions that are in 
 orchards would be worth several hundred dollars an acre. 
 
 When I first came here there were no trees to be seen in 
 
 4219 this locality^ with the exception of a scrubby growth on the 
 banks of the Hondo, consisting of hackberry and scrubby 
 
 elms, probably averaging from twelve to fifteen feet in height — per- 
 haps not over ten — and some little tree planting, such as cotton- 
 woods and the like down soheastof here about six miles at the 
 71 — 7 
 
1122 
 
 THE STATE OF KANSAS VS. 
 
 old Cliisum ranch. At the present time there are many thousands 
 of trees in and around Roswell, independent of fruit trees, such as 
 the cottonwoods. Portions of this county in this vicinity, so far as 
 shelter and protection from winds and the influence the tree growth 
 might have upon the climatic conditions are concerned, is equiv- 
 alent to a forest, almost. I should think there were about three 
 thousand to three thousand five hundred acres in fruit trees 
 
 4220 within a radius of fifteen miles of Roswell. This tree growth, 
 both cottonwood and fruit trees, has been produced by irri- 
 gation, so far as I know. The tree growth here could not have been 
 produced to amount to anything without irrigation. In respect to 
 the effect this tree growth has upon climatic conditions, in tn} 7 
 opinion the tree growth, the foliage, has had a tendency to temper 
 and neutralize to some extent the effects of the dry atmosphere. 
 And that is my own experience. That is, there seems to be some 
 more humidity, and so far as my own observation goes I believe the 
 health conditions for some people are better nearer in and around 
 this timber than away from it. We have a zephyr here occasion- 
 ally. It tends, of course, to break the force of the winds very 
 greatly, and in some places in this vicinity d iring the worst wind 
 storms we have you can hardly realize there is a storm on the out- 
 side, from the protection the trees afford. 
 
 Assuming that the assessed valuation of property in this county 
 is in the neighborhood of $3,000,000, and that is only one- 
 
 4221 fifth of the actual value, I should say that from sixty to 
 sixty-five per cent, has been created by and depends upon ir- 
 rigation. The stock interests are very large here, but they would 
 not be so much if it were not for irrigation in the valley. To some 
 extent the live stock interest depends upon the irrigation in the 
 valley. There was no railroad when I came here. The Pecos Valley 
 & Northeastern was built from Pecos in Texas to Carlsbad — it was 
 then called Eddy — and in 1894 was extended to this point. The 
 inducement which brought the railroad here, as 1 understood the 
 situation, was the propsect for the fruit growth by means of irriga- 
 tion and development bv that means. I think that was the 
 only inducement there was, or practically all, to build a railroad 
 in here. 
 
 In a general way, I have given some thought and study to the 
 amount of lands which may yet be reclaimed by the waters we 
 
 4222 have here. From this visible supply of water and from storage 
 I should think the acreage could be increased from seventy- 
 
 five to a hundred thousand acres. When I first came to Roswell 
 there were about twentyfive people here, and probably one hundred 
 and fifty in the vicinit}^ and for miles around. They were ranchers. 
 We now have approximately 6,000 within the limits of Roswell. 
 This population here depends mainly on the irrigation of the lands. 
 There were no banks in Roswell when I came here; we have 
 
 4223 three national banks now. The last report of the comptroller, 
 about the 11th of January, showed somewhere from $700,000 
 
THE STATIC OF COLORADO ET AL. 
 
 1123 
 
 to $725,000 on deposit in these three banks. I have not the exact 
 amount. Conditions in Eddy county, the county below here, are 
 similar to those in this county with respect to property and the 
 manner in which it has been created. 
 
 Cross-examination on behalf of complainant. 
 
 By Mr. Ashbaugh : 
 
 I have had something to do with some of the irrigation interests 
 here. We took the water from the Spring rivers. We have two 
 Spring rivers here — the North and South Spring. We took the water 
 directly from these springs and not from any reservoirs. 
 
 If after we had gotten our system all established someone had 
 just gone above us on those streams and taken all of the flow, that 
 would have deprived us of water for irrigation, if they had 
 
 4224 taken the whole supply, and it would have ruined our proj- 
 ect if they had taken it all. I don’t think it would have 
 
 satisfied us and supplied us with water for such parties above us 
 simply to say “ You will get the return waters from my irrigation 
 some time in the future.” (Objection by defendants.) 
 
 Cross-examination on behalf of defendants. 
 
 By Mr. Hayt: 
 
 4225 I resided in western Texas immediately before I came to 
 this Territory. I was engaged in farming some little in Mis- 
 souri, and Kentucky, my native State, and I know something about 
 the conditions concerning agriculture there. In a general way, I 
 should say an acre of land here properly irrigated would produce 
 nearly if not quite as much as three times what an acre would pro- 
 duce in Kentucky where I was born and raised, twice to 
 
 4226 three times as much, and in value more than that. I am 
 speaking now of crops produced here under irrigation farm- 
 ing as carried on at the present time, and I believe that this could 
 be greatly increased by what is known as intensive farming by irri- 
 gation. We have some instances here of intensive farming where 
 the land owner is cultivating a small acreage in fruit or in crops 
 that require great labor, such as celery and some other things of 
 that kind, and I think under favorable conditions as you have 
 stated twenty acres of land will support a family. I think I know 
 of instances here where a less number of acres than twenty are now 
 
 supporting a family of five. It would be possible by care- 
 
 4227 ful cultivation in this vicinity with sufficient water for irriga- 
 tion, that a family of five could be comfortably supported 
 
 upon ten acras if they were near a good market and applied the 
 proper judgment as to the kind of crops, etc. I believe it would be 
 possible to support a family of five on ten acres. I am inclined to 
 think this will be the result of improved methods of farming and 
 
1124 
 
 THE STATE OE KANSAS VS. 
 
 horticulture in this community. Something approaching that ulti- 
 mate result. 
 
 The assessed valuation of this property approximately is about 
 $3,000,000, something over that, and I should say that that is thirty- 
 five to forty per cent, of the cash value. I think the railroad 
 
 4228 company is the heaviest tax payer in the county. As I 
 understand it, that portion of the railroad from Roswell 
 
 north under some act of the legislature was exempted for a certain 
 number of years from the time of its building — five years — from 
 taxation. My estimate, made on short notice, is that sixty per cent, 
 of the property in this county in value is the result of iriigation. 
 These lands that have been reclaimed by irrigation have been irri- 
 gated from the two Spring rivers and the Berrendo and the Rio 
 Hondo in this county. They are tributaries of the Pecos. 
 
 4229 S. Atkinson, Roswell, New Mexico. 
 
 Direct examination on behalf of intervenor. 
 
 By Mr. Campbell : 
 
 I reside in Roswell. I am claim adjuster and land tax agent for 
 the Pecos Valley & Northeastern, or the Pecos lines. I am also in 
 the abstract and land business. I have lived in Roswell since 1898. 
 I lived in Eddy formerly. The assessed valuation of Chaves county 
 for 1904 as made by the assessor and passed by the board was 
 $3,004,822. There was added to that by the assessor what they 
 call “ additional ” which approximates $50,000. In this county 
 the railroad from here to the State line is exempt from taxa- 
 
 4230 tion. About fifty-four miles of it is in Roosevelt county. 
 By statute, railroad property is exempt from taxation for six 
 
 years after the railroad is built, and this road was finished in Feb- 
 ruary, 1899. That part of the railroad that is taxed in this county 
 is assessed at $3,500 a mile. This valuation does not represent the 
 true value. The assessed valuation in the county represents about 
 thirty-five per cent. That would be a big estimate. I should 
 think there are twelve millions of property in Chaves county. 
 
 I am familiar with the conditions prevailing in this county as 
 to its irrigated land and what that property and valuation depends 
 upon. I should say seventy-five per cent, of this property is de- 
 pendent directly and indirectly upon irrigation. Ninety-five 
 
 4231 per cent, of the population in this county is dependent upon 
 irrigated lands. I am acquainted with the conditions in 
 
 Eddy county. I have made an abstract of the lands in that count}’ 
 and know the lands under irrigation there. I should say that a 
 little more of the property in that county has been created by and 
 depends upon applying the waters of the Pecos and its tributaries 
 to the lands for the purpose of raising crops. We would not have 
 much use for a railroad here if we did not have irrigated lands. 
 
THE STATE OF COLORADO ET AL. 
 
 1125 
 
 The railroad was induced to come here entirely by reason of the 
 irrigation development and the irrigation of the lands or the pos- 
 sible irrigation of the lands. The whole length of the line is 370 
 miles from Pecos to Amarilla. 
 
 Cross-examination on behalf of complainant. 
 
 By Mr. Ashbaugh : 
 
 4232 Our property interests are largely dependent upon irriga- 
 tion. If some one just above us should take all of our 
 
 water it would, except in flood times, deprive us of irrigation al- 
 most entirely, with the exception of the little seepage water we 
 could get. (Objection by defendants.) We could not retain our 
 present civilization, our present property and our present values 
 simply upon the theory of return or seepage waters to the extent it 
 is to-day. (Objection by defendants.) This would not ex- 
 
 4233 ceed ten or fifteen per cent. (Objection by defendants.) 
 Taking the waters above us for irrigation and applying them 
 
 in some other county or some other State would more or less affect 
 our interests in this part of the Territory. (Objection by defend- 
 ants.) 
 
 4234 William G. Hamilton, Boswell, New Mexico. 
 
 Direct examination on behalf of mtervenor. 
 
 By Mr. Campbell: 
 
 I have resided in Boswell since 1898, and before that resided in 
 Carlsbad, New Mexico, or what was formerly called Eddy. Before 
 coming to New Mexico I resided in the San Luis valley in Colorado 
 for ten years. In that valley I was engaged in the construction, 
 maintenance and operation of irrigation works. After I came to 
 New Mexico I was assistant general manager of the Pecos Irrigation 
 & Improvement Company and general manager of the Boswell 
 Land & Water Company, and afterwards general manager of the 
 Pecos Irrigation & Improvement Company. After I came to 
 
 4235 Boswell in 1898 I had charge of the Boswell Land & Water 
 Company, an irrigation project, the canal now known as the 
 
 Feliz Irrigation Company’s canal, the Pecos Valley and Orchard 
 Company, and other enterprises. These different companies that I 
 have been connected with m Colorado and New Mexico were all 
 engaged in the development of lands by irrigation. I have had 
 twenty-one years’ experience in this business. There are some 
 twelve to fourteen thousand acres of land, I think, under cultiva- 
 tion in Eddy county, New Mexico, by irrigation. The water is 
 taken from the Pecos river to irrigate this land. In Chaves county 
 there is approximately from seventeen to twenty thousand acres irri- 
 gated. The lands in neither of these counties could produce crops 
 
1126 
 
 THE STATE OF KANSAS VS. 
 
 from one year to another without applying the waters of the streams 
 to irrigate them. If you should deprive these lands of the water 
 they now have they would not be worth to exceed $1 an acre. 
 
 4236 It has been agreed by competent authorities here tli at ap- 
 proximately 100,000 acres in addition could be irrigated 
 
 and put under cultivation in Chaves and Eddy counties with 
 the waters that are at the disposal of the people here, in these 
 different streams, and by reservoirs or by impounding them in 
 reservoirs. The majority of that land now is worthless except 
 for grazing purposes. Were it irrigated under a reasonably 
 good system it would be worth $40 to $50 an acre on an average. 
 This 100,000 acres would easily increase the population a thousand 
 per cent., including towns, etc. The crops which the land here is 
 adapted to produce and which it does produce are alfalfa, fruit, 
 Indian corn, the various families of kaffir corn and unsaccharine 
 sorghum, and all sorts of vegetables, sugar beets, celery, can- 
 
 4237 taloupes, grapes, peaches, apples, pears, prunes, cherries, etc. 
 I know of one man here who makes a living for himself and 
 
 family on three acres of land. I should judge the average is twenty 
 acres for a family of five. We could not raise ordinary trees here 
 for timber and lumber purposes without irrigation. There is in the 
 neghborhood of 2,500 acres of land in orchards here. A five year 
 old apple orchard here is worth $500 an acre. 
 
 The rule here is to take the water just as far from the 
 
 4238 stream as the contour of the land will permit. If we were 
 confined to lands bordering on the stream, say forty to eighty 
 
 acres back, it would absolutely destroy our system of agriculture. 
 
 Cross-examination on behalf of complainant. 
 
 By Mr. Ashbaugh : 
 
 Some of our ditches or canals take the water from the river in this 
 particular locality back as far as seven miles. Our fruit interests 
 here are in a very high state of cultivation. Apples, peaches 
 
 4239 and pears took some of the highest premiums at theCoiumbian 
 Exposition. If some one should go above us on the stream 
 
 and take all of the water that we now use for irrigation, its effect 
 upon the stream below depends a good deal on the stream. If they 
 should take all of the water out of the Pecos river a few miles above 
 here it would have no effect, in my opinion, on the supply of water 
 in Carlsbad and below there. Wedammed the Pecos river twice and 
 absolutely shut off all the water, and yet there is a larger supply 
 below at the period of low water than there was previous to the 
 dams being put in, at the present time. This is anywhere from the 
 town of Carlsbad to Pecos City, which I believe is the lowest point 
 at which any measurements have been taken. From my observa- 
 tion I know that the flow of the river has increased at least a hun- 
 dred per cent, at low water fifteen miles below Carlsbad. We 
 
 4240 dam the river and shutoff all the water supply. The water 
 does not begin to rise to any appreciable extent for five or six 
 
THE STATE OF COLORADO ET AL. 
 
 1127 
 
 miles as the river runs, and below the dam the river is not absolutely 
 dry. There is no place where vou could cross it dry-shod. That water 
 comes below the dam from seepage. But where the seepage comes 
 from no one is absolutely able to tell. It comes from some point on 
 the Pecos, either from the reservoir, or, following the limestone 
 strata, from above the reservoir. By building our big reservoirs we 
 store the surplus water and we find that to be a profitable, 
 
 4241 economical and suitable method. If there were no reservoirs 
 and all of our irrigation depended solely upon the ditches 
 
 and the ditches simply taking their water from the surface flow of 
 the Pecos river, then if somebody should take all of the surface flow 
 of the Pecos river above, that would have an effect upon the river 
 below but would not destroy it in that stream. (Objection by de- 
 fendants.) This is because of the great underflow. There is an under- 
 flow in the Pecos river. It would not affect the underflow. They 
 have not yet de?Tsed any system to take all of the underflow, but if 
 they should lake all of the underflow out of course it would 
 
 4242 destroy the vaiue of property. 
 
 The climate here is dry and arid, and our precipitation is 
 about 16 inches on the average, I am told. I don’t think, myself, 
 that it is so great as that. I have never kept the records, except at 
 Carlsbad, and for ten years the highest we had there was thirteen 
 inches. It is probably higher here, because we have a great deal 
 more timber now. 
 
 Cross-examination on behalf of defendants. 
 
 By Mr. Hayt : 
 
 I have had twenty-one years’ experience in irrigation. I com- 
 menced about the year 1881, in May, in the San Luis valley in Col- 
 orado, and we took the water from the Rio Grande. The enterprises 
 I was connected with were known as the Citizens’ canal, the Del 
 Norte, the San Luis and the Empire — four canals which were build- 
 ing simultaneously under the same management. The Del Norte 
 at the head gate was eighty feet on the bottom, running down 
 
 4243 to twenty, I think, in the course of forty miles. The Empire 
 was ten miles lower down the river and was of the same size, 
 
 and the San Luis forty feet. They were under construction when I 
 went to work in 1884. I believe they were begun in 1882 and were 
 completed about 1888, but they began farming under them in the 
 spring of 1885. Thej r did not begin to take anv considerable amount 
 of water until 1886 or 1887. The San Luis valley is really a park about 
 one hundred and twenty miles long and sixty miles wide, with a very 
 slight fall from the northeast to the southwest not to exceed ten feet 
 to the mile. It is surrounded by mountains on either side, and 
 the Rio Grande breaks through a narrow, rocky box-canon at 
 the extreme southeast of the valley. I believe that geological 
 history says it was once a lake. The drainage is all into the 
 
 4244 Rio Grande through the canon into New Mexico. The water 
 level is very near the surface of the land. I noticed the 
 
1128 
 
 THE STATIC OF KANSAS VS. 
 
 seepage from irrigation in the San Luis valley at Alamosa, which is 
 probably fifteen miles below any of the large canals, and whatever 
 seepage water there is in that valley must flow through the canon 
 below. The company that I was with in the last years I had charge 
 there put down not less than a hundred artesian wells, and it was 
 demonstrated by sinking those wells that there was a solid limestone 
 formation all over, a rock formation extending throughout the val- 
 ley, and the soil was of the character of an alluvial deposit 
 
 4245 on top of that. We would strike different water courses or 
 bodies of water almost to the surface as far down as we went. 
 
 They began at about fourteen to twenty feet. The mountains that 
 the Rio Grande drains have been almost denuded of timber. At 
 one time there were very heavy forests everywhere and now the 
 mountains are nearly all bare. 
 
 I don’t know from personal knowledge in regard to the snow fall 
 in late years, only from newspaper reports, but I know that the snow 
 fall in the last ten or fifteen years has not been available for irriga- 
 tion for any length of time. On account of the timber being cut 
 from the mountains the snow melts all at once and comes with a 
 great rush, and we have floods in the Rio Grande, whereas formerly, 
 when I first went to the country the snow water would last some- 
 times until September. Now it is all gone in June. All of the tim- 
 ber from the headwaters of the Pecos is absolutely gone now. I 
 don’t think there is any timber anywhere along the course of the 
 Pecos or any of its tributaries. We receive no benefit here from the 
 melting snow along the area at the headwaters of the Pecos 
 
 4246 river. The flood waters that are stored in the reservoirs here 
 come during the local rainy season and not from the snow. 
 
 We get our heaviest supplies of water in May, June, July or August 
 when there is rain in the valley and in the territory immediately 
 adjacent. The floods in the Pecos river at this point come from 
 rain almost entirely. The most destructive flood we ever had was 
 when it rained the entire length of the Pecos from Colorado to the 
 Texas line. There are three dams across the Pecos — two belonging 
 to the Pecos Irrigation Company and one being an enterprise owned 
 by the Public Utilities Company, I believe, in Carlsbad — a power 
 dam. Those dams are so constructed as to take the flow of the 
 water in the river so far as possible. They are absolutely tight. 
 And all the water that escapes from the reservoirs is under control 
 and is used for irrigation, except in flood times when it 
 
 4247 passes around over spill- ways constructed for that purpose. 
 
 At six miles above Carlsbad, at Lake Avalon, there is an 
 absolutely tight dam, and the river is turned into the canal. There 
 is absolutely no flow there below the dam. Six miles below in the 
 bed of the river, with no other supply except from some spring or 
 seepage, there is a power dam across the river, and they run an elec- 
 tric pumping and water service, and all that from the power gener- 
 ated from this water. That will give you some idea of the flow at 
 this point. That water all rises within six miles. And I know that 
 
THE STATF OF COLORADO KT AL. 
 
 1129 
 
 the river continues to increase below. Twenty miles below that 
 point there are some tributaries coming in to furnish a supply in the 
 ordinary season. The Black river would be the first one, 
 
 4248 which is a very small stream supplied by springs. The best 
 place I have to judge from my own personal knowledge is at 
 
 a point where we had a dam across the river eighteen miles south 
 of Carlsbad. That is twenty-four miles from the last reservoir; a 
 dam belonging to the Hagerman Land & Improvement Company. 
 There is at that point now more than double the amount of water 
 running that we had when we first constructed it in low water at 
 the lowest time of the year, and that difference in my judgment is 
 to be accounted for altogether by the seepage from the irrigated 
 lands above, and I am sure that the amount of seepage water is in- 
 creasing year by year. They have been irrigating there now for 
 more than ten years, and underground channels have formed so that 
 there are hundreds of springs that are perfectly invisible coming out 
 of the banks below water. There are thousands of them that were 
 absolutely unknown in the early years of the development of that 
 enterprise. 
 
 4249 It would have been impossible to create or maintain any 
 irrigation enterprises in any place I have ever been under the 
 
 doctrine of riparian rights, for the reason that nearly all of the west- 
 ern streams — the streams in the arid country where it is necessary 
 to irrigate — are subject to torrential rises and the land immediately 
 adjoining the river almost everywhere is submerged once or twice 
 every year, and sometimes more, according to the rainfall and snow 
 fall and their locality. Taking the Pecos river and the local con- 
 ditions here, at one time a few months ago all the river bottom any- 
 where in Eddy and Chaves counties was under water for two weeks; 
 and not only that but nearly all of the river bottoms were rough. 
 The land is not susceptible of irrigation, because it has been cut so 
 much by floods at different times for centuries that the lands along 
 the immediate banks of the river are never smooth enough to irri- 
 gate without such an enormous expense that it would have 
 
 4250 put off any work of that sort for probably another century, 
 and for this reason it would be necessary to carry these ditches 
 
 back onto the higher lands even if you were only to irrigate the 
 lands riparian to the river, because it is necessary to get above the 
 land in order to get the gravity flow to cover them. 
 
 I know of one tract of three acres of land here that has supported 
 a family for the last year or two and furnished a surplus, and that 
 was planted to stuff that was used for making pickles — celery and 
 such things. The man raised all the material on his three acres of 
 land. He and his wife put the stuff up here and sold it in town, 
 and they have made a great deal more money per acre than the 
 people who have planted alfalfa on their lands in large tracts. It 
 produced a net return of $600 per acre. 
 
 The measurements of return waters are very difficult in most 
 localities. In the San Luis valley we were able to estimate them 
 
1130 
 
 THE STATE OF KANSAS VS. 
 
 quite accurately on account of the rocky canon down below where 
 the water went through, and at an early stage in the development 
 of that country, when we had irrigated but eight years, the Govern- 
 ment, engineers estimated that sixty-five per cent of the water di- 
 verted from the stream had been returned to it by seepage, and from 
 my experience I know that the return water is large. 
 
 4251 Cross-examination on behalf of defendants continued. 
 
 By Mr. Dawson : 
 
 My observation has shown me that the taking out of the waters 
 in tlie San Luis valley at a time when the river was high has in- 
 creased the flow of the water in the low period through the canon 
 down near the New Mexico line at the time of the year when the 
 stream was naturally low, and that is about July and August. The 
 flush time in the San Luis valley in the Rio Grande is May and June, 
 and that is the time of the heaviest irrigation, and during the flush 
 time the waters in that river are greatly in excess of what are spread 
 over the valley. The amount spread over the lands during 
 
 4252 the flush season is a great deal in excess of the normal flow 
 in the river in the dry seasons. I should think there is four 
 
 or five times as much water used in the heavy irrigating season as 
 the normal flow of the river at low water, and I know of my own 
 knowledge that if the return waters as shown by measurements are 
 sixty-five per cent, of that diverted from the river the comparative 
 flow of the river in the dry season at the canon since irrigation has 
 been practiced is very much larger than it was before. There is no 
 natural flow in the Berrendo and the Hondo rivers from which the 
 Northern canal takes its water, except from the return and seepage 
 waters and the flood waters of the Hondo; but the latter is only 
 used on rare occasions, and aside from those rare occasions that 
 canal draws its water from the return or seepage waters, and it irri- 
 gates seven thousand acres of land. 
 
 4253 Recross-examination on behalf of complainant. 
 
 By Mr. Ashbaugh : 
 
 My recollection is that there are eight large canals in the San 
 Luis valley. There may be a good many more now. Supposing 
 those canals are located so that the one uppermost, No. 1, coining 
 down the river, during irrigating season and during the dry season 
 of the year, would take all the water of the river, and then the next 
 one was located below the point where the return waters from No. 1 
 would get back to the stream — and that condition has happened up 
 there very often — then No. 2 will not get as much as though No. 1 
 were not in existence. If No. 2 again takes all of the water that 
 goes past or through or around the dam and all the return waters 
 from No. 2 return to the river above the headgate of No. 3, then 
 
THE STATE OF COLORADO ET AL. 
 
 1131 
 
 No. 3 will certainly get less water than though Nos. 1 and 2 
 
 4254 were not in existence. If these conditions should be re- 
 peated, certainly you would get less water each time, and 
 
 under these conditions indicated each of them on down the river 
 would get less than it would have gotten of those above had not 
 been in existence. 
 
 4255 The return waters that would flow finally into the canon 
 from the San Luis valley would be from the whole country. 
 
 It would find its outlet along the lowest point. The amount of 
 waters that flow into the canon comes from the waters which are 
 spread out all over the valley. The canals run in different 
 
 4256 directions; they do not all run parallel. If all the water is 
 taken by the lowest canal and all of the return waters return 
 to the river above the mouth of the lowest canal, I am not 
 
 4257 able to answer your question as to how much will get into 
 the canon. If you have a series of canals along a stream 
 
 that is not supplied by tributaries and each one of them is located 
 down the river below the one above so that the return waters from 
 the one above get back into the river above the mouth of the one 
 below it, the amount of water that is left in the river below the 
 lowest canal, when each of them is taking the full flow, is simply 
 the amount of return water from the lowest canal, when it is all 
 taken out in that way. That never has happened in my experience. 
 
 Recross-examination on behalf of defendants. 
 
 By Mr. Dawson : 
 
 I have never known of any conditions, geographical or topograph- 
 ical, that correspond to the set of hypothetical questions that counsel 
 has just been asking me. That is not the condition as it 
 
 4258 exists in the San Luis valley at all. These return waters 
 that I spoke of in answer to his question were largely made 
 
 up of waters which were taken bv the canals at a time when the 
 water was flush and there was a surplus in the river for all canals ; 
 so that the return waters which are flowing at the time of the dry 
 season are not necessarily the waters that are simply coming back 
 from the lands to which waters are being applied at that identical 
 moment by canals above. In some cases it takes years, and did in 
 that valley, for the waters to find a channel to the river; and aside 
 from all possibilities based upon hypothetical conditions, which I 
 say do not exist, it is my observation that during the period of low 
 water in the river the flow of the stream at the canon where it leaves 
 the San Luis valley is better maintained and carries more water 
 than before irrigation was commenced in the valley. It carries a 
 great deal more water. 
 
1132 
 
 THE STATE OF KANSAS VS. 
 
 Recross-examination on behalf of defendants continued. 
 
 By Mr. Hayt : 
 
 4259 It is the universal practice in the Pecos valley to carry the 
 canals to the highest possible contour line in order to take in 
 as much territory as possible, where the water supply is sufficient. 
 The expense, proportionately to the acre, would be a thousand 
 times greater if the canals were built simply for the purpose of irri- 
 gating the riparian lands, and it is true that bv reason of this great 
 expense it would be impracticable to construct canals for the pur- 
 pose only of irrigating riparian lands. 
 
 Redirect examination on behalf of intervenor. 
 
 By Mr. Campbell : 
 
 The Pecos river is an inter-State stream. It rises in New Mexico 
 and flows into the Rio Grande in Texas. If Texas should insist 
 upon the application of the doctrine of riparian rights on the Pecos 
 river in Texas, and that should be sustained, it would almost abso- 
 lutely depopulate Eddy and Chaves counties and destroy all except 
 the cattle and sheep interests on the range, and there would be no 
 future development and prosperity. 
 
 4260 I am well acquainted with what is known as the arid re- 
 gion. The doctrine of riparian rights is not applicable to 
 any part of the arid region where land can be irrigated. 
 
 Recross-examination on behalf of complainant. 
 
 By Mr. Ashbaugh : 
 
 If the civilization of Texas had been built up long prior to any 
 irrigation on the Pecos river in New Mexico, as to whether it would 
 be right to take the waters in New Mexico, although it entirely de- 
 stroys the civilization that, was prior in time below on the stream 
 and located in Texas, I will say that under the laws in force in this 
 country relative to the use of water for irrigation it would be im- 
 possible for us to divert the water already applied on land and so 
 destroy their civilization. I would not think it right, however, to 
 destroy a prior civilization by a diversion made subsequently. 
 
 4262 Vernon L. Sullivan, Roswell, New Mexico. 
 
 Direct examination on behalf of intervenor. 
 
 By Mr. Campbell : 
 
 I reside at Carlsbad and have resided there nearly two }^ears. I 
 am a civil engineer and have been engineer for the Pecos Irrigation 
 & Improvement Company for about twenty-one months. This com- 
 
THE STATIC OP COLORADO ET AL. 
 
 1133 
 
 pany is engaged in irrigation. I had no experience in irri- 
 
 4263 galion prior to coming here. Since coming here 1 have 
 gone over the works and investigated the improvements of 
 
 that company. They have a reservoir at McMillan called the 
 McMillan reservoir, about eighteen miles above Carlsbad, and 
 another about six miles above Carlsbad called the Avalon reser- 
 voir. Lake Avalon was partly washed out last fall. The improve- 
 ments I have mentioned cost somewhere near a million 
 
 4264 dollars. There are nearly fifteen thousand acres of land irri- 
 gated from the system owned by the Pecos Irrigation Com- 
 pany. 
 
 4265 Francis G. Tracy, Roswell, New Mexico. 
 
 Direct examination on behalf of intervenor. 
 
 By Mr. Campbell : 
 
 I have resided in Eddy county, New Mexico, at Carlsbad, for- 
 merly Eddy, for fifteen years. When I first came there, after a 
 month’s work planting trees and something of that kind I went to 
 work for the Pecos Irrigation & Investment Company, which was 
 the predecessor of the Pecos Irrigation & Improvement Company. I 
 am now president and general manager of the Pecos Irrigation Com- 
 pany, which is the successor of the Pecos Irrigation & Improvement 
 Company or Investment Compan} 7 . I have held that position since 
 February, 1900. I have been engaged in irrigation in connec- 
 
 4266 tion with the company since January, 1890. I have also had 
 personal experience in Eddy county in respect to irrigation. 
 
 I have farmed individually, one way and another, nearly every 
 year, several hundred acres, and am engaged in fruit growing down 
 there. When I came in, the irrigation works were in course of con- 
 struction. The dam at Lake Avalon was not yet completed, and 
 there was no railroad at all. We now have a railroad from Pecos 
 City through Carlsbad to Roswell and Amarillo. It starts in Pecos, 
 Texas, and ends at Amarillo. Its length is some four hundred 
 miles. The area in cultivation when 1 first came to Eddy county 
 was very slight indeed. There was no irrigation from the 
 
 4267 Pecos river to speak of. 
 
 The average rainfall in Eddy county is variously stated at 
 from twelve to fourteen inches. I think twelve is nearly right. 
 That is not sufficient to raise a crop without irrigation, not in the 
 way the rains come. They come in the form of torrential rains 
 generally and at an uncertain period. There are never two years 
 alike in reference to that. At the present time I would estimate 
 that throughout Eddy county there must be from twenty-five to 
 thirty thousand acres under irrigation. Of this about fifteen thou- 
 sand is in actual crops, of which fourteen thousand is under the 
 main system of the Pecos Irrigation & Improvement Corn- 
 
 4268 pany of which I am president. No sir, that amount of land 
 could not be watered from the waters of the Pecos river withou 
 
1134 
 
 THE STATE OF KANSAS VS. 
 
 a reservoir system. The estimated cost of tl le improvements now 
 owned by the Pecos Irrigation Company is in the neighborhrod of a 
 million dollars. 
 
 By using the unused waters of the Pecos river and reservoiring 
 the flood waters, my opinion is that possibly sixty or seventy- 
 
 4269 five thousand acres of laud could be irrigated. Of the land 
 which can yet be irrigated, between twenty-five and thirty 
 
 thousand acres is Government land. It would not bring the Gov- 
 ernment price before it is reclaimed. The land that has been re- 
 claimed by irrigation in Eddy county is worth about $50 an 
 
 4270 acre. The Government land which can be reclaimed by the 
 waters of the Pecos river and by storing the flood waters is 
 
 worth at the present time about $1.25 an acre. When reclaimed it 
 would be worth as much as the land which has already been re- 
 claimed. This land if reclaimed would support ten times the popu- 
 lation of Eddy county as it is to-day. The population to-day is in 
 the neighborhood of five thousand, I think. 
 
 I think 1 have some idea of what constitutes the doctrine of ripa- 
 rian rights. No sir, the land which has been reclaimed in Eddy 
 county, New Mexico, could not have been so reclaimed if that 
 
 4271 doctrine had been enforced on the Pecos river. We take 
 every drop of water out of the Pecos river, except at flood 
 
 times, six miles above the town of Carlsbad. We carry the water 
 some thirty miles from our reservoir, and our works are constructed 
 forty miles, and back from the river nearly six miles. 
 
 No sir, if the area irrigated from the waters of the Pecos river 
 were to be limited to the lands riparian to the river, that is to say, 
 the first or second 40 acres from the river, it would be practically 
 impossible to make any development on the Pecos aside from the 
 pumping development if they limited us in that way, owing to the 
 high banks of the river and the difficulty and expense in getting the 
 water up. I should think fully eighty per cent, of the property in 
 Eddy county has been created and exists by virtue of the taking of 
 the waters out of the river by this reservoir system and applying them 
 to the lands in the county for irrigation purposes. 
 
 The railroad from Pecos to Amarillo was built entirely be- 
 
 4272 cause of these irrigation possibilities and was begun by the 
 same people who are interested in the irrigation and was 
 
 practically completed by those people. No sir, there was nothing 
 else in either of these countries to induce the railroad to come in 
 aside from the development that could be made by irrigation. 
 
 Cross-examination on behalf of complainant. 
 
 By Mr. Ashbaugh : 
 
 As to the extent of our irrigation from reservoirs, it is very diffi- 
 cult to answer definitely. We could not do anything at all without 
 the reservoirs. The fact is that our irrigation in Eddy county is 
 almost entirely dependent upon the system of reservoirs. We could 
 
THE STATE OF COLORADO ET AL. 
 
 1135 
 
 not maintain the land we have in cultivation down here to-day, even 
 in small area, if the water taken was taken directly from the Pecos 
 river. The reservoirs are built directly in the Pecos river by 
 
 4273 dams across the river and every drop of water taken out of 
 the Pecos river at certain times of the year is impounded. 
 
 We store the winter flow of water for use in the following spring, 
 the winter and spring generally being the dry time. Unless the 
 water down the Pecos or the flow is large after an unusually rainy 
 fall, we stop all the flow during the winter months for storage in the 
 spring, and that continues until the rains come some ti me during 
 the summer. Immediately below the dams there is practically no 
 water at all. By this system of reservoirs, the impounding and 
 holding back of the flood waters, we are able to increase the amount 
 very largely over what we could get directly from the river, and if 
 the flow of the river below has been increased it is because of the 
 holding back and impounding and storing of the flood and excess 
 waters during the times when there are flood waters. If our 
 
 4274 irrigation to the full extent of the capacity of the valley were 
 directly from the river, having no reservoirs, making no 
 
 storage whatever and taking all of the water from the river for our 
 irrigation, it would decrease the flow very much indeed. 
 
 If someone should claim and exercise the right to take all of the 
 water of the Pecos river above us and we were limited for our sup- 
 ply of water to the flowing waters of the Pecos river, we would not 
 have any left. We would have to starve. (Objection by defendants.) 
 If that were done we would have to stop business altogether, and it 
 would ruin us. (Objection by defendants.) 
 
 Cross-examination on behalf of defendants. 
 
 By Mr. Hayt : 
 
 4275 Except in times of flood we take all of the water out of the 
 Pecos river a few miles above Carlsbad, and at such times as 
 
 there are very large natural springs in the Pecos just above the town 
 of Carlsbad between our dam and it there is always a constantly 
 flowing stream at that point — a constant minimum flow. When 
 our company and others store water along the Pecos river, of course 
 when the water is used above there there is nothing like the flow 
 above Carlsbad that there is when the water runs down there un- 
 obstructed. In a measure, I believe the storage of water in reser- 
 voirs and the use of it in irrigation has a tendency to equalize 
 
 4276 the flow of the streams below. A portion of the water which 
 is lost from our reservoirs by reason of seepage and leakage 
 
 as well as from the ditches returns immediately to the Pecos river 
 or can be visibly seen returning but as to what quantity so returns 
 it would be hard for me to say. The use of the water in the manner 
 in which we use it does not deprive the river entirely of that water; 
 some of it gets back. The chief difficulty we have to encounter in 
 conserving this water is the question of leakage, both from the reser- 
 
1136 
 
 the st\te op Kansas vs. 
 
 voirs and from the canals. I have found by examination of the 
 records of other companies that the percentage of loss from our canal 
 is not greater than from the new companies of the West generally, 
 except in California where there are peculiar local conditions affect- 
 ing it so that the losses are in some way reduced to a mini- 
 
 4277 mum; but in our reservoir we have gypsum leaks, which of 
 course are local and make the loss from the McMillan reser- 
 voir unusually large, and there are one or two gypsum spots at the 
 lower end of the canal which furnish an unusual condition of 
 leakage. In our case it has not been decreased because we are 
 using clear water without any sediment, owing to our reser- 
 voirs, and it has been conclusively proven that we shall have 
 to take some special means to prevent loss. If we were able to 
 and should turn the water of the river in flood times into our 
 ditches, I expect that that would serve very largely to stop up leaks 
 and lower the percentage of loss. That has been the experience 
 everywhere else. It is our endeavor during the winter and spring 
 months to practically store all the water running in the Pecos river 
 
 at our dams and use that water later in the season for the 
 
 4278 purpose of irrigating lands below there. If we did not store 
 that water it would run on down the Pecos river. It would 
 
 be of no use to anyone for irrigation purposes or anything of that 
 sort but would practically be wasted. We store it in seasons when 
 it cannot be used for direct irrigation and we use it in seasons when 
 it is necessary to use water for the growing of crops. During the 
 actual irrigation season very little of the water that we put upon the 
 land returns to the river. It takes several months for the return 
 flow to reach the river, but eventually a portion of it gets back into 
 the natural drainage channel and goes on down the river, and in 
 the early years it was true that that portion increased from year to 
 year as the ground became saturated from repeated irrigations, but 
 in later years I have noticed no increase. I think the ground 
 
 4279 has reached the point of saturation. I think there is no in- 
 crease now. The farthest land irrigated is about six miles 
 
 from the river. The greatest distance from the piace at which the 
 water is used and seems to return in the way of springs — I have 
 personally examined that more than half way down through our 
 system — is to a distance of about fifteen miles below Carlsbad or 
 twenty-one miles below the reservoir. Below that I have no 
 
 4280 personal knowledge. I have noticed that for that distance 
 new springs are coming into existence and the flow of water 
 
 from other springs has been increased as the result of irrigation in 
 that particular locality. I think there are very few of these springs 
 that go dry during an ordinary time when we are keeping the water 
 out of the canals. Our irrigating season, you know, is long, and 
 we run water much more during the winter months than they do 
 farther north, but ordinarily our canal is empty from three to three 
 and a half months, and during that time there are very few of those 
 springs that go dry. There is a small percentage of them go dry. 
 
tfUE STATE OP COLORADO KT At. 
 
 113? 
 
 And these springs, after they once begin, so long as the irrigation is 
 kept as a regular thing, have a continuous flow throughout the year. 
 What I mean to say is that if the irrigation should permanently cease 
 of course the springs would cease, but so long as irrigation is going 
 on from year to year those springs are permanent springs. The 
 irrigation has not ceased from the time we first inaugurated 
 
 4281 it, and those springs which came into existence have been 
 flowing continuously from the time they first commenced to 
 
 flow up to the present time. 
 
 Recross-examination on behalf of complainant. 
 
 By Mr. Ashbauoh : 
 
 Yes, the return waters have not increased lately because the soil 
 has become saturated to the full extent of its carrying capacity, and 
 of course no increase could be had over that. If there had been any 
 prior civilization on this river below Carlsbad and below our system 
 then our system would affect the river down there and would affect 
 their property interests. 
 
 Redirect examination on behalf of intervenor. 
 
 By Mr. Campbell: 
 
 4282 They are irrigating lands in Texas below the territorial 
 line from the waters of the Pecos. They tell me that at Bars- 
 
 tow, Texas, they have under irrigation about ten thousand acres. 
 They have a ditch there which they have been putting water out of 
 in the last year or two, but the actual area in cultivation, I think, 
 amounts to only possibly a hundred or two hundred acres. They 
 contemplate, though, using it largely. Our dams in the dry season 
 take every drop of the Pecos river at those points and turn it into 
 our ditches. The lands in Texas must be irrigated partly from seep- 
 age from our system and partly from the natural springs on 
 
 4283 the river. A great many of those springs existed there prior 
 to our reservoir and irrigation system. They have increased 
 
 since the reservoirs were put up and irrigation begun, but the per- 
 centage I couldn’t tell you. Between the territorial line and Pecos 
 they have taken out a large ditch to irrigate the bottoms below the 
 territorial line. I have seen their prospectus, and from it they pro- 
 pose to irrigate several hundred thousand acres, and they depend 
 upon the seepage waters of the Pecos river largely, and springs 
 along the river, below our dam. 
 
 The assessed valuation of Eddy county for 1904 is $>1,800,000. 
 This is about one-third of the real valuation. Our irrigation system 
 is exempt from taxation. About eighty per cent, of this valuation 
 is dependent upon irrigation. No, the railroad would not have 
 come in had it not been for the irrigation possibilities. 
 
 72—7 
 
im 
 
 S^ATE o# KANSAS VS. 
 
 4285 B. M. Hall, Roswell, New Mexico. 
 
 Direct examination on behalf of intervenor. 
 
 By Mr. Campbell : 
 
 I am supervising engineer for the Territory of New Mexico and 
 the Rio Grande basin in adjacent States, in the reclamation service 
 of the United States and the Geological Survey. I am a profes- 
 sional engineer. I graduated as a civil engineer at the Universit}' 
 of Georgia in 1876. The reclamation service of the Government is 
 under the bureau known as the Geological Survey of the In- 
 
 4286 terior Department. I have been connected with that survey 
 since 1895. From 1895 up to my connection with the reclama- 
 tion service I had charge of a large area in the southeast, with Atlanta, 
 Georgia, as my center, in measuring all of the streams and finding 
 out what the flow of the streams was constantly from time to time 
 and from year to year, and had a large number of employees under 
 me who were engaged in that way. I became connected with the 
 reclamation service in the first part of 1904. I came to New 
 Mexico in March, 1904, and was for several months on the board 
 of consulting engineers, visiting different points and examining 
 different projects, and in connection with the reclamation 
 service in different States and Territories, practically over a 
 large section of it, embracing California, Arizona and Montana, 
 and in June I was stationed at El Paso to take up the Rio 
 Grande question and consider that question and make thorough ex- 
 aminations and report and get up plans for the propor conserva- 
 tion of the waters of that river and the distribution thereof. 
 
 4287 In respect to my investigations made in New Mexico to as- 
 certain sites for reservoirs under the reclamation act as super- 
 vising engineer, I have taken up one of those projects after another 
 as I could get to them. The Rio Grande first and the Hondo at 
 Roswell next, I made an examination of the Las Vegas project, and 
 am now at Carlsbad examining conditions in order to arrive at a 
 conclusion as to what the Government ought to do with reference 
 to the irrigation works in that vicinity which Mr. Tracy just testi- 
 fied about. 
 
 Yes, the Government is now erecting a reservoir close to Roswell 
 known as the Hondo reservoir. It has been decided that about ten 
 thousand acres of land which is now unproductive and unprofitable 
 can be made profitable and productive by irrigation from the 
 
 4288 waters of that reservoir when it is erected. When this land 
 is reclaimed I should say it will be worth $100 an acre. 
 
 There is a good reservoir site near Las Vegas in Dry basin, and 
 we estimate that ten or twelve thousand acres will be available for 
 irrigation there. When this land is reclaimed I think it will be 
 worth from $75 to $100 an acre. 
 
Tit re STATE OF COLORADO Et At. 
 
 1159 
 
 4289 In respect to the Rio Grande project, our surveys have de- 
 veloped only one reservoir site that we consider adequate for 
 
 the proper storage of the waters of that river. That is nine miles 
 from Engel, above Rincon, about fifty miles north. It is called the 
 Elephant Butte site. We estimate that that reservoir when erected 
 will irrigate 180,000 acres of land in Texas and old Mexico. That 
 is, that there will be a portion of that land that will be available for 
 the settlement of the international question. It is proposed in the 
 erection of that reservoir to irrigate 25,000 acres in old Mexico for 
 the settlement of the claims that it has against the United 
 
 4290 States and to irrigate about 45,000 acres in Texas and about 
 110,000 in New Mexico. A part of that land is irrigated by 
 
 direct diversion of the river now all along that basin whenever there 
 happens to be any water in the river, but that is very precarious. 
 They sometimes have a dry river bed for five or six months in suc- 
 cession right when the} 7 need the water for irrigation. The land 
 which is now arid and unproductive in New Mexico and which can 
 be reclaimed by the Elephant Butte reservoir would when reclaimed 
 be of equal if not greater value than reclaimed lands in and around 
 Roswell and Las Vegas which I have described, because there are 
 some advantages, probably, in the climate and the longer seasons 
 and the market at El Paso and in old Mexico. 
 
 The reclamation act could not be administered or carried out in 
 any way if the doctrine of riparian rights should prevail in New 
 Mexico. I have had that doctrine to contend with for twenty-five 
 years. 
 
 4291 If the irrigated area were confined to the first and second 
 40’s adjoining the streams on the Rio Grande or Pecos the 
 
 provisions of the reclamation act could not be carried out. The 
 reasons for that are that in the Rio Grande the only water we can 
 count on is flood water, and it has got to be stored. The storage 
 reservoirs have to be very large and very expensive, and if the land 
 that could be covered by them were limited to this small area it 
 would make them cost too much per acre in order to irrigate that 
 land, more than the land would bring in the market or could bring, 
 and the same conditions would prevail in a less degree on the Pecos. 
 There is more low water flow in the Pecos than in the Rio Grande, 
 but the same conditions, practically, would prevail. In the case of 
 the Pecos, there is great difficulty in using the water by 
 
 4292 direct irrigation because the lands and banks are so high 
 above the level of the river that a diversion dam is very ex- 
 pensive. 
 
 Cross-examination on behalf of complainant. 
 
 By Mr. Ashbaugh : 
 
 As consulting engineer I have examined the Yuma irrigation sys- 
 tem, the Laguna diversion dam, and a system of proposed canals 
 and all the lands that could be irrigated there. The Laguna is on 
 
1140 
 
 TtlE STATE oE ^ A MS AS VS. 
 
 the Colorado river about Yuma. There it is proposed to irrigate 
 about 100,000 acres, and we passed up the recommendation last 
 spring that $3,000,000 be expended there, and that is going to be 
 carried out. The Tonto basin I also examined very thoroughly. 
 That is located on Salt river in Arizona, above Phoenix. I 
 
 4293 also made examinations in Montana on the Yellowstone. 
 That, I think, covers the main places that I have examined. 
 
 The international question that I spoke of growing out of the Rio 
 Grande irrigation is on the Mexican side of the Rio Grande oppo- 
 site the city of El Paso. (Objection by defendants.) There is an old 
 canal known as the Acequia Madre that is said to have been in ex- 
 istence for about three hundred years, and thatatone time irrigated 
 a large tract of country in old Mexico estimated at twenty to twenty- 
 five thousand acres. In 1896 there was a claim from old Mex- 
 ico against this Government for the loss of that water, claiming it 
 was due to the use above by the citizens of the United States. A 
 protocol was entered into and the question was referred to the Inter- 
 national Boundary Commission, which was then in existence and 
 has been in existence for a number of years. General Anson Mills 
 was the commissioner for the United States, and there was a Mexi- 
 can commissioner. They were directed to thoroughly exam- 
 
 4294 ine the question and report upon it. They employed engi- 
 neers and did report upon it and recommended that an in- 
 ternational dam be built there at El Paso and that Mexico be given 
 a one-half interest in it while the United States should put up all 
 the money for the construction, and that Mexico should have one- 
 half of the waters that should be taken from that storage dam. I 
 have estimated what that dam would have done. It would at the 
 most irrigate about 55,000 acres of land, and in doing so would 
 have submerged something like twenty-five to twenty-seven thou- 
 sand acres of land in the United States, and would probably have 
 caused fifteen thousand more to be marshy, so as to destroy about 
 forty thousand acres of land in the United States. A report of that 
 was made by the International Boundary Commission and it was 
 recommended that that dam be built. That report was in a printed 
 
 volume and was made to the Department of State. (Objec- 
 
 4295 tion by defendants.) That report was based on the prior 
 rights of Mexico to the waters of the Rio Grande. That was 
 
 the view taken by the commission. (Objection by defendants and 
 by intervenor.) 
 
 4296 As to the Rio Grande river being dry during the last 
 spring I think it was in March that I first saw it or first went 
 
 to it and examined it, and from that time until August the river 
 was practically dry as high up as Rincon and at least to below El 
 Paso. (Objection by defendants.) As to the cause of the river dry- 
 ing up, not having known the river before I would simply have to 
 give an opinion of that cause as gathered from the statistics that I 
 have seen. (Objection by defendants.) From the investigations of 
 
THE STATE OF COLORADO ICT AL. 
 
 1141 
 
 others and in the official reports of Mr. W. W. Follett, the 
 
 4297 engineer for that International Boundary Commission it was 
 stated that in the Rio Grande basin in Colorado from the 
 
 year 1880 to the year 1896 there had been an increase of irrigation 
 of 197,000 acres in the San Luis valley mainly in the State of Colo- 
 rado on the headwaters of the Rio Grande and that this irrigation 
 was not from impounded water but from direct diversion of what 
 would be called the regular waters of the river — what ought to go to 
 make the constant flow during the irrigation season and not the 
 flood season — and that this was placed as the cause in those inves- 
 tigations of the shortage of the water down in New Mexico as well 
 as in Texas and old Mexico. (Objection and motion by de- 
 
 4298 fendants.) I will state that I do not personal^’ know whether 
 the river has changed or not at all during the last number of 
 
 years. From the nature of the easel could not know personally ex- 
 cept from statistics of others that I have had the use of in my in- 
 vestigations and that have been considered proper statistics to 
 
 4299 use as an engineer in making plans. (Objection by defend- 
 ants.) Based upon those statistics, it is my opinion that the 
 
 cause is excessive diversion upon the headwaters of the river from 
 recent canals cut directly from the river and without storage reser- 
 voirs. (Objection by defendants.) These canals are located in 
 Colorado mainly. (Motion by defendants.) There is a great differ- 
 ence between taking water by direct diversion and taking water for 
 irrigation purposes from reservoirs as to its effect upon the flow of 
 the river below the place of irrigation. In taking water by direct 
 diversion without impounding any water you are taking from that 
 stream what is known as the constant flow — the flow that is avail- 
 able during the irrigation season (objection by defendants) — and the 
 flow that comes generally from the melting ice and snow 
 
 4300 in the mountains, which is not a heavy flood but a large 
 flow of the river that is available for irrigation. In taking 
 
 that out and applying it directly to the crops you lose a great 
 deal of it in evaporation and the return water from it. While there 
 is some return water it is not anything like the amount that is taken 
 out. A large percentage of it is evaporated and used in plant life. 
 That portion is a permanent loss to the river at the time of the irri- 
 gation season. Now, where ’you store the water you catch floods 
 that would otherwise be useless and would pass on down to the gulf 
 of Mexico, and you hold those back and let them out as they are 
 needed for irrigation. In that way you use water for irrigation that 
 would otherwise be lost, and the return water from that to the river 
 is a clear gain, whatever percentage of that comes back in seepage. 
 In that way it adds a supply to the river which would be 
 
 4301 greatly in excess of what it would have for direct irrigation. 
 
 In regard to the projects for the reclamation of lands along 
 inter-state streams where there is civilization and property interests 
 below, it has been our custom to view the subject purely from an 
 engineering standpoint and leave those questions to the proper au- 
 
1142 
 
 THE STATE OF KANSAS VS. 
 
 thorities of the Government to decide — those inter-state ques- 
 
 4302 tions. (Objection by defendants.) 
 
 The method of taking the water for irrigation from storage 
 dams would injure the property below the least because it would 
 protect the lower stretch of the river from floods as well as to add 
 something to what would be the flow of the river without those im- 
 pounding reservoirs. (Objection by defendants.) The impounding 
 of the waters above protects the people and the interests and the 
 property below from floods by holding back these floods in large 
 storage reservoirs and not allowing them to run down the river too 
 fast, and then letting them out as they are needed for irrigation. 
 (Objection by defendants.) This system could be carried out on 
 that plan of storage dams with less injury to the property interests 
 below than the system of purely a direct diversion, and at the same 
 time give an element of protection and improvement to the river 
 below. The element of safety against floods would come at the 
 flood season, at the time of disastrous floods on the river. 
 
 4303 The improvement in doing away with the severity of those 
 floods would be at that time, and the diminution of the stream 
 
 by irrigation above would be less in proportion for that class of 
 water using than it would be for direct diversion. The storing of 
 the surplus or flood waters would add an increment to that flow that 
 it would not have under the system of direct diversion, because it 
 would be a certain percentage of irrigation water that would be 
 otherwise absolutely lost and it would go back into the river at the 
 proper time for irrigation and during the growing season. I will 
 simply state that direct diversion comes at a time when the 
 
 4304 water is needed below just as it is above, and takes it directly 
 out of the river, while the storage system stops the water that 
 
 would otherwise go to waste. (Objection by defendants.) Taking 
 all of the water of a stream above by direct diversion would have 
 the effect upon the flow of the river below of cutting off the entire 
 flow of the river below except the portion that would come in from 
 the tributaries below, if there were no such thing as return waters 
 from the irrigation. Whatever percentage of that return 
 
 4305 water gets back into the river is added again to the river. 
 (Objection by defendants.) 
 
 I am not acquainted with the Arkansas river through the eastern 
 part of Colorado and the western part of Kansas. 
 
 Under the doctrine of riparian rights there could be no irrigation 
 in New Mexico on a large scale. It is not applicable to the condi- 
 tions. 
 
 If the Colorado doctrine, that because of her constitution, her 
 laws and her sovereignty, she has the right to control and take all 
 of the waters that fall within her borders, should prevail, it is my 
 opinion that it would not have the effect of decreasing the area that 
 could be covered by the reclamation service, but it would 
 
 4306 have the effect of confining it to certain States. The recla- 
 mation service in its plans for the reclamation of the lands 
 
THE STATE OF COLORADO ET AL. 
 
 1143 
 
 along the Rio Grande in New Mexico admit at the outset that Col- 
 orado has already taken all of the waters at the State line between 
 Colorado and New Mexico from the Rio Grande and that now all 
 the water we can get is by storing it below. (Objection by defend- 
 ants.) If Colorado should take all of the waters of the Laramie 
 river and all other rivers that flow from Colorado into Wyoming 
 that have not already been appropriated by Colorado and there 
 were enough land in Colorado on the headwaters of those rivers to 
 take all the water, it would simply have the effect of making all 
 the development in Colorado and denying it to the State 
 
 4307 below. If all the water to be utilized in the proposed devel- 
 opments in Wyoming had to come from Colorado, and all the 
 
 waters were cut off from that river before it gets to Wyoming it 
 would effectively stop the work below, so far as I can see, assuming 
 that the water has to come from Colorado and that there are not 
 enough tributaries coming in from Wyoming to make it up. (Ob- 
 jection by defendants.) The same condition would arise as 
 to other States lying below Colorado, so far as I see. 
 
 4308 This Colorado doctrine would interfere with the carry- 
 ing out of the reclamation of the lands in any of 
 
 the States lying below Colorado along the streams that rise 
 in Colorado or in any other State that lies above the one 
 where the reclamation projects are in contemplation. It would 
 not necessarily decrease the acreage that could be irrigated 
 in the arid west but would limit it largely to one locality, 
 and that would be the upper locality, if there was enough 
 land to use all of the water. (Objection by defendants.) I would 
 state, however, that in our reclamation work we do not recog- 
 nize an excessive diversion of water, a diversion that is greater 
 than is necessary to properly irrigate the body of land 
 
 4309 to which it is carried. In such cases we have gone at 
 the subject purely from an engineering standpoint and have 
 
 taken all of the conditions into consideration and have not taken 
 unto ourselves the right or privilege of deciding those questions. 
 We have felt that the whole matter ought to be submitted to 
 proper authorities and settlement made before we could act on it. 
 The Rio Grande is a case in point that I have had direct charge of 
 myself, and that is the principle upon which I have proceeded. I 
 have not gone into the question of States’ rights, or even Govern- 
 ment rights, but I have shown what could be done in an engineer- 
 ing way and submitted it to the Secretary of the Interior, who 
 is cooperating with the other departments of the Government for a 
 proper solution of the question. We have proceeded from an 
 engineering standpoint, and from that standpoint we would have 
 nothing to do with the rights of those people down below. 
 
 4310 (Objection by defendants.) From an engineering standpoint 
 we have only to consider how much land will be reclaimed 
 
 without regard to where that land is, and where that water would, 
 do the most good. That is the question that comes before us — 
 
1144 
 
 THE STATE OF KANSAS VS. 
 
 where that amount of water will accomplish the most good, with- 
 out regard to State lines and without regard to the different 
 interests in any way. (Objection by defendants.) I have 
 
 4311 already stated that it would have the physical effect, if 
 the water is all diverted in the State above, of making the 
 
 stream entirely dry during the ordinary seasons in the State 
 below. Now, the question we meet as engineers would be which 
 weighed the heaviest, which was of the most importance, — for that 
 stream to keep its continuous flow of water or for the water 
 to be used for irrigation to the best advantage of the people on the 
 best land, — and cases might be so different that we might decide it 
 ought to be done in one State or in another or we might pay 
 no attention whatever to State lines from an engineering 
 
 4312 standpoint. We would pay no attention to State lines. For 
 instance, we are planning work in New Mexico which would 
 
 interfere, we might say, with the irrigation in Texas and old 
 Mexico. We have not looked at that from the standpoint of 
 the rights involved at all, but we have simply recognized that these 
 questions do exist and we have had to plan in such a way that in 
 the settlement of them they may have the water with which 
 to settle them, and we do not conflict with investigations that might 
 be made by the proper departments of the Government for that 
 purpose. 
 
 Cross-examination on behalf of defendants. 
 
 By Mr. Dawson : 
 
 4313 I first located in and became a resident of the arid region 
 during March, 1904. I have kept very close u,p with every- 
 thing that has been done and written on the subject so far as it has 
 been practicable ever since the Geological Survey of the United 
 States has been considering this question, even a long time before 
 the reclamation act was passed, and my practice as civil engineer 
 has been largely in connection with mining canals and dams and 
 tilings of that kind, but my personal and practical knowledge of 
 irrigation works and the peculiarities of the streams in the arid 
 region has been acquired since March, 1904, but as a continuation 
 of studies I had previously made on the subject by being not only 
 in contact with the publications but with the men who were doing 
 the work. 
 
 I first saw the Rio Grande in March, 1904. I simply crossed 
 
 4314 it. I crossed it just about El Paso, and it was practically dry. 
 In April I was at Las Cruces and at Rincon and up the fiver 
 
 that way. My understanding was that that condition had begun in 
 February — the low water. 1 have never been on the Rio Grande in 
 Colorado in the San Luis valley, and I onty know in regard 
 
 4315 to the irrigated lands there from the statistics that I have re- 
 ferred to. I would suppose from that information that there 
 
THE STATE OF COLORADO KT AL. 
 
 1145 
 
 is very little irrigating done there as early as March or April. I 
 would not attribute the low water in the Rio Grande in March to 
 the irrigation in the San Luis valley — my understanding was that 
 that was an exceptional case — because at that time of the year there 
 was generally considerable water in the river, but last year it was 
 peculiarly dry at that time owing, they said, to the fact that there 
 was no snow in the mountains. 
 
 4316 The impression I have gotten from the statistics and from 
 reading is to the effect that the land has been very largely 
 
 denuded of its timber on the Rio Grande and its tributaries within 
 the last ten or fifteen years. The effect of cutting and burning off 
 the timber at the headwaters of the stream and its tributaries is to 
 increase the floods and to decrease the low water flow — the constant 
 flow of the stream. I know that from long experience not only 
 here — from in the East. 
 
 The system of irrigation from waters stored in reservoirs is less dam- 
 aging to the lower reaches of a stream than where irrigation is prac- 
 ticed. T will qualify that to this extent — that is, considering that the 
 land below has no storage reservoirs of its own. The evapora- 
 
 4317 tion would be the same for any water that is spread over the 
 land at a certain time. I simply wish to convey this idea — that 
 
 any system of irrigation that is not excessive, that is properly ade- 
 quate to the land it goes on in this arid region, exposes a very large 
 surface of the ground to evaporation, and that it evaporates very 
 rapidly and a great deal of it is taken up in plant life and only a 
 very 7, small percentage of it gets back to the river ; but in case of 
 the impounding of water you are using water which would have 
 been lost, and if you are getting back any percentage of that you 
 are getting back something you would not otherwise have had. 
 
 O- Speaking about a certain percentage of the return waters, do 
 you know whether those who have made investigations of that 
 subject say that such return waters average from thirty to as high 
 as sixty-five per cent.? 
 
 A. Yes, I recognize the engineering fact, though, that all depends 
 upon the conditions, every bit of it. You might imagine a case 
 where there would be no return waters, if just the proper amount 
 were used for irrigation. It is generally the excessive irrigation 
 that makes these large returns. 
 
 4318 As a practical question, you might conceive of an ideal 
 condition in which all of the water might be used for plant 
 
 life, but practically you cannot attain to that, simply because we 
 have no means of applying the water in that way, and whatever 
 that excess is that does not evaporate and does not go into plant life 
 goes back to the river. Of course when you store water in a reser- 
 voir and afterwards spread it over the land you have evaporation 
 both from the reservoir and from the water after it is spread over 
 the land. But the advantage you get from the storage is the fact 
 that you are impounding water which otherwise would run to waste, 
 at a time of the year when it is not needed for irrigation, and the 
 
1146 
 
 THE STATE OF KANSAS VS. 
 
 return water itself is a part of the water that would have 
 
 4319 gotten away. It is true that the irrigation of land itself in 
 a certain sense is a system of water storage, provided you 
 
 take flood waters only. It of course would hold it back. If you 
 are taking it out to irrigate with it is holding it back just at the 
 time it is needed below. It has retarded a part of the ordinary flow 
 of the river, but it has not retarder] the flood waters of the 
 river, unless your diversion system is large enough to make a 
 flood system for carrying out the floods all over the lands; then you 
 do get a reservoir of that kind. There are times on the Rio Grande 
 when there is more water coming down the river for a considerable 
 period than is used by anybody either in Colorado or New 
 
 4320 Mexico for irrigation, and any of the water diverted at such a 
 time, at the time of a flood in the river, would have that 
 
 effect, — to store that water and replenish the flow during the low 
 season, and that whether by direct diversion or by a storage 
 
 4321 system. It might be and probably is true that irrigation 
 would be of advantage to the lower region of the Rio Grande 
 
 4322 in New Mexico when the water w r as not needed in Colorado, 
 and vice verm . If the San Luis valley is some one hundred 
 
 miles in length and sixty miles wide and surrounded by high moun- 
 tain ranges and has but one outlet, that through which the Rio 
 Grande proceeds into New Mexico, and the valley is level and 
 smooth, pitching in all directions towards this outlet, and if it be 
 true that the water level of the valley is only from five to twenty 
 feet under the surface of the soil, and beneath that water there is a 
 rock or clay bed, it would furnish what we might call ideal condi- 
 tions for the best results from return waters, if this clay bed has a 
 dip toward the river and does not lead off toward some sub- 
 
 4323 terranean system. And assuming that it has, and that the 
 only outlet is by the Rio Grande, and it has a gravelly soil 
 
 above it, I should think that would be an ideal condition for 
 storing any waters that would percolate into the ground and give it 
 a chance to get out. 
 
 The statistics I refer to give this extra irrigation in the San Luis 
 valley of 197,000 acres in sixteen years as the cause of that 
 
 4324 decrease. The statistics referred to give an increase of 3,000 
 acres in the sixteen years, in irrigated lands, mainly in the 
 
 4325 upper part of New Mexico, as I understand it. The sixteen 
 years I refer to were from 1880 to 1896. That is the time 
 
 those statistics were gotten up. If the facts were clearly established 
 that it should appear that the timber had been practically destroyed 
 on the headwaters of this river and its tributaries, and if it be proved 
 that for the last ten years the snow fall has been less, and allowance 
 has been made for these two things, and after that deduction is made 
 there is as much water crossing at the Colorado-New Mexico line as 
 formerly, then some other cause would have to be looked to as pro- 
 ducing the less flow of water in the lower reaches of the river 
 
 4326 in New” Mexico. It is admitted to be true, if other conditions 
 are equal, as to markets and the season and all of that, that 
 
THE STATE OF COLORADO ET AL. 
 
 1147 
 
 water can be used to best advantage near the bead of a stream if 
 the land and climate are equal to that farther down, and that has 
 been taken as a basis for work frequently, because you save percola- 
 tion and evaporation between the two points. 
 
 Cross-examination on behalf of defendants continued. 
 
 By Mr. Hayt : 
 
 4327 The impounding of water and the irrigation of land as 
 practiced in this vicinity (Roswell, New Mexico) along the 
 
 Pecos river, so far as 1 have been able to find out by observation 
 and otherwise, has caused a good flow of water in the river while 
 this irrigation is going on. Now, what the flow was or would have 
 been before I am not able to tell. I do not think there are any statis- 
 tics to show what it was. I do not think the impounding of water 
 from the Pecos river in this vicinity and the use of that water in 
 the counties of Eddy and Chaves has injuriously affected the Rio 
 Grande for the purposes of irrigation below the mouth of the 
 
 4328 Pecos. I think there is a limit to which that work can go, 
 and provided you have plenty of land and a limited supply 
 
 of water there will come a time when you will cut off the water 
 below to a considerable extent. The irrigation that has been prac- 
 ticed has not reached that time so as to make any material differ- 
 ence in the river below. 
 
 Recross-examination on behalf of complainant. 
 
 By Mr. Ashbaugh : 
 
 4329 As to the irrigated lands along the Rio Grande in the Ter- 
 ritory of New Mexico, I have seen a great many tracts of 
 
 land that are levelled off and have ditches on them and show that 
 they have been cultivated. I have noticed up and down the valley 
 a great deal of land that way that is not now cultivated and is ab- 
 solutely arid. 
 
 Redirect examination on behalf of intervenor. 
 
 By Mr. Campbell : 
 
 The conditions in the other States that I have been in since I 
 have been with the reclamation service making investigations are 
 similar to the conditions prevailing in New Mexico. 
 
 4331 J. J. Hagerman, Roswell, New Mexico. 
 
 Direct examination on behalf of intervenor. 
 
 By Mr. Campbell : 
 
 I live at Roswell, and have lived here about three years. Before 
 coming here I lived at Colorado Springs, Colorado. Previous to 
 that I lived in Milwaukee, Wisconsin. I am a graduate of Ann 
 
1148 
 
 THE STATE OF KANSAS VS. 
 
 Arbor, in the class of 1861. 1 first became acquainted with the 
 
 Pecos valley in New Mexico in June, 1889. 1 went by wagon from 
 
 the Texas Pacific road, from Pecos, Texas. I became con- 
 
 4332 nected with the irrigation company in the Pecos valley that 
 had lately been formed there to develop the valley. That 
 
 was in 1889. I never saw any land cultivated in Eddy county 
 previous to that. In respect to improvements made by that irriga- 
 tion company, there is what is known as the Southern canal that 
 started about six miles north of the town of Eddy, now Carlsbad, 
 and ran south about thirty-five miles. It is a large canal and cost 
 a large sum. In connection with that was a reservoir known as 
 Lake Avalon, which cost probably $200,000. The dam alone cost 
 $150,000. 
 
 A few years after that the East Side canal was built, and the 
 McMillan reservoir, a very large reservoir that cost probably 
 $250,000, and there was no end of laterals, small and large, and all 
 the other necessary appliances for a great irrigation plant, and 
 
 4333 by the time they were completed they cost $1,500,000, in 
 Eddy county. The lands in Eddy county were reclaimed 
 
 from their arid condition by the waters that were stored and im- 
 pounded in the reservoirs mentioned and by no other means. My 
 recollection is that at one time there was 20,000 acres under cultiva- 
 tion. More acres had water applied to them with the intention of 
 cultivating. My belief is that that plant, put in perfect condition 
 or reasonably good condition, would irrigate between forty and fifty 
 thousand acres. I became president of the Pecos Irrigation & Im- 
 provement Company that was doing all this work, I think in 1890. 
 The Pecos Irrigation Company, of which Franklin G. Tracy, a wit- 
 ness in this case, is the president, is the successor of the company I 
 have named and of which I was president. That company operated 
 in Chaves county also, where I reside. In that county it built 
 
 4334 what is known as the Northern canal, which begins near Ros- 
 well and runs south about thirty miles. The canals, dams 
 
 and other improvements probably cost $250,000, as near as I can re- 
 member, and the water supply is sufficient to irrigate about 10,000 
 acres. The Feliz Irrigation Company owns that canal now. 
 
 I was also connected with the Roswell Land & Water Company, 
 another irrigation company operating in Chaves county. I was 
 president of it for about nine years. I think that company irrigated 
 about fifteen thousand acres. The waters that were stored by the 
 Pecos Irrigation & Improvement Company were taken from the 
 Pecos river and its tributaries. The water that supplied the North- 
 ern canal was taken from the Hondo and its tributaries. The 
 
 4335 water that supplied the Roswell Land & Water Company was 
 taken from the North Spring and South Spring and the Ber- 
 
 rendo springs in the vicinity of Roswell. These streams run into a 
 stream which is a tributary of the Hondo, and that is a tributary of 
 the Pecos. 
 
 Since my connection with these different companies I have given 
 
tftF S^TAtfe OF COLORADO Ftf At. 
 
 1140 
 
 a gi*eal deal of attention and study to the irrigation possibilities of 
 the Pecos valley. My impression is that it would be safe to say that 
 forty-five to fifty thousand acres can be added to the irrigated area 
 in addition to the land now irrigated in Chaves and Eddy counties 
 by the use of the unused waters of the Pecos river and its tributaries 
 and by the intelligent application of those waters and by impound- 
 ing the flood waters in the basin of the Pecos river. I be- 
 
 4336 lieve if the irrigation possibilities of this valley were devel- 
 oped to a reasonable limit it would bring at least 100,000 
 
 more people to this valley and the country and towns and the farm- 
 ing and fruit raising and all the collateral industries that this would 
 bring about. 
 
 In regard to the worth of the land now reclaimed before it was 
 reclaimed, most of the pasture lands along each side of the Pecos 
 river were long ago worn out and the grass eaten up and gone so 
 that even for pasture it was of very little value. The fact that 
 hardly any of it was bought from the Government at $1.25 an acre 
 is proof that it was not even worth that. The lands which can be 
 reclaimed by the waters of this valley are worth almost nothing in 
 their present condition. 
 
 4337 I have given some thought and study to the doctrine of 
 riparian rights, and it would lmve been impossible to have 
 
 made the development which has been made in Chaves and Eddy 
 counties under the application of that doctrine. If this doctrine 
 were invoked it would stop future development in this valley. As 
 a matter of fact it would be a physical impossibility in most places 
 in this valley to irrigate any land at all if you were confined to the 
 first 40 of a section or the second 40 of a section back from the river. 
 I know of no places along the river where you could do any 
 
 4338 irrigating. If you were confined to a little strip of land it 
 would make irrigation impossible because no one could af- 
 ford to put the dams in the river that would be necessary to raise 
 the water high enough to get it onto lands in such small area. 
 
 There was no railroad in this valley when I came here. In the 
 year 1899 I raised the money in the East to build the road from 
 Pecos City to Carlsbad, and that was finished in 1890; that was 
 ninety miles. In 1893 I raised the money to build the road from 
 Carlsbad to Roswell, seventy -five miles; and in 1897 I raised the 
 money in the East to build the road from Roswell to Amarillo, Texas, 
 a distance of 220 miles, I believe. All told a distance of 375 miles. 
 It is a broad-gauge road. I was president of the companies that 
 built these roads. The inducements which led me to build the road 
 from the Texas Pacific, from Pecos north, was that I believed that 
 the development of this valley by means of irrigation would in time 
 make the railroad pay. That was the only inducement, the develop- 
 ment of the country. The railroad would never have been 
 
 4339 built had it not been for the irrigation possibilities of the 
 Pecos valley. 
 
 I believe that eighty percent, of the property which now exists in 
 
1160 
 
 ffifi s?AtfK otf Kansas vs. 
 
 Chaves county so exists by reason of the taking of the Water fro ill 
 the streams and applying it to the lands for irrigation purposes. 
 
 I have made some study of and know something about the reclama- 
 tion act passed by Congress June 17, 1902. I think that whatever 
 improvements we have in the future through a larger and more eco- 
 nomical use of the water for irrigation depends entirely on that act. 
 If the doctrine of riparian rights were applied to its logical result it 
 seems to me there would be no excuse for the existence of the recla- 
 mation service. If we were obliged to confine the irrigated area say 
 to the lands bordering on the stream and within half a mile 
 
 4340 of it, its effect would be utterly destructive of the administra- 
 tion of the reclamation act, because there could hardly be any 
 
 irrigation of that kind. It is not practicable from a physical stand- 
 point. 
 
 The Pecos river is an inter-state stream, rising in New Mexico 
 and flowing into Texas. 
 
 I have made a study with regard to the effect of irrigation upon 
 forestry. It is impossible to develop forestry in the arid region 
 without irrigation except in a few scattering small places. The 
 effect of forestry upon atmospheric and climatic conditions in the 
 arid region is very beneficial. In explanation I will say that one 
 of the greatest drawbacks to the arid region is the high winds now 
 in certain seasons of the year which cause dust storms and make 
 the country almost unfit to live in; but the more trees there are 
 planted and the more ground there is covered with vegetation, of 
 course the greater the rainfall, and that which does fall 
 
 4341 is conserved and moistens the atmosphere and moistens the 
 air, and serves as a barrier to the winds and makes a country 
 
 which otherwise would be almost uninhabitable just as good as any 
 other country. 
 
 When I first came into the Pecos valley I don’t remember that I 
 saw a tree in it, as far as I saw it. Thousands of trees have grown 
 up since. In the town of Eddy the trees, where they are concen- 
 trated, are a very great protection from the winds and the dust, just 
 as they are around here. I never saw this country until 1894 around 
 Roswell. I have never noticed very much difference here because 
 the trees were here when I first came here in 1894. I have seen the 
 effect of the cutting of the forests on the mountains that 
 
 4342 supply these mountain streams with water. Of course in all 
 mountain countries there are long periods of drouth and 
 
 times when the rains are extremely severe, and where the forests 
 have been cut off and these great rains come and wash the soil away 
 very quickly. The water comes down into the valley quickly be- 
 cause there is nothing to hold it back, and it makes devastating 
 floods, but where the forest is preserved not only the trees but the 
 undergrowth acts as a sponge to absorb and hold the water, and this 
 water which otherwise would have gone down in a flood is, a large 
 share of it, held back and given out in dry times to keep these 
 streams running all the time where otherwise in the dry times they 
 
Itiw st ate op c6l6rad 5 fcT At. 
 
 iJSi 
 
 Would be entirely dry. That has been very noticeable in some 
 places in Colorado where the trees have been cut off the mountains ; 
 and I have been in southern Europe a good deal, in Italy, France, 
 Greece and Turkey, and have seen the effects there of the cutting 
 off of the forests and the immense expense which the governments 
 there are going to to restore them. The whole Black forest region 
 of Germany, which now is one of the most beautiful spots in the 
 world, covered with fine pine timber, there was a time when it was 
 all bare, and it has taken a century or more to restore it. 
 
 Cross-examination on behalf of complainant. 
 
 By Mr. Ashbaugh : 
 
 4343 I do not know what the records show that have been kept 
 in regard to the amount of snow fall in the mountains for the 
 
 last few years, but I have read a good deal about it. I believe they 
 claim that the rainfall in this part of the Territory is about 
 
 4344 twelve to fourteen inches annually. I am not as well in- 
 formed on that as some other people. There is often snow 
 
 falling in the mountains west of here when there is no snow falling 
 herein the valley, and that condition practically prevails as to rain- 
 fall. 
 
 As to the effect upon the valley here if people above us should 
 take all of the water of the river for irrigation, I will say that 
 
 4345 if people farther up the river or rivers took all the water 
 before it got to us of course we could not irrigate at all. If 
 
 the people at the head of a stream that was subject to severe 
 freshets at certain seasons and severe drouths at other seasons, 
 the same as all streams in the arid region, — if the people high up 
 on those streams should store the flood waters and hold them back 
 and use them in the dry season a very large share of that water 
 would get back to the bed of the stream and the people far- 
 
 4346 ther down could do a good deal of irrigating, If by proper 
 storage reservoirs the water were held back in Colorado, stored 
 
 up in the mountains, then it could be used in Colorado and a very 
 large share of it would go down to Kansas so that irrigating could 
 be done there on a considerable scale. You cannot store water in a 
 flat country ; it has to be stored in the foot-hills and places where na- 
 ture has made reservoir sites that could be improved. If that water 
 were allowed to run to waste it would go right away over Colorado 
 and down past Kansas and no one would use it. Let me cite an 
 instance : When we were building the big McMillan reservoir in 
 the lower Pecos valley some people who owned an irrigation enter- 
 prise at Barstow, Texas, informed us that they would not 
 
 4347 allow us to store water in the reservoir because the water be- 
 longed to them, that they had the right to it and that they 
 
 were an older concern than we were. We told them that the biggest 
 floods in the Pecos valley came in the fall when they could not use 
 the water anyway and it was running to waste and they were short 
 
usa 
 
 TMe state oE Kansas vs. 
 
 of water in the dry season, and that if we stored water in very large 
 quantities in these big reservoirs and used it in the dry season when 
 there were no rains a large share of it would go back to the river 
 and there would be a good deal more water in the Pecos river at 
 the time of year when they needed it the most than if the reservoirs 
 were never built. Now, that proved to be a fact. I know that to 
 be a fact. The president of that company, Mr. Barstow, I know him 
 very well, has told me often that our reservoir system there was a 
 God-send to them because they got water in the dry season when 
 they needed it. 
 
 There is another method of taking the water for irrigation, which 
 is bv direct appropriation from the river without any reservoir. If 
 the method employed in the Arkansas valley in the 250 miles west 
 of the Colorado-Kansas State line was the direct withdrawal of water 
 from the river without any reservoirs then it would not tend 
 
 4348 to increase the flow of the river below. If the reservoir sys- 
 tem is adopted the waters will be saved not only for the use 
 
 of the country near which the reservoirs are situated but for the 
 country away below ; but if the water is taken by direct appropria- 
 tion, over and over again, experience has proved that the effect is to 
 reduce the flow of the river below the last ditch. It is not neces- 
 sary to have the intake of the ditch or canal that is to be supplied 
 right near the reservoir that supplies it, and it is often located a 
 number of miles below the reservoir that furnishes the supply of 
 water. This is one practicable way of doing it. The nearer 
 
 4349 you can use the water to the place of impounding the more 
 economical it is. 
 
 Cross-examination on behalf of defendants. 
 
 By Mr. Hayt : 
 
 It is more economical to use the water for irrigation in the vi- 
 cinity of Roswell than it would be a long distance below ; and that 
 depends upon circumstances a good deal. A good many reservoirs 
 are made right in the bed of the stream. There is very often a 
 gorge where a dam could be put in and the reservoir would cover 
 part of the stream and then you would take it out and let the water 
 run down the stream and make its way down. In that way there 
 is not much loss, because I don’t think there is much seepage from 
 the bed of an old river. I don’t think there is much loss in that. 
 But where that is not practicable and you have to make a long 
 ditch along the side of the river and carry the water in that way a 
 long distance before you use it, that is generally wasteful, 
 
 4350 and how wasteful that may be depends on the character of 
 the water. For instance, in this Northern canal we carry the 
 
 water about fifteen miles before we use it. When we first built the 
 canal that was very wasteful because the canal went through a 
 porous soil, but the Hondo water is very muddy, and a very sticky 
 kind of mud, and in time that cemented the canal so that it is now 
 
THE STATE OF COLORADO ET AL. 
 
 1153 
 
 perfectly tight. You see there are such innumerable natural condi- 
 tions in all this irrigation business that it is not easy to lay down a 
 general rule in some things. Now, the waste water in the Southern 
 canal down below in the lower valley is great because the water 
 there is always clear. The mud of the Pecos river settles in these 
 reservoirs. When it gets into the canal it is clear, so that the canal 
 don’t cement and it don’t fill up these leaks as it does here. As a 
 general rule, the farther you take the water from the canal before 
 applying it to irrigation the greater the waste and the greater the 
 cost of maintenance. If that water had to be conducted into ditches 
 or canals for a distance of a hundred miles the leakage and evapo- 
 ration and cost of maintenance would in many cases take 
 
 4351 away all the profit of the enterprise and render it imprac- 
 ticable. 
 
 I have spoken of conducting this water in the bed of the stream, 
 and have stated that in some instances that would be less wasteful 
 than if conducted in canals. But I guess generally it would be 
 pretty wasteful. You take the Hondo, they will practice that, but 
 they will take it a short distance in the bed of the stream, and then 
 there will be no waste, apparently, to speak of ; but that is a peculiar 
 case because this muddy water makes the bottom of the stream tight. 
 In many a mountain stream that I think of in Colorado if that were 
 done I think it would be very wasteful. Generally, I should say 
 most decidedly it is a great deal better and more economical to use 
 the water as near as possible to where it originates. After you leave 
 the mountains many of these stream beds become dry and sandy 
 and very absorptive of the waters of the river. 
 
 I am familiar with the Arkansas river in the State of Colorado 
 and western Kansas, and that is a river which for a long distance in 
 eastern Colorado and western Kansas has a bed of dry, absorptive 
 sand that will soak up and waste a great deal of water. If the water 
 originating in Colorado were allowed to run down that stream 
 
 4352 until it got to Kansas before it were used, a great deal of it 
 would be wasted, not only from evaporation, which cuts some 
 
 figure, but from the fact that this porous bottom of the river would 
 absorb and waste it. There is no doubt about that. The storage of 
 water as I have described it in Eddy and Chaves counties and the 
 use of that water for irrigation as here used has been of further ben- 
 efit to the people below in the way of lessening the dangers from 
 the floods and freshets. Of course the bigger the reservoir the more 
 of a flood it will keep back and the less will go down to do damage. 
 That is just common sense and common experience. The greatest 
 benefit from the enterprises in this vicinity has been in holding back 
 the water to use in the dry seasons. I would hardly say they have 
 been of great benefit in the way of lessening the floods. The reser- 
 voirs in this valley really cut but small figure in storing the water 
 of the biggest floods. A flood continuing, for instance, a week, as 
 
 73—7 
 
1154 
 
 THE STATE OF KANSAS VSj. 
 
 they often do, will fill all the reservoirs in twenty-four hours, 
 
 4353 some of them, once in a while one of them such as w r e had 
 last fall; but it is the water that is held back that does the 
 
 good. If the storage of water here is extended, other reservoirs 
 built, and the purposes of the reclamation act carried out along the 
 Pecos river, that will have a beneficial effect upon the river below 
 in times of high water. 
 
 The streams I have mentioned from which water is taken for 
 storage and irrigation in Chaves and Eddy counties have their 
 sources in the Territory of New Mexico. I think the return seep- 
 age and drainage would not equal the total water taken out to a 
 large extent along the Arkansas river in Colorado and used for 
 direct irrigation. I don’t say that it would tend to equalize the 
 flow below during thedry season much. During the dry season what- 
 ever water there is is a continuous flow of water. If you 
 
 4354 take part of that out and say forty per cent, of it goes back 
 as seepage there would be sixty per cent, that would go some- 
 where else. It would not go down the river again. Of course the 
 evaporation from irrigation is very large. It is a great deal larger 
 than it is — you take a certain quantity of water out of the river and 
 spread it over the lands the surface is so much larger that the loss 
 from evaporation is large, a great deal larger than it would be from 
 the same water if you let it run down the river and didn’t take it 
 out at all. If this water was taken out during high water and spread 
 upon the lands adjacent to the Arkansas river for a distance of ten 
 or fifteen miles back from the river, that would result in a large 
 amount of seepage water returning to the river. If you took it out in 
 time of high water and took it back from the banks of the stream a 
 considerable distance, of course a great deal of that water would be 
 
 left in the land after the flood had ceased and would grad- 
 
 4355 ually find its way back to the river in the dry time. To that ex- 
 tent it would be a help to the stream below, and to that extent 
 
 it would act similarly to a reservoir and would act to that extent very 
 much as the forests on the mountains act, as a sponge to hold back 
 the rainfall and let it come down gradually in dry times. Of course 
 how much that would help would depend very largely on how far 
 you took it back from the river. If you used it right on the edge 
 of the river or very near the edge of the river it would soon drain 
 out; but if you took it back a considerable distance — the farther 
 back you took it the longer it would take it to get back to the river. 
 The better regulated it would be in proportion to the distance you 
 took it back. Now, you take it ten or fifteen miles below Carlsbad, 
 there are numerous springs along the edge of the Pecos river now 
 that did not exist when those irrigation works were established, and 
 all that comes from the drainage or seepage water that is used for 
 irrigation. That is notorious. Everybody knows that that lives 
 down there. Whether those springs are constant or perennial de- 
 pends upon the continuity of the irrigation. After a while if you 
 stopped irrigation the springs would stop flowing. The result up 
 
THE STATE Op COLORADO ET AL. 
 
 1155 
 
 to tli e present time with such irrigation as we have had has made 
 the lower river a great deal better river for irrigation 
 
 4356 than it was before. Generally speaking, I think we get of 
 forage crops, in this vicinity (Chaves county) certainly 
 
 two and a half or three times as much per acre per annum 
 as they get in Michigan or Wisconsin. I know of good fanners 
 in the Hagerinan district especially who make a good living 
 and prosper, with a family of five, on forty acres of land. 
 
 4357 I know a man who received $3,000 for the apple crop 
 off twelve acres two years ago. I know another man who 
 
 two years ago got $2,000 and this year I understand he got $2,500 
 for the apples off about fifteen acres. How much money a good 
 farmer can get off an acre depends very largely on what he raises. 
 Some celery growers here make a good living off two or three acres, 
 but generally speaking, with pretty good farming not the very best, 
 I think a family of five could make a good living off forty acres in 
 this valley. It is the tendency of development by irrigation to re- 
 duce the holdings to a small acreage of land. It is necessarily so. 
 A man cannot afford to own water rights and pay water rent on a 
 large acreage unless he makes good use of it. I think that with in- 
 tensive farming in a small tract much less than forty acres is suffi- 
 cient to support a family of five in this locality. I do think that, 
 because that has been proven, for instance, in Utah, among the Mor- 
 mons, especially those who are good workers. But it takes time for 
 that. As time goes on the tendency in irrigated districts is to make 
 small farms and a dense population. It is hard to say to 
 
 4358 what extent we depend upon the melting of the snows. We 
 do, considerably. Not as much as in Colorado, which is 
 
 farther north, and higher mountains. Our snow melts off quicker 
 than it does there ; but still it is a very great help not only because 
 the melting snows make the streams run water in the early part of 
 the year, which is usually the driest, but a great deal of the moist- 
 ure goes into the ground where the forests are and we get it 
 
 4359 gradually during the season from seepage. 
 
 Redirect examination on behalf of intervenor. 
 
 By Mr. Campbell: 
 
 The same natural conditions that prevail in New Mexico also pre- 
 vail in what is known as the arid region of the United States gener- 
 ally, over which I have been considerably, and which extends from 
 the 98th or 99th meridian almost to the Pacific coast 
 
 4360 west. 
 
 I am president of the company that owns a large apple 
 orchard in the Pecos valley of about 500 acres, and there are 50,000 
 trees. It has been developed by irrigation processes entirely. This 
 country is peculiarly adapted to the raising of apple trees. They 
 grow here better than in any place I ever saw. It would be impos- 
 sible to develop apple orchards here without the aid of irrigation. 
 
1156 
 
 THE STATE OF KANSAS VS. 
 
 Washington, D. C., February 25-March 9, 1905. 
 
 4362 B. S. Rodey, Washington, D. C. 
 
 Direct examination on behalf of intervenor. 
 
 By Mr. Campbell : 
 
 I am the present Delegate from the Territory of New Mexico to 
 the 58th Congress. I was also a Delegate in the 57th Con- 
 
 4363 gress. I have lived in New Mexico for twenty-four years. I 
 was city attorney of my home town of Albuquerque, a mem- 
 ber of the territorial council in 1889, and a member of the constitu- 
 tional convention of 1889-1890 in New Mexico, which convention 
 was called voluntarily by the citizens of the Territory without the 
 aid of any enabling act of Congress, under a local act of our own 
 legislature. 
 
 In a general sense, I have been over the Territory extensively 
 since I have been here, and am very well acquainted with its physi- 
 cal conditions. Only in portions of the Territory at an elevation of 
 7,000 feet and upwards can crops be grown by depending on rain- 
 fall, and in those places only short crops, those that ripen between 
 June and the latter part of September. The area where such crops 
 can be raised is small as compared with the bottom lands in 
 
 4364 the lower countries — about four or five per cent of the irri- 
 gated portions. The area along the Rio Grande and Pecos 
 
 rivers and the other streams where crops are actually raised by irri- 
 gation is about half a million acres, in my opinion. The Geological 
 Survey gives it at considerably less than that, but I think the Sur- 
 vey is wrong. I have repeatedly stated in speeches on the floor of 
 the House and before the committees of Congress that in my opinion 
 when all the flood waters of the catchment areas of New Mexico are 
 impounded somewhere between ten and fifteen millions of acres can 
 be irrigated. I know that many people disagree with this 
 
 4365 view, but I have arrived at that conclusion deliberately. I 
 should say that one-half of this area is now Government 
 land. This land in its present condition has no value except 
 
 4366 as pasture land. It would be worth about fifty cents an acre. 
 When irrigated, this land in the main river bottoms near the 
 
 large towns would be worth anywhere from fifty to three hundred 
 dollars an acre. If the utmost limit of possible irrigation were 
 realized it would support two or three millions of people in the 
 Territory, but I anticipate it will be many years before that will be 
 done. 
 
 If the people of the Territory are compelled to permit the waters 
 of the streams to run undiminished and unaffected it would stag- 
 nate the Territory. If the old common law doctrine of riparian 
 rights, that water must go by undiminished and undeteriorated in 
 quality, should prevail in New Mexico and the semi arid Southwest, 
 it would render the streams useless and the land along them abso- 
 
THE STATE OF COLORADO FT AL. 
 
 1157 
 
 lutety useless. You cannot irrigate at all from any stream without 
 loss to the stream in quantity of water, because you lose what forms 
 the water table in the ground, what goes into plant life and what 
 evaporates, which, in the first years of its use, is considerable, grow- 
 ing less as the use continues and the water table in the ground 
 
 4367 becomes permanent. If the irrigated area were confined to 
 lands lying near or adjacent to the stream, say the first or 
 
 second 40, it would render future development small. It would 
 consist only of little ribbons of land along the streams. It would 
 stagnate it, practically. And if they were confined to the lands im- 
 mediately adjacent to the stream it would thwart the main purpose 
 of the reclamation act of Congress of June 17, 1902. 
 
 I have made considerable study of this question of irrigation, and 
 mv views to some extent are expressed in the reclamation act. In 
 regard to what that act would accomplish if it was administered in 
 accordance with the spirit in which it was enacted, I will say 
 
 4368 that it will accomplish the full reclamation of the West. It 
 will turn to beneficial use all the waters that fall in the entire 
 
 catchment areas of the West, or as nearly so as can be; and the 
 possibilities of reclamation under that act in my opinion are 
 
 4369 not even appreciated by the reclamation service at this time. 
 I was at Solornonville, Arizona, a few years ago, near the Gila 
 
 river, and I witnessed the fact that the water of the river was taken 
 out and entirely used in the irrigation of some wheat fields on both 
 sides. Thereafter I was driving down the stream and I saw that 
 the water reappeared in apparently almost undiminished quantity 
 five or six miles below. 
 
 I am familiar with the general history of New Mexico. The 
 waters of New Mexico have been used for irrigation from time 
 
 4370 immemorial. First the waters were used bv the ancestors of 
 the present Pueblo Indians when those Indians were im- 
 mensely more numerous than they are at the present day. The re- 
 mains of their acequias and ditch systems are apparent even unto 
 this day. Even when the Spaniards first went in the territory in 
 1539 the Pueblo Indians were irrigating in the Rio Grande valley. 
 There was no settlement at that date farther south than the present 
 San Marcial or old Fort Craig. Later there was a settlement down 
 at El Paso. Different pueblos used the water for irrigating at dif- 
 ferent points up the Rio Grande valley from San Marcial up as high 
 as Taos during the two centuries following; but several of these 
 pueblos have gone to ruins or changed their locations or died out 
 
 before the United States took possession of the county in 
 
 4371 1846. Practically the whole Rio Grande valley from the 
 places where the river debouches from the deep canon it oc- 
 cupies from the Colorado line straight southward into New Mexico 
 for about sixty or seventy miles to Embudo has been irrigated from 
 thence southward to almost the Texas line at some time. Of course 
 I except from that long stretch of valley at places where the river, 
 
1158 
 
 THE STATE OF KANSAS VS. 
 
 as at Elephant Butte, is in the canon and cannot be taken 
 
 4372 out on the river bottoms near by. I have seen water enough 
 in the Rio Grande at my town of Albuquerque to float a 
 
 man-of-war were it deep enough, but of course it is not more than 
 three or four feet deep and is spread over a good deal of country. I 
 have seen that continue for a month at a time when it was not 
 necessary and could not be used for irrigating the crops. It went 
 down toward the sea unused. I said “ toward the sea ” because I 
 don’t think that any water that ever flows in Colorado or northern 
 New Mexico gets to the sea, at least not on the surface. It 
 
 4373 all evaporates or sinks into the sand before it reaches the 
 
 mouth of the Conchas river in Texas. Later on in the sum- 
 mer months the Rio Grande grows less and less in the quantity of 
 
 the water that flows in it, and that is used for irrigation, and at 
 times gets very scarce. I have seen the river absolutely dry from 
 ten miles north of Albuquerque to El Paso for several months at a 
 
 time. 
 
 4374 The aim of the reclamation act was to impound the flood 
 waters and incidentally the perennial flow as well, whenever 
 
 that was possible by arrangement with those who might have prior 
 appropriations. As to what was to be done with the perennial flow 
 when parties had a prior right, that question was argued in 
 
 4376 the committee at great length. If you impound the waters 
 of a stream to the detriment of a prior irrigator below, it is 
 
 my legal opinion that that must be done only by condemnation 
 proceedings, (objection by defendants); but there are other ques- 
 tions that come in, and that is, — I have considered it somewhat, — 
 if the impounding of that river occurred in another jurisdiction 
 there is a grave question as to whether or not he would have any 
 remedy. If it occurred in a different State, for instance, or Terri- 
 tory. If it occurred in the same jurisdiction it would be a vested 
 right. There is no question about it. You cannot take it away. 
 If the water were taken away in another State, I have very 
 
 4377 decided views on that. 
 
 The impounding and use of the headwaters of the Rio 
 
 4378 Grande in Colorado has undoubtedly lessened the quantity 
 of the perennial flow in New Mexico and to that extent injure- 
 
 the actual irrigation and possibilities of irrigation in that Territory. 
 I cannot say to what extent off-hand, but I know the yearly flow in 
 the upper Rio Grande where I live is much less than it was twenty- 
 four years ago and is universally conceded to be caused by the tak- 
 ing out of the waters in Colorado principally. Very little in New 
 Mexico above that. (Objection by defendants.) 
 
 4379 Now, going back to your former question, it is a difficult 
 question as to the right of an up-stream State to take all of the 
 
 water. As to the effect on a down-stream State of taking the water 
 in the up-stream State, I will say that if the irrigation project that 
 would result in that is built so far above the State line as that all 
 
THE STATE OF COLORADO ET AL. 
 
 1159 
 
 the water impounded is used before it reaches the upper line 
 4382 of the down-stream State it might affect the conditions below. 
 
 It was not the purpose in passing the reclamation act to give 
 the up-stream State the right and power to take all the flood and 
 perennial waters of an inter-State stream regardless of the fact that 
 the lower stream State has been in existence and its property has 
 been created before the settlement of the up-stream State. That cer- 
 tainly was not the result intended to be obtained by the passage of 
 the act. 
 
 4384 As to the extent to which the Rio Grande river has been 
 lowered or dried up by the use of water for irrigation pur- 
 poses in the State of Colorado, I cannot answer definitely. (Objec- 
 tion by defendants.) I know it has diminished the quantity some, 
 but how much I couldn’t sav. I have examined the measurements 
 in the Geological Survey of the United States Government of the 
 Rio Grande at Embudo, Rio Grande, San Mareial and El Paso, but 
 in my opinion they do not go back far enough to enable me or any- 
 one else to estimate the loss by the use of water in Colorado, because 
 we cannot tell what the flow of the river was prior to the making of 
 those measurements, but it was more than it was at their beginning, 
 I am sure. (Objection by defendants.) But I want to add this 
 
 there in explanation of the answer I have given, that it is 
 
 4385 contended by people living in the Rio Grande valley and by 
 the Geological Survey that a continuous drouth of more than 
 
 ten years last past, probably fifteen, with slight intermissions, has 
 existed in the upper Rio Grande catchment area in both Colorado 
 and New Mexico. 
 
 I have here the record of the mean annual flow of the Rio 
 
 4386 Grande for the years indicated and at the places named, 
 which is as follows, in second-feet: 
 
 4387 At Embudo 1889 1,032 
 
 1890 ; 1,467 
 
 1891 1,855 
 
 1892 1,240 
 
 1893 841 
 
 1895 1,222 
 
 1901 787 
 
 1902 390 
 
 1903 1,437 
 
 At Rio Grande 1897 2,610 
 
 1898 1,501 
 
 1899 943 
 
 1900 977 
 
 1901 1,179 
 
 1902 587 
 
 1903 2,306 
 
1160 
 
 THE STATE OF KANSAS VS. 
 
 4388 At San Marcial 1897. 
 
 1898. 
 
 1899. 
 
 1901. 
 
 1902. 
 
 1903. 
 
 At El Paso 1890. 
 
 1891. 
 
 1892. 
 
 1897. 
 
 1898. 
 
 1900. 
 
 1901, 
 
 1902 
 
 1903, 
 
 3,045 
 
 1,335 
 
 332 
 
 901 
 
 278 
 
 1,762 
 
 1,327 
 
 2,653 
 
 1,285 
 
 1,871 
 
 922 
 
 236 
 
 499 
 
 70 
 
 1,429 
 
 Cross-examination on behalf of defendants. 
 
 By Mr. Dawson : 
 
 4389 Tt is true that the construction of reservoirs in an up- 
 stream State and the using of water for irrigation in that 
 
 State at times when there is an excess of water will augment the 
 flow of the stream in the down-stream State at a time when the 
 water would be low ; and I go further than that, though, and con- 
 tend that it augments the flow in the down-stream State at all times 
 when the water table is made in the upper State. I am firmly of 
 the opinion that the construction of any impounding reservoir in 
 an up-stream State ultimately helps the flow of the water in 
 
 4390 the down stream State. I am of the opinion that the reser- 
 voirs should be commenced near the heads of the streams in 
 
 their order, because water impounded down stream is forever lost to 
 the upper country. There is not much difference in the two modes 
 of impounding water — either by reservoirs or by irritating the lands 
 by flood waters. If you use it on land it keeps soaking away and 
 makes a continuous stream below more steadily. If you let it loose 
 from a reservoir above it flows down at once with very little loss to 
 the place where it is to be used, but flows suddenly and ends quicker. 
 In my opinion the flow of inter-state streams may be equalized by 
 the impounding of water in reservoirs and by the use of the 
 
 4391 water on lands near the head of the stream in the way of irri- 
 gation. In that way the maximum flow of the lower stream 
 
 can be diminished and the minimum flow increased ; and not only 
 that, but that is the natural result of it. The building of the down- 
 stream reservoirs after the reservoirs are once constructed on the 
 tributaries and headwaters of the stream puts to beneficial use more 
 of the water, or to additional beneficial use, because some of that 
 same water would have been used before. I might say here that 
 the same water on a long semi-arid country stream might be used 
 
THE STATU OF COLORADO ET AL. 
 
 1161 
 
 for irrigation up near the head of the stream and then again farther 
 down, and afterwards still farther down, until, if it had no additions, 
 the quantity would be diminished to almost nothing by using 
 
 4392 it over and over again. I know as a matter of fact from per- 
 sonal experience and observation that water can be used over 
 
 and over again in this valley. The instance I cite from Solomon- 
 ville, Arizona, can be seen by anybody, where the whole stream is 
 actually taken out and put on the land and the stream recurs five or 
 six miles below. An 1 that is true all over the arid west where 
 waters are used for irrigation along the streams from which the 
 water is taken for irrigation. 
 
 I have made personal investigations for the purpose of determin- 
 ing the underflow of streams and how much it amounts to, and can 
 give an instance on the Rio Grande. The Rio Grande 
 
 4393 from the time it leaves Santa Domingo, which is some forty 
 miles below Etnbudo, to a point at which the bed rock is the 
 
 bottom of the stream and the entire stream is necessarily on the sur- 
 face or apparently so, diminishes vastly in quantity in the next ten 
 or twelve miles, when it strikes the alluvial bottom of the Rio 
 Grande, and at Corrales, thirty miles farther down, there is not any- 
 where near as much water. But from this rock bottom point at 
 Santa Domingo south to El Paso and perhaps farther — because I 
 have not had knowledge of the stream below that — there is a series 
 of underground lakes from Santa Domingo down to below Albu- 
 querque, and the first lakeoccursin the river bottom proper, which 
 bottom is from three to eight miles wide for all that distance. The 
 lake begins at about ten feet or less beneath the surface and extends 
 about forty-five feet; then occurs an impervious stratum, and there 
 is no water until you reach seventy feet in depth again, and from 
 seventy to ninety-five feet there is another stratum of water, and 
 then varying small strata of water a foot thick and less down to 
 seven hundred feet, which is the deepest examination made. When 
 you put a pipe through the upper stratum within eight or ten feet 
 of the surface, from the bottom of that stratum at forty-five feet 
 down to the seventy foot lake the lower lake flows into wells 
 
 4394 in the upper lake, and it don’t make any difference how big a 
 pipe you put in — you can put in an inch pipe or one as big as 
 
 a barrel and the water from the lower lake flows into the upper one, but 
 it is not artesian and will not come to the surface. The water works 
 at my home town, Albuquerque, pump millions of gallons every 
 twenty-four hours at the masonry wells they have inserted in this 
 upper lake, and in very dry seasons when the upper lake becomes less- 
 ened in quantity after the pumping of bill ions of gallons, perhaps, they 
 utilize these pipes to the second stratum and get that. Now, of course 
 apart from the water that comes from the ranges of mountains to the 
 east and west of the stream, most of the water in these underground 
 lakes in all probability comes from the Rio Grande and has soaked 
 in there in recent years. These lakes occur in gravel, and their 
 flow is southward like the river on the surface, but much slower 
 
 • 
 
1162 
 
 THE STATE OF KANSAS VS. 
 
 Sometimes these lakes, as at El Paso, are not to be found ; they go 
 off around the mountains sidewise. In fact right at El Paso, where 
 they sounded for the international dam, they do not find lakes, but 
 they find some water; but at San Marcial, in the Mesilla valley, 
 these underground lakes are found and pumping plants dem- 
 
 4395 onstrate their presence. These underground lakes are not 
 pure water but gravel and sand filled with water. That is 
 
 what I mean. And the movement through that gravel and sand is 
 slow. It is with the direction of the stream. Then because of the 
 existence of these large underground bodies of water the irrigation 
 possibilities are greater than many people appreciate. At places on 
 the Rio Grande large quantities of water disappear, comparatively 
 speaking, in short distances, then the river may remain equable in 
 quantity for many miles, long stretches, and then lose vast quanti- 
 ties again. The Geological Survey measurements show that twice 
 as much water passes San Marcial as ever passes El Paso, and the 
 distance between them is some 130 miles, I think. 
 
 4396 The violence of storms in the mountains I think is often 
 such that it is not practicable to hold or capture all of the 
 
 flood water by any ordinary reservoir system. I do not think it 
 would ever pay to put a reservoir in the minor tributaries up in 
 the mountains of such vast size that it would catch all possible 
 water that would fall but the reservoirs put at the headwaters of a 
 stream in that way together with those down the stream at different 
 points ought to be large enough to hold it all, and that ought to be 
 the object of all reservoirs. If you would put a reservoir at the 
 headwaters of any tributary, up on the little branches big enough 
 to catch any possible fall of water there, it would make the 
 
 4397 land you had to irrigate cost too much per acre. You never 
 could do it. You would have to catch that excess flow farther 
 
 down. And in order to completely carry out the reclamation serv- 
 ice it will require reservoirs both in the up-stream and the down- 
 stream States. 
 
 4398 I went to New Mexico in 1881, and it is my opinion that 
 more water fell in that year than I have ever seen since in 
 
 one year fall in the Territory, and all over that western country. 
 
 There are vast stretches of country in the Rio Grande valley at 
 different places in New Mexico where you can walk over the ground 
 now — and I have done it — and trample over the remains of irrigat- 
 ing ditches, and that land has not been irrigated in the last ten or 
 twelve years. 
 
 4399 I am sorry to say that there has been a great destruction 
 of timber at the head of the Rio Grande and its tributaries 
 
 in the last ten or fifteen years, and I believe I will have to admit 
 that the cutting of timber results in the quick flowing off of the 
 
 4400 water. I guess I will have to admit that the cutting and burn- 
 ing of the timber and the close grazing of the mountain lands, 
 
 the trampling out and eating off of the grass and the destruction of 
 the underbrush all tend to a quick disappearance of the snow in the 
 
THE STATE OF COLORADO FT AL. 
 
 1163 
 
 spring. The evaporation from snow lying on the ground is also 
 much greater where it is exposed to the rays of the sun and the ac- 
 tion of the wind than wiiere it is protected by timber and 
 
 4402 underbrush. The development of the towns, cities, agricul- 
 tural population, railroads, etc., in New Mexico, outside of the 
 
 stock growing industry, is dependent in a very large degree upon 
 the water used for irrigation. 
 
 Recross-examination on behalf of complainant. 
 
 By Mr. Ashbaugh: 
 
 4403 It is noticeable that the drouth I spoke of occurred since 
 the use of water in the San Luis valley for irrigation in Col- 
 orado and that fact is often referred to as the cause of the drouth, 
 and it is to some extent the cause of it. (Objection by defendants.) 
 
 In speaking to the effect that water that is used for irrigation 
 would go down and could be used repeatedly, over and over again, 
 I did not mean to be understood to say that the total amount used at 
 the first or upper irrigation goes down exclusive of any amount 
 that is evaporated and goes into plant life. It goes down subject to 
 all those deductions. 
 
 Redirect examination on behalf of intervenor. 
 
 By Mr. Campbell: 
 
 4404 I think much more than a quarter of a million acres of 
 land in New Mexico would produce a crop without irriga- 
 tion. I don’t think much more than that. 
 
 4405 George H. Maxwell, Washington, D. C. 
 
 Direct examination on behalf of intervenor. 
 
 By Mr. Campbell: 
 
 My legal residence is in California at present. lama practic- 
 ing attorney. I was admitted to the bar in 1881. I practiced con- 
 tinually until three or four years ago. I am chairman of the exec- 
 utive committee of the National Irrigation Association, of which 
 Thomas Walsh is the president. 
 
 When practicing law in California I had my offices in San Fran- 
 cisco, but my practice extended all over the State. I have tried 
 
 4406 cases in every county in California from the north end of the 
 State to Santiago, in a continuous line. I practiced there 
 
 seventeen or eighteen years. I was connected in a professional 
 capacity with a case known as the Fallbrook Irrigation District vs. 
 Bradley. That case involved the constitutionality of what is known 
 as the Wright act, and that turned to a certain extent upon the 
 physical conditions of California with respect to irrigation. I have 
 
1164 
 
 THE STATIC OF KANSAS VS. 
 
 devoted the last ten years almost exclusively to irrigation questions. 
 The last few years of my law practice very largely drifted 
 
 4407 into that field. I am very familiar with the conditions in some 
 of the States and Territories of the arid region by personal 
 
 observation and from studying all available sources of information. 
 I think I might say I am familiar with all of the Western States 
 and Territories. 
 
 The arid region covers the entire west half of the United States, 
 approximately, west of about the 98th meridian, with the exception 
 of a strip of land lying between the Cascade mountains and the 
 upper part of the Sierra Nevada range and the Pacific ocean. Of 
 course in that entire area there are some mountain valleys and 
 isolated sections of country, a very limited area, where crops will 
 grow without irrigation, but in a general way I should sav the 
 western half of the United States, with the exception of the strip I 
 have mentioned, is arid country. Of course that line I mentioned, 
 the 98th meridian, is not a straight line north and south ; it is a line 
 which has some modifications from north to south and which varies 
 back and forth somewhat with the seasons. In what is termed the 
 arid region of this country crops cannot be successfuly raised from 
 one year to another by the natural and usual rainfall and the de- 
 velopment that has already been made was dependent upon 
 
 4408 irrigation. I think that the area of land actually and per- 
 manently provided with a water supply in the arid region 
 
 which will produce crops in all seasons is probably less than seven 
 million acres, although it may not be. Of course there is a very 
 large area which is capable of irrigation in wet seasons and which 
 is not capable of irrigation in dry seasons, and if that is all included 
 it would enlarge the area very much. It is a fluctuating area ; you 
 cannot fix it absolutely. 
 
 In respect to the amount of land in the arid region which can be 
 reclaimed by utilizing the waters of the streams there and by im- 
 pounding the flood waters and using them, the Geological Survey 
 has issued official reports in which the area is estimated at seventy- 
 four million acres. I think Major Powell, when he was the director 
 of the Survey, thought it might reach one hundred million acres. 
 My own idea is that if we assume there is a visible water supply to- 
 day for seventy-four million acres, in the future we will find 
 
 4409 that that amount will be doubled and trebeled, and possibly 
 even more, by the gradual enlargement of the area which 
 
 will be brought under irrigation as the country develops, through 
 return seepage and better methods of cultivation which will show 
 that less water is necessary, and, 1 think, in the planting of forests 
 which will serve to conserve the water and possibly increase the 
 rainfall. I don’t think it is possible to fix it absolutehq that is as 
 to the limit of possible development. I can illustrate that by the 
 San Joaquin valle # y. In the minds of the old settlers of that valley 
 it was a hopeless desert. To-day in many parts of it it is a beauti- 
 ful irrigated country, and over large areas where originally the water 
 
THE STATE OF COLORADO KT AL. 
 
 1165 
 
 table was from seventy-five to one hundred feet from the surface it 
 is now so close to the surface that it is injurious to fruit and some of 
 the crops they produce, and the question has become one of drain- 
 age rather than irrigation, and there is not a doubt but that there is 
 water enough available to irrigate every acre of land in the Sacra- 
 mento and San Joaquin valleys. Within fifty years I thould say 
 one hundred and fifty million acres can yet be reclaimed. 
 
 4410 Without regard to the possibility of its future irrigation, that 
 land in its present condition is worth very little — perhaps 
 
 $1.25 an acre. Some of it would not be worth that. If reclaimed 
 by irrigation the land would be worth all the way from $50 to $500 
 an acre. 
 
 In regard to the number of people this additional land when ir- 
 rigated would support, I think the statistics of irrigated sections 
 show that when an irrigated section of country with a reasonably 
 moderate climate has been fully developed it sustains a population 
 of from one to two per acre. I think it is safe always to estimate 
 that if you have a certain number of acres of irrigable land in the 
 long run it will develop a population of that many souls; I 
 
 4411 mean directly and indirectly. For instance, if we have 
 seventy-five million acres in sight with a visible water supply 
 
 I think it would be safe to assume that in time it would support 
 seventy-five million people. There is one qualification I want to be 
 clear on there : That opinion as to population is of course based on 
 the assumption that the irrigable lands are sub-divided into farms 
 of the smallest area that will support a family on each farm unit. 
 
 I am familiar with the riparian rights doctrine. In answer to 
 your question as to whether the development which has already 
 been had in the arid region with respect to agricultural and horti- 
 cultural lands could have been made by a strict application of that 
 doctrine, I should like to explain a little some of my views about 
 the law of riparian rights. I should answer your question that it 
 could not be developed, but I think there have been a great many 
 decisions and opinions written and a great deal of conversation and 
 talk about the riparian doctrine that has been based, to a very large 
 extent, upon a wrong conception of what the law of riparian rights 
 was even in England. As I understand the law of riparian owner- 
 ship, it always recognized a concurrent right of use, and it was al- 
 ways a relative right when it came to a question of the rights of 
 other owners, and I think a great many cases have been de- 
 
 4412 cided or opinions written without having in mind the flexi- 
 bility of the law of riparian ownership, even in England, 
 
 where it originally prevailed. But the application of the principle 
 that the lower riparian owner is entitled to have the water come 
 down to him undiminished in quantity and undeteriorated in qual- 
 ity, applied in its strictness to the west, would absolutely prevent 
 its development. That is, prevent any future development; and 
 with respect to present development, if you should apply it to-day 
 to existing conditions, eliminating all questions of estoppel and 
 
1166 
 
 THE ST\TE OP KANSAS VS. 
 
 eliminating rights which have grown up to irrigate, which the 
 courts have conceded by reason of riparian ownership as a reason- 
 able use of the water for irrigation — -if you should apply the law 
 without these limitations you would destroy all communities in 
 many places. 
 
 Should it be established that the irrigated area in the arid region 
 should be confined to lands riparian to the stream, say the first and 
 second 40’s, its effect would be destructiue upon any future develop- 
 ment in the arid region, and would cause an immense de- 
 
 4413 struction of present development. 
 
 If a doctrine should be applied that would confine the ir- 
 rigated area to riparian lands it would practically render inopera- 
 tive the reclamation act. Of course I want to make it clear that I 
 do not concede that that is the law of the arid region. If it should 
 be established that upon an inter-state stream the State where the 
 stream heads or rises should be entitled to all the waters of that 
 stream irrespective of the rights of any person below for irrigation 
 purposes, the effect upon the reclamation act of 1902 would be to 
 render it inoperative, except in those upper States. 
 
 1 have made sufficient study of the arid region to know that one 
 of the questions of prime importance in that region is the cultiva- 
 tion of the forests. I think the maintenance of the forests we have, 
 at least, without further destruction, is essential to the preser- 
 
 4414 vation of the water supply that we now have; and I think 
 the reforestation of areas that have been denuded and the 
 
 planting of large areas of new forests could be made to largely in- 
 crease those water supplies. Forestry can be increased by means of 
 irrigation in the arid region. Many millions of acres could be 
 planted and made to pay as a business investment. I think irriga- 
 tion makes it possible to produce forests so quickly and of such a 
 fine quality of tree that in a comparatively few years we could pro- 
 duce from newly planted forests enough timber and wood to supply 
 all the needs of this country, if the forests were upon land 
 
 4415 that could be irrigated so as to get the necessary start. The 
 raising of forests by irrigation for commercial purposes could 
 
 not be successfully accomplished under the application of the strict 
 doctrine of riparian rights, nor could these forests be successfully 
 cultivated should the irrigated area be confined to riparian lands 
 along the streams. I was at one time very familiar with the decis- 
 ions of California with respect to irrigation, but I have not been as 
 close to my law books in the last two or three years as I used to be. 
 
 In respect to the question as to whether the doctrine of riparian 
 rights in the strict sense is enforced in California with respect to the 
 waters of the streams in that State, I should say no, although we 
 have some decisions there which have been based upon the riparian 
 doctrine, which are unfortunate, to say the least, for the welfare of 
 the State, and which I think were wrongly decided and will event- 
 ually be reversed. The particular cases I refer to are the cases of 
 
THE STATIC OE COLORADO ET AL. 
 
 1167 
 
 Hargrave vs. Davis and Bathgate vs. Irvine. (Objection by 
 
 4416 defendants.) In regard to the case of Lux vs. Haggin, that 
 case has been very much qualified and I never interpreted 
 
 the decision in that case as going as far as some people did. A curi- 
 ous feature about the development of the law of water in California 
 has been that in the early decisions the question of the relative 
 rights of use received comparatively little consideration. The case 
 of Lux vs. Haggin was really fought out on the square proposition 
 that the law of riparian ownership did not apply and that the stat- 
 ute of appropriation practically created a right which took prece- 
 dence over the riparian right, without going into the legal elements 
 which have since very thoroughly been threshed out by the courts 
 astothe relative rights of riparian owners and appropriators to the use 
 of the water, and 1 think the drift of decision in California is entirely 
 in the right direction. The last leading case there, the case of Katz 
 vs. Wilkinsham, to my mind, is a mile-post on the road that is go- 
 ing to guide us in the future in the right direction, and that practi- 
 cally put the law thereon the right basis, which is that the riparian 
 law of England in ils application to California must be interpreted 
 in the light of the physical conditions that exist there, and that be- 
 ing done, the question becomes one of use, whether the basis of the 
 right is riparian ownership or appropriation. 
 
 Cross-examination on behalf of complainant. 
 
 By Mr. Ashbaugh: 
 
 4417 As to what would be the effect upon the lower States if the 
 mountain States had the right to take and control all of the 
 
 waters that rise in them, assuming that they did take it all, and 
 apply all of those waters to uses for irrigation within their own 
 borders, of course it would be destructive of all irrigation 
 
 4418 development in the lower States. (Objection by defendants.) 
 I think that nearly all of the streams on the west side of the 
 
 Missouri river rise in what is known as the arid region. If the 
 right to use all of those waters were confined to the crest States, of 
 course it would have a very detrimental effect upon any of the 
 lower States, to the extent of the destruction of their irrigation in- 
 terests, which would have been extensive if those waters had 
 
 4419 continued to come down. And this would destroy all agri- 
 cultural development dependent upon irrigation from the 
 
 rivers rising in the crest States. (Objection by defendants.) If Colo- 
 rado and Wyoming should take all of the water and dry up 
 
 4420 irrigation in the other States, the detrimental effects would 
 reach from Maine to the Pacific ocean, from Canada to New 
 
 Orleans. You cannot limit it. The commerce, transportation and 
 industrial interests of the country are so closely interwoven that you 
 cannot destroy any part of the country without affecting the entire 
 country, and the effect is necessarily relative. It would have 
 
 4421 an enormously detrimental effect upon all the property of 
 Nebraska that was not created by irrigation if Colorado and 
 
1168 
 
 THE STATE OP KANSAS VS. 
 
 Wyoming should divert ail of the waters that rise within their bor- 
 ders and flow down. The same effect would apply to Kansas. Under 
 this claim it in my judgment would render the national irri- 
 
 4422 gation act practically inoperative. (Objection by defend- 
 ants.) This would be the effect of such a claim, if fully car- 
 ried out, upon the three Statesof Nebraska, Kansas and New Mexico, 
 and I would prefer to confine my answer to those three States, be- 
 cause I do not know that you could say that there are other States 
 
 similarly situated. (Objection by defendants.) 
 
 4423 The question of return seepage is always a relative one. 
 Now, from my knowledge of the eastern slope of Colorado I 
 
 believe that in time an area of land could and would be brought 
 under irrigation in eastern Colorado which would by evaporation 
 and plant growth consume all the water which flows now across the 
 State line into Kansas and Nebraska. In other words, my own 
 judgment of it is that for a period of years the seepage would 
 
 4424 increase the flow of the stream but that eventually the area 
 in Colorado would become so large that it would use all the 
 
 return seepage and the South Platte and the Arkansas would be dry 
 streams from the Colorado line down; and I think this would be to 
 a very large extent true of the Rio Grande, though perhaps 
 4429 not so extensive. As to what effect this condition of taking 
 all of the water in an up-stream State would have upon the 
 contracting of the reclamation service to the crest States, so far as it 
 could be applied to Nebraska, Kansas and New Mexico, I think it 
 would render the national irrigation act inoperative below the line 
 of Colorado on streams flowing out of Colorado and into those other 
 two States and the Territory I have named. It would be enor- 
 mously prejudicial to the development on the Colorado river below 
 the Grand Canon, but I do not think it could be said to entirely 
 render the act inoperative because I do not think Colorado could 
 use all of the water that rises in Colorado. It might be used in 
 Colorado and Utah ; I don’t know how that is. 
 
 Cross-examination on behalf of defendants. 
 
 By Mr. Dawson : 
 
 4432 If it be true that large tracts of land are irrigated in the 
 valley of the Arkansas river in Colorado down to the Colo- 
 
 rado-Kansas line, as conditions exist at the present time I believe 
 there is a considerable amount of return water appearing east of 
 the Colorado-Kansas line as the result of that irrigation, but 
 
 4433 it is not necessarily true that the return waters will continue 
 to exist as they do and in all probability increase across the 
 
 line into Kansas. I have watched the development very closely and 
 I think there is a very strong tendency where water is very valuable 
 to apply better methods of irrigation which limit the water used for 
 the irrigation of a crop to the amount necessary to produce that crop 
 without what is a waste as to that particular area in return seepage. 
 
TttE STATE OE COLORADO ET At. 
 
 1169 
 
 The amount that any one irrigator is entitled to use, as I understand, 
 under the laws of Colorado, does not exceed what can be beneficially 
 applied for the purpose of producing the best possible crop on a given 
 area of land. Now, if there is return seepage from the irrigation 
 of a large tract of land, there is at least as much water as 
 comes back into the stream applied originally in excess of what was 
 absolutely necessary, which could have been avoided by proper and 
 more skilled methods of irrigation ; and I want it understood that 
 my opinion in this matter as to future developments is not based 
 upon a continuance of the present methods of irrigation by flooding 
 which generally prevail, each farmer using all the water he thinks 
 he is entitled to and can get. I think the future development will 
 very largely limit the amount used and that the return seep- 
 age will decrease in the future as the amount applied is less and less 
 by reason of the application of better methods of irrigation — 
 
 4434 that is, more economical methods of irrigation. There is a 
 very strong and proper movement now being carried on in 
 
 the West for the adoption of more economical methods of irrigation. 
 In a country where the ditches run full of water all the time as they 
 do in some places, there is necessarily a very large waste of water, 
 which goes into the land and does more harm than good, and there 
 are a great many sections in the West to-day where they are doing 
 great harm by applying too much water, and I believe that 
 to a very large extent the alkali problem, which is a very threaten- 
 ing one in many localities, may be overcome by applying 
 
 4435 less water. I think it is largely true that in India and Italy 
 and those countries which have practiced irrigation for many 
 
 hundreds of years the seepage or return waters are greater than we 
 find, generally speaking, in the arid region of America. I think it 
 is equally true that a very large amount of return seepage is due to 
 the very large application of water, and an excessive appli- 
 
 4437 cation. If you can apply water often enough in irrigating 
 alfalfa by flooding you can obtain results from it without re- 
 turn or seepage waters, and I have seen that done. I have seen 
 alfalfa growing in a great many countries where every drop of the 
 
 water going into the ground would go into the alfalfa ; no 
 
 4438 return seepage at all. I never owned a piece of irrigated 
 land that I now recall, but I have lived on irrigated land, in 
 
 the Salt River valley in Arizona, and I have been familiar with ir- 
 rigation in that locality for several years. I was not there contin- 
 ually during that time, but have been back and forth there for 
 several years. I was there continuously, I think, for 
 
 4439 six or seven or eight months. They irrigate there when 
 they can. They have what they call their runs of water 
 
 there and would irrigate when they could get the water in 
 the dry season. In the wet season the ditches ran full, of 
 course. The condition there is that a very large amount of 
 water is wasted during the seasons or times when the river 
 is high and then the river goes down and there is a very great short- 
 74—7 
 
1170 the state of Kansas vs. 
 
 age of water during the other portions of the year. It is necessar\r 
 for irrigation, that is, of advantage, to so saturate the ground 
 
 4440 that there will be some excess of water in it to carry the crops 
 through the dr}' period, when it would not be necessary if the 
 
 farmer could draw his water from a reservoir, for instance, at what- 
 ever periods it was most needed for his crops and in whatever 
 amounts could be applied to the very best advantage without over 
 irrigating. It is a proper use of water to put sufficient on the ground 
 during the times of flush flow to make seepage or return water later 
 on in the season, and that is the very point I have been trying to 
 make clear in my testimony — that as conditions exist now and 
 under the methods of irrigation that exist now there would be un- 
 doubtedly return seepage. Of course when I speak of the eventual 
 disappearance of return seepage I have in mind that it is assumed — 
 or at least I based that suggestion in my testimony upon the assump- 
 tion that Colorado would have the right in future years, if she 
 could by any method stop that return seepage and use it farther up 
 on the lands, to do so, and I believe Colorado would develop ways 
 of very economical use of the water so as to eventually use that 
 water higher up and prevent it from passing the line, even 
 
 4441 though it would be considered return seepage at this time. 
 In other words, I don’t think there is sufficient water in the 
 
 Arkansas, taking the twelve months through, to make it physically 
 necessary that there should be return seepage, and if Colorado had 
 the right as a matter of law to use that water, even though it might 
 now be considered return seepage, she would develop ways 
 
 4442 for doing it in the future. You can get better results from 
 the same amount of water if you use it near its source so as 
 
 to avoid the evaporation and waste in transmission than you could 
 by using the same amount of water farther down the stream, and I 
 understand that the Arkansas has the characteristics common to all 
 of the mountain streams which proceed out onto the plains on the 
 eastern slope. That is, that it tends to disappear or lose its visible 
 flow as it proceeds from the mountains onto the arid plains; that 
 there is sand and material along the river that gradually absorbs a 
 considerable portion of it; but whether there is any large amount 
 of it diverted by an underground stream or anything of that kind, 
 I don’t think any of us know. I don’t imagine there is. 
 
 Redirect examination on behalf of intervenor. 
 
 By Mr. Campbell : 
 
 4452 In general terms, the objects and purposes of the associa- 
 tion of whose executive committee I am chairman is to aid 
 
 4453 and assist in the development of the arid region by irrigation 
 and to bring about the highest possible development of which 
 
 that region is capable by the application of right principles of de- 
 velopment. 
 
 I have not made any observations or study with respect to irri- 
 
THE STATE OF COLORADO ET AL. 
 
 1171 
 
 gation in foreign countries except through publications that I have 
 been able to obtain. I never have been abroad myself. I would 
 hardly be willing to admit that in Italy irrigation is developed to a 
 greater extent and that the use of waters may be more intelligently 
 applied than in this country. I think possibly that might be so 
 generally, but I think the science of irrigation is as highly devel- 
 oped in southern California to-day as anywhere in the world. I 
 don’t know of any district in any foreign country where they have 
 practiced irrigation for a number of years where they have over- 
 come this question of return water. I can’t say that I do. In cases 
 I think it is true that in those countries where irrigation has been 
 developed to a higher point than it has in this country they 
 
 4454 still have seepage or return waters. No, not in all places do 
 I think it possible that you can overcome the seepage or re- 
 turn waters and utilize all of them. It always depends not only on 
 the methods of cultivation and the amount of water applied but on 
 the nature of the soil. I think it is a fact that irrigation has de- 
 veloped along more intelligent lines in recent years in Colorado and 
 other irrigated countries than existed when irrigation was first 
 practiced and that the seepage and return water is greater as times 
 goes on than when it first commenced. That has been so up to the 
 
 present time and it will be so for a good many years. 
 
 4455 Well, I do not want to be understood as taking the ground 
 that the gradual elimination of return seepage is anything 
 
 that will come about very soon. I think it will be a good many 
 years in the future before it will come about, and then it would only 
 come about if it were possible for the upper user to have the abso- 
 lute right to the return seepage so as to stimulate them to adopt 
 every possible device in order to get the use of that water and keep it 
 from goingdown to somebody else. Yes, there is a great deal of seepage 
 from the main ditches and the laterals themselves if the soil it at all 
 porous. As to whether that seepage finds its way back to the stream, 
 that depends upon whether the ditch is near enough to it. Well, it 
 might be in the same water shed and still not get back. Of course 
 there is a limit to the distance. No, you could not overcome the seep- 
 ageunless you cemented both your main and lateral ditches. But I am 
 disposed to think that in the future, at least where water is very val- 
 uable, an uncemented ditch will be an unknown thing. We have 
 practically come to that in California. But about that mat- 
 
 4456 ter of return seepage, I believe the changed conditions which 
 I am talking about would probably be a great many years 
 
 hence, fifty or a hundred possibly, but in the consideration of the 
 question as to what the eventual condition is going to be, by con- 
 ceding that right to the upper State, I think that the water will 
 eventually become enormously valuable and they will find methods 
 to prevent the return seepage in years to come, but that it will come 
 in your day or mine I do not believe. 
 
ME Si 1 ATE OP KANSAS VS. 
 
 i m 
 
 Recross-examination on behalf of defendants. 
 
 By Mr. Ashbaugh: 
 
 4457 If the present methods of irrigation and the application of 
 water continues, I think the construction of reservoirs to con- 
 serve the flood flow so that it will be held back and carried through 
 canals and used for irrigation within a reasonable distance of the 
 river would increase the return seepage. In other words, under irri- 
 gation as practiced at present a larger area under irrigation will 
 produce more seepage and return waters than a smaller area, and 
 the fact that it is a fact is entirely in harmony with the idea lex- 
 pressed before, that in future years those conditions might be 
 changed and probably will be changed. The question of the value 
 of water in the West is going to be a very different problem when 
 we have one hundred and fifty or two hundred million people in 
 this country than it is to-day when we have only seventy-five or 
 eighty million. 
 
 4459 W. L. Jones, Washington, D. C. 
 
 Direct examination on behalf of intervenor. 
 
 By Mr. Campbell : 
 
 I reside at North Yakima, in the State of Washington. I am a 
 member of Congress from that State, just closing my third term. I 
 have resided in Washington since the spring of 1889. It is esti- 
 mated that sometoere about one hundred and twenty-five to one 
 hundred and thirty thousand acres of land have been reclaimed 
 from its arid state by irrigation in the eastern part of Wash- 
 
 4460 ington. A great many thousand acres more can be reclaimed 
 from its arid condition in eastern Washington by utilizing 
 
 the waters of the streams there and by storing the flood and other 
 waters. Without irrigation this land in its present condition is 
 practically worthless. There is some of it of course fit for grazing 
 to a certain extent in the spring, but that is sage-brush land. If 
 this land were reclaimed by irrigation it would be worth from thirty- 
 five to a hundred dollars and acre. As to the population that the 
 lands that are now arid would sustain if reclaimed, we usually con- 
 sider that if we could reclaim all the lands that it is possible to 
 reclaim at what would be considered a reasonable expense it would 
 support in that section a million people. The central portion of 
 Washington is practically an arid region. 
 
 4462 Our supreme court has held that the doctrine of riparian 
 rights applies in our State. We have not had a great deal of 
 trouble in the immediate vicinity of the arid belt in Washington as 
 yet, but if the doctrine were applied there, I think, in its extreme 
 sense, it would cause us a great deal of trouble. This doctrine with- 
 out some modification in the application of it would very materially 
 
the state of Colorado et al. 
 
 1173 
 
 retard development in the arid belt, I think, and would also 
 
 4463 affect present development very seriously. Of course some 
 rights have probably been acquired by prior appropriation, 
 
 but on several streams there if the doctrine of riparian rights were 
 enforced it would shut out a great deal of the present irrigation. 
 
 In respect to the future development of the arid portion of Wash- 
 ington, aside from taking the water out of the Columbia river, I 
 think it would affect it very seriously. So far as I know, this doc- 
 trine laid down by the supreme court has not been followed strictly. 
 Of course the same question came up in a case there from my vicin- 
 ity in which that doctrine was declared, and yet since the decision 
 was rendered nearly every year we have had plenty of water. 
 There has been plenty of snow in the mountains and they 
 
 4464 have not been troubled with a shortage, so there has not 
 been any particular trouble. There has not been any real 
 
 test of what would be the practical effect of that decision I have 
 spoken of. My judgment is that if it ever is enforced it will 
 seriously retard development. I don’t see how it could be other- 
 wise. 
 
 If the irrigated area should be confined to the lands adjacent to 
 the stream in the arid regions of Washington, other than on the 
 Columbia river, that is, the first and second 40’s, the effect would be 
 that there would practically be no development. 
 
 Cross-examination on behalf of complainant. 
 
 By Mr. Ashbaugh : 
 
 4465 The Yakima river rises in the Cascade mountains and flows 
 into the Columbia. The Columbia has one fork which rises 
 
 in Montana, and one comes down from British Columbia. If Brit- 
 ish Columbia should divert all of the water of that branch of the 
 Columbia river, I don’t know just what proportion of the 
 
 4466 water would be shut off. (Objection by defendants.) If all 
 of the water of the Columbia river rising either in Montana 
 
 or in British Columbia should be shut off at those lines there is no 
 doubt but there would be a very material diminution in the amount 
 of water. There is not to any considerable extent any irrigation 
 along that branch of the Columbia that rises in Montana below the 
 Montana line in the State of Washington. If the State of Montana 
 should claim and exercise the right to divert all of the water of this 
 branch of the Columbia they would not have any water for irriga- 
 tion ; but that section of Montana through which that branch of the 
 Columbia flows has very little irrigation on it. (Objection by de- 
 fendants.) 
 
 4467 The supreme court has decided the doctrine of riparian 
 rights to be in force in this State in the case of Benton vs. 
 
 Joncox. This is the first case in which that question was involved, 
 and it has been followed and applied since that time. When that 
 
1174 
 
 THE STATE OF KANSAS VS. 
 
 case was decided I think a majority of the judges were from eastern 
 Washington who decided that case. (Objection by defend- 
 
 4468 ants.) It is true that a great part of the valuable portion of 
 the State of Washington is on the west side of the Cascade 
 
 range, where the doctrine of riparian rights would be applicable, 
 although the most valuable part for agricultural purposes in on the 
 east side. It is largely timber on the west side. The commercial 
 cities are on the Sound there. The largest agricultural cities are on 
 the east side. In the eastern part of Washington we have some very 
 large wheat fields and raise a very fine quality of wheat as 
 
 4469 well as a fine quality of barley, and these are in regions where 
 crops are not raised by irrigation. It is in this region that 
 
 that case arose. (Objection by defendants.) I don’t think there the 
 doctrine of prior appropriation would affect that particularly. 
 
 Cross-examination on behalf of defendants. 
 
 By Mr. Hayt : 
 
 The average rainfall in the county in which I live is from ten to 
 twelve inches. At North Yakima I think it is only about six to 
 eight inches, and you go farther down, to Pasco, and I 
 4470 think it is still less. In the sections where we irrigate we 
 can raise scarcely anything without irrigation. Now, in 
 the sections where they don’t irrigate they raise, generally, 
 different crops from what they do in the irrigated sections. 
 For instance, in the eastern part of the State, in the wheat country, 
 they raise wheat. We raise but little wheat in the irrigated section 
 because we have to get crops that will be more productive, and we 
 raise different crops there. The irrigated section produces the most 
 in money. I know of families in and around North Yakima, for 
 instance a man and his wife — and I don’t remember now about the 
 children — they make a good living on five acres; and there are 
 many ten-acre farms there and many fifteen and twenty acre farms. 
 Where they raise alfalfa eighty acres is all that a man can take care 
 of, and that will support about any ordinary size family. The 
 tendency of irrigation is decidedly to reduce the ownership of land 
 to small tracts and to intensify the cultivation. 
 
 Recross-examination on behalf of complainant. 
 
 By Mr. Ashbaugh : 
 
 4471 I don’t know of any section in the State of Washington that. 
 
 is being developed and irrigated at the expense of any otUec 
 section. (Objection by defendants.) 
 
THE STATE OF COLORADO ET AL. 
 
 1175 
 
 44.73 Redirect examination on behalf of intervenor. 
 
 By Mr. Campbell : 
 
 The Washington legislature is now in session, and there is an 
 irrigation bill pending there. Just what its provisions are I don’t 
 know. It is for the purpose of getting the law in condition so that 
 the reclamation act can he enforced in that State. 
 
 Recross-examination on behalf of complainant. 
 
 By Mr. Ashbaugh : 
 
 The State of Washington has two different conditions naturally 
 and physically, caused by the range of mountains. One of them is 
 at the east, in which there is some arid land, and one at the west, 
 in which the lands are not arid. 
 
 4476 Theodore A. Bell, Washington, D. C. 
 
 Direct examination on behalf of intervenor. 
 
 By Mr. Campbell : 
 
 I reside in Napa, California, and am a delegate in Congress from 
 the 2nd district of that State, in the present House. I am a member 
 of the House Irrigation Committee and was appointed on that com- 
 mittee at the beginning of the 59th Congress. I was born in Cali- 
 fornia. My knowledge of California north of the Tehachepi, that 
 divides the State into two sections, is from personal observation a 
 good deal, but southern California I know most about from hear- 
 say, having visited there onty once or twice. 
 
 4477 About a million and a half acres, perhaps a little more, 
 have been reclaimed from their arid state by reason of irri- 
 gation in California. As to whether this million and a half acres 
 could have produced a crop by the rainfall we have out there, I 
 will say that California has a rainfall ranging from almost nothing 
 in the extreme south to a hundred inches on some parts of the coast 
 ranges, and we have three areas — arid, semi-arid and humid. They 
 irrigate in all three. In southern California it was so arid, that the 
 land was practically worthless without irrigation ; then as you go 
 farther north and get just above Tehachepi, in the San Joaquin 
 valley, you have there an arid condition that gradually goes into a 
 semi-arid, where they raise crops of wheat, barley, etc. ; and then pro- 
 gressing northward you find in the Sacramento valley no arid lands 
 at all. The rainfall, I suppose, runs from twenty to thirty inches 
 there, yet irrigation is increasing all the time, and its value has 
 been demonstrated even in the northern part of Sacramento county. 
 I should judge about one-third of the million and a half acres that 
 
1176 
 
 thf; static of Kansas vs. 
 
 have been reclaimed by irrigation are in the arid belt, and 
 
 4478 pretty nearly all the balance in the semi-arid belt. Irrigated 
 lands in the vicinity of Riverside, for instance, where there 
 
 is a population of 13,000, and an acreage of 10,000 acres supporting 
 a population of 13,000 people — the land there reaches its greatest 
 value, and I guess runs up to $1500 an acre ; but the average value 
 of our irrigated lands in California, I think, to be exact, is $89.14 
 an acre, taking the whole State. My judgment would be that 
 twelve or fifteen million acres can yet be reclaimed in California 
 provided that the flood waters which now go to waste could be util- 
 ized. That is a low estimate in comparison to what others have 
 made. Estimates have been made of our hundred million acres in 
 California that thirty million acres of it can be subjected to irriga- 
 tion ; but I think that is rather optimistic. I would rather say ten, 
 twelve or fifteen million. Fifteen million it seems to me would be 
 pretty high. I mean including the million and a half already 
 
 4479 reclaimed. In respect to the worth of that land at the 
 present time that has not been irrigated, there are pretty 
 
 nearly three million acres in the Sacramento valley that you might 
 class as semi-arid that is worth perhaps now $15 or $20 an acre. 
 With water upon them they would easily be worth $100 to $150 an 
 acre. The lands which can be reclaimed that I have spoken of I 
 should say when reclaimed by irrigation would be worth on 
 
 4480 an average $100 an acre, and the population would be in- 
 creased ten fold. 
 
 The strict application of the doctrine of riparian rights would 
 very materially affect the development of our State. As to the ex- 
 tent, that is pretty hard to answer exactly. The strict doctrine of 
 riparian rights has never been applied to California, though the 
 supreme court upheld that doctrine in the case of Lux vs. Haggin. 
 But the doctrine that now prevails there is a sort of a privileged 
 right of appropriation — privileged on the part of riparian owners — 
 and our supreme court has now said that every case must rest upon 
 its own bottom and be decided upon the particular circumstances 
 and conditions of that case. But there is a distinct line drawn be- 
 tween riparian ownership and the clean-cut right of appro- 
 
 4481 priation. We have our statute, of course, as is a matter of 
 common knowledge, permitting theappropriationof the waters 
 
 of running streams. Our supreme court, as between an owner on 
 the banks of a stream and the one who desires to divert the water 
 from that stream and take it away to lands not immediately adja- 
 cent to the stream, always decided, of course, in favor of the riparian 
 owner; but there is no confusion there as between the right to ap- 
 propriate the water and take it away from the lands of a stream — 
 lands upon the banks — and the riparian right; but when it comes 
 to a question as between owners on the same stream, then they have 
 gone as far as to say that each man is entitled to the flow of the 
 water and the use of the water for domestic purposes and for 
 “ reasonable ” irrigation, leaving it in every case to be determined. 
 
THE STATE OF COLORADO ET AL. 
 
 1177 
 
 what is reasonable irrigation; so that it is in very unsatisfactory 
 shape. The doctrine of riparian rights as laid down in the case of 
 Lux vs. Haggin of necessity has given way and did give way in that 
 case to the circumstances and conditions of the State generally, I 
 judge. I think the strict application of the doctrine laid down in 
 Lux vs. Haggin would have interfered with the future devel- 
 
 4482 opment of the State. Decidedly so. Because the strict ripa- 
 rian right does not look to the fullest use of the water for 
 
 beneficial purposes. It is irreconcilable with that theory. Should 
 the irrigated area be limited and confined to riparian lands, or in 
 other words to the first and second 40’s bordering on the stream, the 
 effect would be to reduce the opportunity for development from one 
 hundred to five hundred per cent. I should judge to a very small 
 percentage. As I understand the reclamation act, it is diametrically 
 opposed in theory and practice to riparian ownership, in this, that 
 the reclamation act looks to the very largest and most extensive use 
 of the waters for beneficial purposes while the riparian right is, you 
 might say, an aristocracy in water — it is a special privilege. 
 
 4483 Cross-examination on behalf pf complainant. 
 
 By Mr. Ashbaugh : 
 
 California more than any other State in the Union has a great 
 variety of conditions and interests, and perhaps more than any other 
 country in the world. I think it is’ true that these varied interests 
 are such that no one series of laws can be applied to all in our dif- 
 ferent physical conditions. There are parts of our State that may be 
 reasonably called arid, other parts semi-arid and other parts humid. 
 It is partially but not altogether true that that very sharp distinc- 
 tion, and our State having these different conditions, is the reason 
 for the construction given to our laws which adapt them to 
 
 4484 these different conditions. (Objection by defendants.) I am 
 not aware of anv case in California where the court has over- 
 ruled the doctrine laid down in ths case of Lux vs. Haggin. The 
 
 doctrine as there stated has been largely modified by 
 
 4485 subsequent decisions. (Objection by defendants.) The courts, 
 however, have decided the questions broad enough so that 
 
 they might take up each case and decide it according to its own pe- 
 culiar circumstances and conditions. The courts have recognized 
 the different physical conditions in different parts of our State and 
 have a desire, of course, to put the waters of streams to the 
 
 4486 largest beneficial use. I do not understand that the courts 
 have attempted to reconcile the interests of riparian owners 
 
 and the interests of appropriators who attempted to appropriate 
 water under the statutes of California. They have not gone so far 
 as that, but they have modified it so as to permit the largest possi- 
 ble use of the water among riparian owners themselves. I think 
 that is the practice of that State in a nutshell. 
 
1178 
 
 THE STATE OF KANSAS VS. 
 
 4488 The Colorado river rises in another State and flows into 
 California. It forms the lower boundary, and the waters of 
 that river are being used in California. The Klamath also rises in 
 another State, and there are a number of those streams that flow out 
 of the Sierra Nevadas that rise at the apex of the mountain range, 
 but I think that all of them rise in California. I think that the 
 streams going into Nevada rise in California. There is one river, 
 the Owens river, which rises in Nevada and flows into California. 
 
 Cross-examination on behalf of defendants. 
 
 By Mr. Hayt : 
 
 4489 This uncertainty with reference to the law as laid down by 
 our supreme court that counsel has alluded to to a consider- 
 able extent I think has had the effect of retarding the development 
 of California by irrigation. 
 
 The lands in our arid region without water at the present time 
 are worth nothing, and those same lands with a proper system of 
 irrigation and sufficient water to irrigate them would be worth from 
 $150 to $200 an acre. That would be in southern California, in the 
 semi-tropical country where they are now raising lemons, oranges, 
 and things of that character. Of course some of those orange lands 
 run as high as $1,000 an acre, but I should say generally 
 
 4490 $200 an acre for raising fruits. In the semi-arid region the 
 lands are worth, without irrigation, from $15 to $20 an acre, 
 
 and with irrigation, in my judgment, they would be worth $100 an 
 acre. In that portion of the State where crops are raised without 
 irrigation a fair average value of the land at the present time for 
 grain would be $40 an acre and for fruit from $75 to $350 or $400 an 
 acre. The lands irrigated in the State generally are more pro- 
 ductive than even in the most moist sections. The tendency of 
 irrigation is to reduce the number of acres held by one individual, 
 and it also has a tendency to induce a higher state of cultivation of 
 the soil. 
 
 4491 I live in the humid section of the State, about forty-five 
 miles north of San Francisco, and probably sixty to sixty-five 
 
 miles from Sacramento. 
 
 With irrigation we get a greater variety of crops and would be 
 able to get a crop at least once a year where now we have to alter- 
 nate and summer-fallow and are confined to grain raising, and that 
 is the reason that the lands in the semi-arid regions, instead of being 
 worth $20 an acre, would be worth something like $100. At 
 
 4492 Modesta, in Stanislaus county, the greater portion of the land 
 there they don’t attempt to irrigate at all, but with irrigation 
 
 it would make one crop certain each year and permit a diversifica- 
 tion of crops and more intensive farming, and for that reason laud 
 would increase in value, as has been fully demonstrated. 
 
THE STATE OF COLORADO ET AL. 
 
 1179 
 
 4493 Frank W. Mondell, Washington, D. C. 
 
 Direct examination on behalf of intervenor. 
 
 By Mr. Campbell : 
 
 I reside in Newcastle, Wyoming, and am a member of Congress 
 from that State, and am chairman of the irrigation committee of the 
 present lower house of congress. I have resided in Wyoming 
 
 4494 since 1887. I was first elected to Congress in 1894. I was a 
 member of the State senate for two years and mayor of my 
 
 town and president of the State senate. I am familiar with the 
 conditions prevailing in Wyoming. I have been around over the 
 State very generally on business and in campaigns. According to 
 the best of my information, there are now under irrigation in Wy- 
 oming about a million acres. When I went there in 1887 I* should 
 say there were about two hundred thousand acres. The average 
 value of these lands is about $25 an acre. From a rather careful 
 estimate made at various times, I am of the opinion that with the 
 unused waters of the streams in Wyoming and by impounding the 
 flood waters we will ultimately irrigate upwards of five million 
 acres — four million in addition to the lands already under 
 
 4495 irrigation. The greater portion of the land that is now not 
 in irrigation is practically valueless. I think there is very 
 
 little of it that is worth $1.25 an acre in its raw state. If it should 
 be reclaimed by using the unused waters of the streams and by using 
 the flood waters, in ten years after reclaiming it would be worth 
 on an average $40 an acre; and directly and indirectly two and a 
 half acres of irrigated land in Wyoming will support an in- 
 
 4496 habitant. I should say possibly sixty per cent, of the assessed 
 taxable value in Wyoming has been created and exists by 
 
 reason of irrigation. 
 
 The lands that have already been irrigated and reclaimed from 
 their arid state could not have been so reclaimed had the waters in 
 the streams there been allowed to run unobstructed and undimin- 
 ished. Should that doctrine be established now these lands which 
 have been reclaimed would revert to their arid state. About sixty- 
 five per cent, of our people in Wyoming now depend, directly 
 
 4497 and indirectly upon these irrigated lands. If we were not 
 allowed to use the waters of the streams for irrigation pur- 
 poses there would be practically no further agricultural develop- 
 ment. There could be no development except such as might come 
 from the mines. 
 
 If it should be held that the irrigated area in Wyoming must be 
 confined to lands adjacent to the stream, that is, the first and second 
 40’s, the effect would amount to nearly a total destruction of the 
 irrigated area and would curtail future development by reclamation 
 at least ninety-five per cent., I should say. 
 
1180 
 
 THE STATE OF KANSAS VS. 
 
 4498 The committee of which I am chairman in the House re- 
 ported the bill which is now known as the reclamation act. 
 
 I am familiar with its provisions and have made a study of it. I 
 was a member of the committee of seventeen that framed the bill 
 and was a member of the House committee that reported it, and 
 reported the bill to the House and managed it on the floor during 
 the discussion. 
 
 I know what is understood as the doctrine of riparian 
 
 4499 rights. In the discussion by the committee of seventeen I 
 think the members of the committee assumed that the doc- 
 trine of riparian rights would not and did not apply generally 
 to the territory. As I understand, the doctrine of riparian rights, 
 if rigidly enforced, would be fatal to irrigation to any extent. The 
 reclamation act could not be operative, I think, in a territory 
 where the doctrine of riparian rights exists and is in force and 
 effect. 
 
 Should it be held that the irrigated area must be confined to the 
 first and second 40’s bordering on a stream, I do not believe there is 
 a project in the United States that could be carried out under 
 
 4500 the reclamation act. I think that probably three million 
 acres of land may yet be reclaimed in Wyoming under the 
 
 provisions of the national reclamation law. 
 
 I am familiar with the provisions of the act of Congress known as 
 the Carey act, passed August 18, 1894. The establishment of the 
 doctrine of riparian rights would be fatal to the operation of that act 
 in Wyoming, and it would make impossible the development that 
 has already been made under the act, for so far as 1 know no ripa- 
 rian lands have ever been irrigated under the act. I know that 
 eighteen thousand acres have been reclaimed under the Carey act, 
 known as the Germania flats in Big Horn county; that under the 
 Cody canal in Big Horn county about 15,000 acres have been re- 
 claimed and irrigated under that act, and the canals cover 
 
 4501 probably 10,000 acres more that will be irrigated within a 
 year or two. None of the Germania lands are riparian lands, 
 
 none of them being within three miles of the stream from which the 
 water is taken — the Gray Bull, Of the Cody lands I should say that 
 five per cent, of them are within a mile of the stream from which 
 the water is taken — the Shoshone. There have also been irrigated 
 on the Big Horn in Big Horn county several thousand acres under 
 the Carey act. 
 
 The Oregon Basin enterprise, so-called, in Big Horn county, pro- 
 poses the irrigation of upwards of two hundred thousand acres of 
 non-riparian lands under that act. There are several other enter- 
 prises, — the Big Horn Count}' canal on the Big Horn river that pro- 
 poses the reclamation of twenty thousand acres, a large project oil 
 the upper Platte in the vicinity of Saratoga ; a project on the upper 
 Green known as the Boulder Lake project, and a number of other proj- 
 ects under construction ; also the Whalen Canon canal on the lower 
 Platte. There are a number of other projects that I do not now 
 
STATIC OF COLOkAbO ET At. 
 
 1181 
 
 have in mind. There is also a project on the Poudre river at 
 4502 the base of the Big Horn mountains. That has about seventy 
 thousand acres. In respect to the amount of money which 
 has been expended under the Carey act in Wyoming, the lands and 
 water rights have averaged in the vicinity of $16 an acre to the pur- 
 chaser. In some cases they have cost more than that. In addition 
 to that of course has been the expense to which the settlers have 
 gone in building laterals and in preparing their land for cultiva- 
 tion, which probably would be $5 an acre more. 
 
 All these enterprises I have spoken of are on tributaries of inter- 
 state streams. 
 
 The future development of Wyoming is dependent in a larger 
 measure upon irrigation or the taking of the waters of the streams 
 for the purpose of irrigating desert lands than upon all other 
 sources of development and growth. 
 
 Cross-examinatton on behalf of complainant. 
 
 By Mr. Ashbaugh : 
 
 4503 Before there was any irrigation in Wyoming, speaking of 
 the lands that have been irrigated, practically all of them, 
 
 or a very great proportion of them, produced nothing prior to rec- 
 lamation except a very sparse growth of grass, sage-brush, cactus, 
 etc., and quite a percentage of the lands that have been irrigated in 
 Wyoming produced no vegetation at all except a very thin, scat- 
 tered growth of what is known as salt sage. These lands prior to 
 irrigation were such as are generally denominated arid lands. In 
 places, particularly on the small streams, there are small tracts here 
 and there where the lands lie low, but slightly elevated above the 
 ordinary flow of the water, where there was a better growth of grass 
 than on the territory outside, generally. Bo far as agricult- 
 
 4504 ure was concerned, the aridity of the lands extended down 
 to the banks of the stream, and that is very generally true 
 
 of the lands in Wyoming that border the stream. 
 
 The Little Laramie rises in Colorado and flows into Wyoming, as 
 does the Big Laramie and various tributaries of the Platte. The 
 Platte river itself rises in Colorado, the North Platte flowing through 
 Wyoming and into Nebraska. 
 
 4505 In speaking of riparian lands I meant lands that were 
 near the banks of the river, regardless of their condition, 
 
 even though the river was flowing through a moderately deep canon 
 and they were not saturated and were not subject to a natural 
 growth of vegetation, and regardless of how deep below the surface 
 of the lands the body of the stream may flow. 
 
 4506 The committee of seventeen that framed the bill held 
 seventeen meetings, and we discussed practically every ques- 
 tion relating, directly or indirect!} 7 , to the question of irrigation, and 
 I recall one occasion when there was some considerable discussion 
 
1182 THE STATE OF KANSAS VS. 
 
 as to the doctrine of riparian rights and the abrogation of that by 
 certain States and the modification of it by others. 
 
 4407 Because of the physical conditions of Wyoming, I believe 
 it would not have been wise, and in fact would have been 
 fatal to our development, to have adopted the doctrine of riparian 
 rights. Following that up and knowing and understanding the 
 physical conditions and physical needs for the development of my 
 State, as a resp resen tative from Wyoming 1 assisted and did what I 
 could to establish the reclamation act known as the act of June 17, 
 1902. We had in mind the entire arid region in drawing the bill. 
 We were not establishing a law for any region not included in the 
 provisions of the bill, but were attempting to draft a bill that 
 would be applicable to the territory over which it extends, 
 
 4508 and that is the arid region of the United States, and a part 
 of it is called the semi-arid. As to the effect in fact upon the 
 
 irrigated districts of Wyoming if after the irrigation had been ap- 
 plied to Wyoming, Colorado should claim and exercise the right to 
 take all of the water of those streams at the State line between Colo- 
 rado and Wyoming and apply it to irrigation in the State of Colo- 
 rado, and there were no other waters returning to the stream either 
 by seepage or otherwise, then our prior appropriators would be 
 greatly injured and their property entirely destroyed or its value 
 greatly reduced. (Objection by defendants.) If it were pos- 
 
 4509 sible that the diversion of all the waters in Colorado were 
 carried on to an extent or in a manner that none of it would 
 return in seepage, then the loss to our appropriators would be 
 
 4510 very great. (Objection by defendants.) If all of such waters 
 were taken out in Colorado and none of it returned in any 
 
 way, their loss would necessarily be total. 
 
 I am acquainted with Sand creek, running in from Larimer 
 county in Colorado, into Albany county in Wyoming. My 
 
 4511 information concerning the alleged state of affairs as to the 
 conflict over that stream has been obtained somewhat from 
 
 newspapers and casual conversation. I know that there has been 
 some complaint on the part of settlers on Sand creek that they either 
 had been or were threatened with loss of water by threatened diver- 
 sions in Colorado. 
 
 4512 In respect to the preparation of the reclamation act and 
 as to the intention in framing and passing that act that one 
 
 State should have the right by virtue of her State sovereignty and 
 her constitution to take and appropriate for irrigation purposes all 
 of the waters that fall within her borders regardless of the prior con- 
 ditions of the people and of the settlements below the borders of that 
 State on streams flowing from the upper State into the 
 
 4513 lower State, I will say as a member of the committee that 
 framed the law that it was not my thought or intent that we 
 
 should by the passage of that legislation encourage that kind of 
 practice. If any State were to insist upon and uphold the diversion 
 of waters entirely regardless of prior appropriators in another State 
 
THIS STATE OF COLORADO ET AL. 
 
 1183 
 
 below, and that were carried out, it might entirely deprive settlers 
 in the lower State down the stream, under a Government project, of 
 their water, or even under a private project if the conditions 
 4514 were carried out in the upper State. (Objection bv defend- 
 ants.) If such a claim as that should be made and carried 
 out by the upper State without regard to prior appropriators in the 
 adjacent State farther down the stream, I should say it would have 
 the effect of contracting the reclamation service to the upper State, 
 and it would have that effect very largely in the States farthest 
 down on an inter-state stream. 
 
 4516 Practically, 1 have no knowledge as to return waters in the 
 Arkansas valley within the State of Colorado. 
 
 Cross-examination on behalf of defendants. 
 
 By Mr. Dawson : 
 
 4517 The enforcement of a doctrine which would hold that each 
 State was entitled to all of the water arising in it would not 
 
 practically work a destruction of the purposes of the reclamation 
 act, as it would not necessarily affect the State having the head- 
 waters of a stream. Taking a concrete illustration, if Colorado has 
 the headwaters of a given stream, the application of that doctrine 
 would not affect Colorado on that stream, and if Wyoming is below 
 Colorado on the same stream and that stream collected certain waters 
 within the State of Wyoming it would not affect the application of 
 that act to those waters and that stream in Wyoming, and if still 
 lower down the stream Nebraska had the same stream coursing 
 through it the act could be applied to the waters of that same stream 
 originating within the lines of Nebraska, if there were such 
 
 4518 waters in sufficient quantity. The reclamation act of course 
 cannot be carried out unless there is a considerable flow of 
 
 water, because under its provisions it cannot economically and rea- 
 sonably apply to small projects. It is true that in each of the three 
 States just named and in most of the Western States there are some 
 streams which originate in the different States. In Wyoming we 
 have streams originating in that State. The application of the doc- 
 trine that each State is entitled to the water originating within the 
 limits of the State would not affect those streams injuriously which 
 originate in the State of Wyoming. In other words, I think the 
 effect would be to limit the operation of the act rather than destroy 
 it, in each given State, to the waters originating in that State. If I 
 might use a concrete case as an illustration, the reclamation 
 
 4519 service is proposing a project on the North Platte for im- 
 pounding waters in what is known as the Pathfinder reser- 
 voir, and perhaps to reclaim lands both in Wyoming and Nebraska. 
 If it were possible to use all of those waters thus impounded, to- 
 gether with the present unappropriated flow of the river in Wyo- 
 ming before reaching the Nebraska line, and that were done, so far 
 as Nebraska is concerned it would amount to a repeal of the act, 
 
1184 
 
 THE STATE OF KANSAS VS. 
 
 virtually, on that particular stream. But it would not prevent the 
 operation of the act on some project in Nebraska where the waters 
 of a stream originate in Nebraska. It is true that practically all of 
 the mountain streams of any considerable size leaving the moun- 
 tains on the eastern slope at certain times carry such an excess 
 amount of flood waters as to make the use of all of that water 
 in the State in which the stream originates impossible or par- 
 tially impossible under the natural conditions without storage, 
 and I think it is probably true that with regard to some of the 
 larger streams proceeding from the eastern slope of the 
 
 4520 Rocky mountains that carry such an excessive amount of 
 flood water that it would be practically impossible to even store 
 
 all of that water within the limits uf the State within which the 
 stream originates. I think if the cost were not prohibitive it would 
 be possible to reservoir a great portion of the flood waters on many 
 of the streams, and I think that in many cases under present condi- 
 tions it would be unprofitable commercially to build works of suf- 
 ficient magnitude to capture the torrential floods that the larger 
 streams carry at times, but it is my opinion that so far as the streams 
 flowing eastward from the Rocky mountains are concerned, in the 
 course of time practically all of the flood flow will be controlled. I 
 think it is undoubtedly true that to capture all of the great floods 
 of those largest streams reservoirs will probably be necessary not 
 only near the headwaters of the stream in the State of its origin, but 
 in States lower down the stream to catch that which passes 
 
 4521 the first works. As conditions now exist on the larger 
 streams, proceeding from the eastern slope of the Rock}' 
 
 mountains, there are times when there is a great deal more water 
 going down the stream than is either utilized for direct irrigation or 
 captured for storage purposes, so that such excess waters which now 
 go down the stream and go to waste are waters that are in fact un- 
 appropriated for irrigation purposes, and an appropriation that is 
 prior in time is prior as a matter of fact, so that if there are waters 
 flowing down now in any stream in the arid region that have not 
 been impounded, whoever first impounds them has the prior right. 
 The condition is such now that if impounding works were built in 
 the down-stream States at this time there are excess unappropriated 
 waters that may be captured. 
 
 4522 The committee on the reclamation bill was an unofficial 
 committee consisting of one member from each of the arid 
 
 States and Territories, with the exception that Wyoming had two 
 members on the committee, Senator Warren being chairman. The 
 States represented were Arizona, California, Colorado, Idaho, Kansas, 
 Montana, Nebraska, Nevada, New Mexico, North Dakota, Oklahoma, 
 Oregon, South Dakota, Utah, Washington and Wyoming. After 
 the bill was actually introduced in the House the Committee on Ir- 
 rigation of Arid Land had charge of it and the representation on 
 that committee was : Thomas II. Tongue of Oregon ; John J. Jenkins 
 of Wisconsin ; George W. Ray of New York ; Win. A. Reeder of 
 
THE STATE OF COLORADO ET AL. 
 
 1185 
 
 Kansas, Frank W. Mondell of Wyoming; George Sutherland of 
 Utah and Charles Q. Tirrell of Massachusetts. 
 
 All of the committee of seventeen which drafted the bill as it was 
 finally presented agreed to it; that is, there were many sharp dif- 
 ferences of opinion on that committee, and on a good many points 
 we took a number of votes and there was a very great deal of dis- 
 cussion and consideration and reconsideration, and on some features 
 of the bill there were half a dozen different views taken at one time 
 and another, but the members of the committee finally all agreed to 
 support the measure so far as reporting it to the respective houses 
 was concerned. The bill was very considerably amended by the 
 committee of the House on Irrigation of Arid Lands. The bill passed 
 the Senate in the form in which it was reported from the committee 
 of seventeen without any amendments whatever. In this com- 
 mittee the bill was amended in a number of particulars. As 
 4523 I recall, some five or six amendments were made to it, and 
 the bill as finally amended and passed was not agreed to by 
 all of the committee of the House. A minority report was filed by 
 Mr. Rav of New York of the committee and signed bv Messrs. Ray 
 and Jenkins from New York and Wisconsin respectively. 
 
 We of the committee of seventeen understood that the doctrine of 
 riparian rights did not apply to the arid States in full force and 
 effect and as affecting those portions of certain States within which 
 the law would operate if at all in those States, notably the States of 
 Kansas and Nebraska. Some of the committee of the House on irri- 
 gation were representatives from the humid States. I think that 
 Mr. Ray, of the committee, from New York, and possibly Mr. Jen- 
 kins, from Wisconsin, based some of their objections to the bill 
 
 4525 on lack of knowledge and opposition to the general law of 
 diversion — that is, the doctrine of appropriation. A minority 
 
 report was filed by tho.se gentlemen, which I think is available. 
 (Objection by complainant.) 
 
 Up to the beginning of the present fiscal year the amount realized 
 under the reclamation act is a little less than twenty-four million 
 dollars. I don’t recall that in any discussion of the matter an esti- 
 mate was ever made of the amount which might ultimately be 
 realized from the sale of public lands in the States and Territories 
 to which it applied. It was impossible to make any kind of an esti- 
 mate, because it all depended upon the laws by which those lands 
 might be disposed of and the extent to which the Government 
 might dispose of them, and it is impossible to form an intelligent 
 opinion. It is true that building or construction has been com- 
 menced in a number of States on a number of projects under the 
 provisions of this act and that considerable money has been 
 
 4526 expended up to the present time. 
 
 First, I think the enforcement of the strict common law 
 doctrine of riparian rights would interfere with the operation of the 
 Carey act, because the enforcement of the strict doctrine would prac- 
 tically prohibit all reclamation by prohibiting all diversion and 
 75 — 7 
 
1186 
 
 THE STATE OP KANSAS VS. 
 
 thus making reclamation impossible; and further, speaking of the 
 projects under that particular act in our State, it has occurred that 
 in almost every instance they have been for the reclamation of non- 
 riparian lands — bench lands generally, some distance back from the 
 stream. The operation of the reclamation act and also of the 
 Carey act must presuppose the appropriation of water from running 
 streams either for direct application to the lands or for the 
 
 4527 storage thereof, and without this diversion both of these acts 
 would become practically inoperative. 
 
 My experience with return or seepage water is based upon obser- 
 vation, and in some instances rather careful observation, but not at all 
 upon measurements, and my observation has been that a very con- 
 siderable amount of the waters used in irrigation are returned to 
 the streams, the amount depending, of course, on many factors — the 
 amount of water used in irrigation per acre for a given unit, the 
 character of the soil, the distance of the land irrigated from the 
 stream, etc. Many things enter into the question of the amount of 
 seepage, of course the most important of which is the amount of 
 water originally put on the soil. But my personal observation is 
 that a much larger percentage of the water used in irrigation re- 
 turns to the stream than has generally been supposed by people who 
 have knowledge of irrigation. It is undoubtedly true that when- 
 ever any considerable tract of land is irrigated for a period of years 
 it will return a certain amount of seepage water. Whether it re- 
 turns to the stream from which it is taken depends upon whether it 
 is taken out of the drainage. But it will furnish a consider- 
 
 4528 able amount of water. I have never seen any system of irri- 
 gation so perfect that a considerable tract of land could be 
 
 irrigated for a period of years without furnishing seepage or return 
 waters. I cannot conceive of a system that would not furnish some 
 return waters. I think that the equalizing effect upon the flow of 
 streams in my State of the irrigation of large tracts of land border- 
 ing on the stream is very decided. I have in mind as an illustra- 
 tion a small stream about four miles from my own town, which is 
 Newcastle, Wyoming, a stream which I see very often. It is a stream 
 known as Stockade Beaver creek. I have known of the stream for 
 eighteen years. 1 have never made any measurements of it, so that 
 my statements with regard to its volumes are simply from observation 
 and reflection, but when I first saw the stream eighteen years ago there 
 were perhaps 250 or 300 acres of land — possibly 300 acres — irrigated 
 from it. The acreage irrigated gradually increased until about ten 
 years ago there began to be complaints of shortage of water, and at 
 that time possibly there were 450 acres irrigated from the stream, 
 and the general impression was that we had reached the limits of 
 irrigation from that stream. The lower ranch which it irrigated was 
 one of considerable size as ranches go. It had ten years ago 
 
 4529 perhaps 250 acres under irrigation and the stream below that 
 lower ranch was always dry during the irrigation season. 
 
 Irrigation has gone on until 1 imagine there are a thousand acres 
 
THE STATE OF COLORADO KT AL, 
 
 118? 
 
 irrigated from the stream, including this lower ranch, which was 
 supposed to be the limit. It is the lowest ranch down the stream 
 which has a perpetual water right, but some six or seven years ago 
 parties took up some lands below the lower ranch and applied for 
 water rights for flood waters, such waters as are available. It is not, 
 however, a flood stream in the usual acceptation of the word. It is 
 a stream of a pretty steady flow. In the last three or four years 
 some three or four hundred acres — *or possibly not over three hun- 
 dred and fifty acres — have been irrigated below the lower ranch — 
 the “ L. A. K.” ranch — and the people owning those ranches con- 
 template considerable further extension of the irrigated area, and 
 the water flow is sufficient to warrant them in their expectation of 
 being able to increase their irrigated area very largely ; so that that 
 stream irrigates now and furnishes water, ordinarily, which will be 
 used for irrigation in the near future, for sixteen or seventeen hun- 
 dred acres of land. Its original estimated capacity was consider- 
 ably less than one-half of that — nearer one-third. Tire increased 
 capacity is due partly to economy in use, but very largely to 
 
 4530 seepage and return waters. Some of those farms irrigate 
 early and late when the waters would not ordinarily be util- 
 ized at all otherwise. The stream is a perennial stream now ten 
 miles farther down its course than it was eighteen years ago when 
 there was less than one-fourth of the irrigation there is now. 
 
 The beginning of the irrigation season in Wyoming with us is a 
 time of high water, generally. Depending on the character of the 
 soil, of course, very largely, the water taken out of the streams at 
 times of high water and spread over a great deal of ground returns 
 through the soil to the stream when the natural flow is practically 
 at its minimum; but in the ordinary soils of our river valleys the 
 percolation is rather slow and my experience is that the return after 
 a long term of irrigation is quite continuous throughout the entire 
 year; and it is because of these things that I have said and have 
 given by way of illustration that I am led to believe that the use of 
 water along the stream for irrigation tends to equalize the flow of 
 the stream, reducing the maximum and increasing the minimum. 
 
 Recross-examination on behalf of complainant. 
 
 By Mr. Ashbaugh : 
 
 4531 The reclamation act was passed June 17, 1902, which was 
 some three months after the Supreme Court of the United 
 
 States overruled a demurrer of Colorado in this present case. 
 
 There is unquestionably a great loss of water in irrigation by ab- 
 sorption in plant life and by evaporation. I do not pretend to say 
 that you can increase the annual flow of a stream by taking water 
 out of it; but irrigation takes water from a stream oftentimes during 
 flood periods. Whatever seepage there may be returns gradually, 
 and the return in many instances is the greatest in times of 
 
 4532 low water, so that there is an equalization of tiie flow. But 
 
1188 
 
 TFTE STATE OF KANSAS VS. 
 
 in this estimate the evaporation and absorption by plant life 
 
 4533 must be taken into consideration. The evaporation is con- 
 siderable under any circumstances. 
 
 If all the flow of a stream were taken in successive ditches, each 
 in turn taking the seepage as well, of course all the water left for 
 the flow of the stream below the lowest headgate would be 
 
 4534 simply the return water from the last ditch. Well, if it is a 
 fact that the waters of the Arkansas are all taken out in 
 
 eastern Colorado continuously, the amount of water which would 
 reach the adjacent territory below would necessarily be the amount 
 of seepage water returned from not only the last ditch but the 
 various ditches, because while our knowledge with regard to these 
 matters is possibly not very profound or thorough, the general im- 
 pression is that underground waters, particularly on streams like 
 the Arkansas, flow for a considerable distance and that the seepage 
 from a certain irrigated area would not necessarily reach the river 
 immediately adjacent to that area. 
 
 Q. If the testimony in this case shows that the waters from each 
 of the ditches going down strearti in succession returns to the river 
 above the headgates of the next lower ditch, and if there are half a 
 dozen of these ditches, and they do take all of the water during the 
 irrigating season, would it not be true that all the water that could 
 come back into the stream as return waters and flow on down 
 through the State of Kansas would be the return water from the 
 last ditch? (Objection by defendants.) 
 
 A. Well, assuming that all those facts were proven, my experience 
 would be — but that condition, however, would not he possible — but 
 assuming they were proven, that state of facts or alleged facts would 
 inevitably lead to the conclusion that that would be all the water 
 that would be going into Kansas. 
 
 Recross-examination on behalf of defendants. 
 
 By Mr. Dawson: 
 
 Q. If however, the evidence in the case does show that the flow of 
 the water in the Arkansas river in western Kansas during the dr} T 
 period of the year has been constant]}' increasing since the irriga- 
 tion of lands in eastern Colorado along the river, would that more 
 nearly accord with your experience on that character of stream 
 where irrigation is practiced? 
 
 A. That is what I would expect to find, from my experience on 
 irrigated streams. 
 
 Recross-examination on behalf of complainant. 
 
 By Mr. Ashbaugh : 
 
 4535 I have no personal knowledge as to whether the Arkansas 
 river is a dry stream during the greater part of the year dur- 
 ing recent years through the western portion of Kansas. 
 
THE STATE OF COLORADO ET AL. 
 
 1189 
 
 Redirect examination on behalf of intervenor. 
 
 By Mr. Campbell : 
 
 4536 The eastern limit of the arid region is a moveable standard 
 depending upon the precipitation of anyone particular year, 
 
 but about the 98th to the 100th meridian is assumed, I believe, gen- 
 erally, to be its eastern limit, and it was this entire region we had 
 in mind when the reclamation act was passed, and its purpose anu 
 object were to develop the entire arid region irrespective of any 
 State or Territory. 
 
 The Pathfinder reclamation project on the North Platte in Wyo- 
 ming that I testified in regard to is situated on the North 
 
 4537 Platte river which flows into Nebraska. The eastern part of 
 Nebraska is humid and they raise crops without irrigation. 
 
 The Pathfinder project is intended for the irrigation of lands in 
 Nebraska and Wyoming, and has been proceeded with by the 
 reclamation service to a point where it is their opinion that 
 
 4538 they will probably irrigate more lands in Nebraska than in 
 Wyoming, or at least as large an acreage. The irrigation of 
 
 the lands irrigable from this reservoir in Wyoming, the sale of 
 water rights at a price which could be obtained under present 
 conditions, would not warrant nor justify the construction of works 
 under a law which requires that the outlay be reimbursed and re- 
 turned to the fund; and if the law of riparian rights were in full 
 force and effect in western Nebraska it would be impossible to di- 
 vert the river or utilize the waters impounded in this reservoir in 
 that region; and that being true the construction of the enterprise 
 as a whole could not be accomplished. 
 
 Since I went to Wyoming in 1887 the population has increased 
 and the property value also. I think that probably two-thirds to 
 three quarters of our increase in population during that time has 
 been due directly and indirectly to irrigation. I think the State has 
 more than doubled in population since I went there. I should sav 
 that the increase in property values during that time has 
 
 4539 nearly trebled. In other words, the population has increased 
 and property has been created and the value has increased 
 
 in proportion as the irrigated area has increased since I went there. 
 Of course there have been other factors. 
 
 Recross-examination on behalf of complainant. 
 
 By Mr. Ashbaugh : 
 
 I understand that is true that there were vested rights down in 
 the eastern part of Nebraska and property built up there before this 
 reclamation act was passed. There were towns there of some size, 
 and there are some smaller towns. I don’t mean to say and don’t 
 wish such an inference to be drawn from my testimony that in pass- 
 ing this reclamation act we were going to irrigate that western arid 
 land regardless of the question as to whether it might destroy all 
 
1190 
 
 THE STATE OF KANSAS VS. 
 
 that prior civilization and property in the eastern part of Nebraska 
 and on the lower part of an inter state stream. (Objection 
 
 4540 by defendants.) The act is to be carried out when the rights 
 of all parties are properly considered. 
 
 4541 Fred T. Dubois, Washington, D. C. 
 
 Direct examination on behalf of intervenor. 
 
 By Mr. Campbell: 
 
 I have resided in Blackfoot, Idaho, between twenty-four and twenty- 
 five years. lam United States Senator from that State. Ihaveserved 
 ten years on the 4th of March next. Before that I was a Delegate 
 in Congress and was United States marshal/ for four years. I am 
 generally familiar with the conditions prevailing in that State. 
 
 4542 About two-thirds of Idaho is in what is known as the arid 
 belt. There is north Idaho and south Idaho. The north 
 
 part is about one-third of the State, and in that section of the 
 country the} 7 raise splendid crops without the aid of irrigation. In 
 many sections of this arid belt in Idaho crops cannot be raised with- 
 out the aid of irrigation. I would qualify that a little by saving 
 that there is what is called dry farming in some sections of the State, 
 but it is very precarious and cannot be depended on at all. They 
 only raise half a crop one year and not half a crop at all for several 
 years. In the arid portion of the State, except in the middle center 
 of south Idaho, where there are large lava beds, the lands are suffi- 
 ciently rich to raise a crop provided you can get water on it. About 
 a million acres of arid land I should say have already been re- 
 claimed in the arid portion of Idaho. It is worth at least $40 an 
 acre. 
 
 4543 I think the assessed value of real estate, outside of any im- 
 provements at all, in 1904, was twenty-six or twenty-six and 
 
 a half million dollars, and two-thirds of that I should say was pro- 
 duced by irrigation. In this answer I confine it to the real estate 
 alone. Of this million acres of land which has been so reclaimed 
 by irrigation I should say three-fourths of it if not nine-tenths 
 
 4544 has been reclaimed since I went to Idaho. It was worth 
 nothing before it was rec-laimed. Its value now runs all the 
 
 way from $25 to $1,000 an acre, so when Isay that $40 an acre 
 is an average price I am putting it pretty low. Lands in northern 
 Idaho could not be used as fruit lands except through irrigation, 
 and they are worth $1,000 an acre. The fruit lands around Boise 
 are the greatest in the United States, not excepting California, and 
 are worth anywhere from $100 to $400 an acre. 
 
 No, all the lands which can be irrigated have not been reclaimed. 
 We are just starting in. By using the unused waters and impound- 
 ing and storing the flood waters I would say that we could add 
 
 4545 four and a half million acres to what we have. This land is 
 not worth anything now. In some years and some places it 
 
THE STATE OF COLORADO ET AL. 
 
 1191 
 
 is good for grazing. If these lands I have spoken of were irrigated 
 and intensively farmed I would sav they would be worth $10 
 
 4546 an acre on the average. The Government now has under 
 process of reclamation land near Minidoka, in Idaho, some- 
 
 like one or two hundred thousand acres, and it will cost the Govern- 
 ment $26.50 an acre to reclaim it, At Twin Falls, Idaho, a private 
 company has gone in under the Carey act to reclaim some 280,000 
 acres of land, for which they charge $25.50 an acre, and all of it is 
 being taken. The additional property which can be created by re- 
 claiming arid lands, independently of the lands themselves, will be 
 almost as much or as much as the value of the lands themselves. 
 It would create all ihe value of town property and manufacturing 
 enterprises and all sorts of things. My colleague in the House 
 
 4547 when I was a member of that body, Mr. Wilson, reclaimed a 
 raw piece of land, I think sixty-four acres. He sold it a couple 
 
 of years ago for $24,000. 
 
 The whole country from Boise down to Payette has been reclaimed 
 during my time. There were no fruit lands at all when I went over- 
 land the first time in a stage from Blackfoot to Boise; now there is 
 one succession of fine fruit lands. The instance I have referred to 
 in respect to Mr. Wilson has been repeated throughout Idaho. 
 Before going to Idaho I lived in Illinois. The land in Idaho 
 which is irrigated is much richer than the Illinois land. It 
 
 4548 raises more of everything per acre — more in quantity and 
 larger kernels. The average yield of wheat in Idaho as 
 
 compared with Illinois I should say is double per acre, and this 
 rule holds good with reference to other crops which are peculiar to 
 the soil of our State. 
 
 Yes, I think there is no question but that the same amount of 
 irrigated lands in Idaho will support a denser population than in 
 Illinois. 
 
 If it were established that the water in the streams of our State 
 should be obliged to flow down the stream undiminished in quantity 
 and unaffected in quality except as it may be diminished in quantity 
 or affected in quality by reasonable use above for manufacturing or 
 domestic purposes, the land already reclaimed could not have been 
 reclaimed ; and if such a doctrine were to apply I can’t see 
 
 4549 how any of south Idaho could be developed at all. We are 
 dependent absolutely on irrigation. Unless we could take 
 
 the water out of the streams and use it on the land there could not 
 be any more development in South Idaho. 
 
 Should it be established that the irrigated area in Idaho should 
 be confined to the lands bordering upon or adjacent to the stream, 
 say within three-quarters of a mile thereof, it would be almost as 
 detrimental as a total denial of the use of the water. In respect to 
 the lands already irrigated, there are not a thousand acres of land 
 within three-quarters of a mile of the stream from which they 
 
 4550 are irrigated. Of course that is just a guess; but it is a small 
 amount comparatively. 
 
1192 
 
 THE STATE OF KANSAS VS. 
 
 Yes, I am familiar with the act known as the Carey act, passed by 
 Congress August 18, 1894. I had the honor of helping to prepare it. 
 I was chairman of the public lands committee, I think, at that time. 
 Judge Cary and I are the ones who took the most interest in it, and 
 I am quite familiar with it. Yes, the State of Idaho accepted the 
 provisions of that act very quickly. If I am not mistaken, we were 
 the first State to do so, unless it was Wyoming. Under the provisions 
 ofthat act there has been expended and is in process of being expended 
 I should think in the neighborhood of four million dollars. I 
 think there has been taken up under that act between four 
 
 4551 and five hundred thousand acres. 
 
 The doctrine of riparian rights, if it were enforced in Idaho, 
 would destroy the effectiveness of the Carey act, practically. There 
 are two of these Carey act projects in Idaho, which are small, that 
 might be operated, but none of them which get their water from 
 Snake river would be worth anything at all. You couldn’t do any- 
 thing with them. Such a doctrine would destroy the lands already 
 irrigated. They could not get the water supply. 
 
 Yes, I was a Senator from Idaho when the reclamation act of 1902 
 was passed. I had a good deal to do with that act also. I was on 
 the committee of seventeen and presided over most of the meetings 
 of the committee. This act was passed for the entire arid and semi- 
 arid region. Should the doctrine of riparian rights be enforced in 
 Idaho it would reduce the amount of money which could be 
 
 4552 put into that reclamation fund by at least two-thirds. It 
 would stop the taking of any land in south Idaho. You can- 
 not impound sufficient water to irrigate successfully without a 
 stream, of course, that is, any very large amount. 
 
 There is a necessity for the cultivation of forestry in Idaho. I 
 don’t think it could be successively cultivated there without irriga- 
 tion. I think it would be impossible. Of course when I speak of 
 Idaho I am speaking of south Idaho. 
 
 Cross-examination on behalf of complainant. 
 
 By Mr. Ashbaugh : 
 
 4553 About two-thirds of Idaho is arid and about one-third is 
 humid. In the northern one-third crops can be raised with- 
 out irrigation. I think crops have been raised without irri- 
 
 4554 gation since about 1863. In northern Idaho the agricultural 
 pursuits were merely an incident. The people went there 
 
 first for mining purposes. Our irrigation was begun before the 
 Carey act of 1894. The Care} 7 act did not help us a great deal. 
 
 4555 The Snake river rises in Wyoming, and where it crosses 
 the State line into Idaho it is a very considerable stream. 
 
 Bear river rises in Idaho and flows out of the State into the great 
 Salt Lake. 
 
 The Kootenai river, in the north, runs from British Columbia 
 into Idaho and out again. 
 
THE STATE OF COI-ORADO ET AL. 
 
 1193 
 
 There is no irrigation in Idaho along the Snake river near 
 4556 the Wyoming line. The waters of Snake river have their 
 source in Wyoming and irrigate the lands in south Idaho. 
 I think there are no large tributaries within the Wyoming line and 
 the upper portion of the irrigated section in Idaho. The waters of 
 the Snake river that we use for irrigation in Idaho rise in Wyo- 
 ming, until }mu get down to the town of Blackfoot, which is a hun- 
 dred miles before the irrigated country commences. If the 
 . 4557 course of the Snake river in Wyoming could be changed and 
 the waters of the Snake river should be diverted in Wyoming 
 it would be exceedingly damaging to south Idaho. (Objection by 
 defendants.) Roughly speaking, I should say that three-fourths of 
 the irrigation in south Idaho is dependent on the Snake river. 
 
 4558 Oh yes, it would very materially interfere with irrigation in 
 Idaho to have all the waters of the Snake river diverted in 
 
 Wyoming. There is no irrigation on the Snake river in Wyoming 
 at all. If the State of Wyoming, by virtue of her sovereignty and 
 her constitution and laws should claim and exercise the right to 
 divert all of the waters of the Snake river within her borders, allow- 
 ing none to flow down into Idaho, it would almost totally destroy 
 the irrigation interests in Idaho. (Objection by defendants.) Of 
 course as a physical fact they could not divert the waters of 
 
 4559 the Snake river in Wyoming. I do not think it was contem- 
 plated by the reclamation act that the crest State should have 
 
 the right to subsequently take all the waters of an inter-state stream 
 to the damage and detriment of prior property interests in the lower 
 State. (Objection by defendants.) It was not thought by those who 
 framed the reclamation act that the crest State should have the 
 right by virtue of her State sovereignty to own and control all of 
 the waters of an inter-state stream that rises within her borders to 
 the detriment and injury of prior appropriators or prior prop- 
 
 4560 ertv rights along the streams below those crest States. (Ob- 
 jection by defendants.) That was not the intent of the act. 
 
 (Objection by defendants.) I am very firmly convinced that the 
 flood waters of those streams can by proper provisions be very largely 
 conserved to the general benefit of the people of those regions, and 
 this could be done so as to preserve the property interests or 
 
 4561 prior and vested rights along the streams below. There is no 
 question but what the framers of the reclamation act ex- 
 pected and intended by the act. to enhance the value of property 
 held by individual owners by the building of these reservoirs, and 
 we thought that this could be done so as to benefit all and practi- 
 cally injure none. 
 
 Cross-examination on behalf of defendants. 
 
 By Mr. Dawson : 
 
 The amount of precipitation varies greatly in Idaho between the 
 northern third of the State and the southern two-thirds. There is 
 
1194 
 
 THE STATE OF KANSAS VS. 
 
 a border land 1 bet ween the arid and humid regions of the State 
 which may sometimes grow crops without irrigation but only can 
 be made to grow them surely and , profitably by irrigation. It is 
 true that the experience of farmers in Idaho has shown that the 
 use of water for irrigation can with advantage be pushed farther 
 and farther north. There are lands around Lewiston, Idaho, for in- 
 stance, where they will grow crops five or six years in succession 
 without a failure, and very good crops, and then they will 
 
 4562 have a failure, maybe, for a year or two. They raise grain 
 on those lands, and they are worth from $30 to $40 an acre. 
 
 Put water on the same lands and they are worth $1,000 an acre, be- 
 cause they make fruit lands out of them then. And the putting of 
 the water on the lands not only directly enhances the value of them 
 but tends to divide the holdings into smaller tracts and bringabout 
 intensive farming. Five acres of irrigated land around Lewiston is 
 plenty to support a family, and they can lay by money. They 
 do it. 
 
 There are large streams that commence to empty into the Snake 
 river about Blackloot, and the supply of water is very great from 
 that point. Within a comparatively short time the far greater por- 
 tion of the irrigated lands was above Blackfoot, but now there is in 
 process of construction the Minidoka project of the Government, the 
 Twin Falls project under the Carey act, and other projects of that 
 sort. The Government enterprises are large. But even at the pres- 
 ent time the great bulk of the irrigated land is between Blackfoot 
 and Wyoming. When the projects are completed it will still al- 
 ways be in favor of the country between Blackfoot and Wyo- 
 
 4563 ming because they have withdrawn agreatdealof their land 
 between those pointsand theGovernmentintends to build great 
 
 reservoirs. It won’t come from the Snake river proper, but it will 
 come from these great reservoirs. So that that part of the country is 
 bound to grow as fast as all of the balance, 1 should think. They 
 are not doing any considerable amount of irrigation from the Snake 
 river, and they can’t. I went over that personally and carefully. I 
 was in hopes they could, and wanted to find where we could divert 
 water. It looked to me to be a shame to take all of the water in 
 Wyoming and use it in Wyoming. But there was no place it could 
 be done. And they can’t use it in Wyoming to the injury of Idaho. 
 Even if they could have found some way to take some of it out and 
 put it on the lands adjacent to the streams, we would not be 
 
 4564 afraid of that. 
 
 My observation has taught me that the irrigation of large 
 tracts of land within the water shed of a stream tends to equalize 
 the flow of the stream farther down, making the maximum flow 
 less and the minimum flow or dry time flow greater, and that fact 
 in itself in a large measure would protect us from any injurious 
 effects from irrigation in Wyoming, even if they could use the 
 water. Now, after they take out all of this water from Snake river 
 proper — Snake river not being fed by other streams — by the time 
 
THE STATE OF COLORADO ET AL. 
 
 1J95 
 
 we get to Blackfoot the water is pretty low in Snake river in the 
 middle of the irrigating season, but down below there there is plenty 
 of water used, farther down on the Snake river. I should think 
 that where streams were made practically dry by the subtraction of 
 water for irrigation that farther down would show a good flow of 
 water, this must, on account of physical conditions, be ac- 
 
 4565 counted for by the return or seepage waters from the lands 
 irrigated. 
 
 By the passage of the reclamation act we had in view that we 
 would furnish more water, so that if a man had a farm of four or 
 five hundred acres and only water enough for a hundred, by being 
 economical he could get more water. We could supplement his sup- 
 ply and make it certain. 
 
 The irrigation of land in large quantities in itself is a system of 
 reservoiring water. The irrigating season is such that a great deal 
 of irrigating is done all along the mountain streams with which I 
 am familiar at a time of year when there is a flush flow of water in the 
 stream, and after the water is taken from the stream and placed upon 
 the land at a time of flush flow the return of that water through the 
 soil to the stream is slow as compared with the surface water, and 
 the result from that is not so appreciable in the effect upon the 
 stream at a later period in the irrigation season when the 
 
 4566 stream is low in its natural flow. The waters which have 
 been spread over the land during the early season when the 
 
 river is at a flush flow have something to do with the maintenance 
 of the flow at a later period in the season when the stream naturally 
 would be low. I didn’t understand that. That is the only source 
 of supply, I think, for the stream, apparently. It comes after the 
 snows are melted and the natural supply is expected and the stream 
 is replenished, I should think, from water that lias been put upon 
 the ground. I know that from my personal observation of irrigated 
 countries. Yes, I should say so. I should say I know it from per- 
 sonal observation. 
 
 It takes a much less number of acres of irrigated land in Idaho 
 to maintain a family than in the unirrigated lands of the agricult- 
 ural States. It is hard to put that in some proportion, because 
 when you come to these extremely rich fruit lands of Idaho, for 
 instance, } r ou can hardly make any comparison, and you take the 
 ordinary farm lands, where they raise wheat and hav and ordinary 
 farm products, I should think one acre would support as many as 
 two acres would at least in the other States. And that is 
 
 4567 excluding the very high production in fruit lands and truck 
 gardens. In cantaloupes, you know, we raise as high a qual- 
 ity in Idaho as they do in Colorado. 
 
 I rather account for the great difference in precipitation over the 
 northern one-third of Idaho as compared with the southern two- 
 thirds from the fact that they are closer to the Pacific ocean and the 
 warm streams of the Pacific ocean. They are clear on the other side 
 of the mountain ranges, and I think the warm streams of the Pacific 
 
1196 
 
 THE STATE OF KANSAS VS. 
 
 have quite a good deal to do wilh it. The northern one-third is also 
 a heavily timbered country. The southern part is very sparsely tim- 
 bered, except in spots. In Payette and Boise counties there is some 
 fine merchantable timber, but generally in south Idaho the timber 
 is not very fine, while in north Idaho it is the finest in the United 
 States. 
 
 Recross-examination on behalf of complainant. 
 
 By Mr. Ashbaugh : 
 
 4568 In speaking of the fact that we had no fear of the waters 
 being taken by the people of Wyoming, I will say that our 
 
 relations with the people of Wyoming and Colorado have always 
 been very harmonious and pleasant, and always will be. (Objec- 
 tion by defendants.) The water of the Snake river is taken out and 
 spread on the lands for irrigation purposes all at the same time, and it 
 does lower the river to do that. The water is supplied below by 
 tributaries and the seepage of the water back. 
 
 I did not understand that I was answering a question put by 
 counsel for defendants that in shaping this reclamation act we 
 thought that by taking all of the water above the people’s 
 
 4569 interests would be protected in the States below solely by re- 
 turn waters. (Objection by defendants.) I didn’t under- 
 stand I was answering any such question. Such a reliance would 
 certainly not be a full protection to the people below if the people 
 in the upper State took all of the waters of those inter-state streams. 
 (Objection by defendants.) If any set of people took all of the water 
 before it came to a second set of people, the second set would not be 
 benefited very much. 
 
 Redirect examination on behalf of intervenor. 
 
 By Mr. Campbell : 
 
 4570 There is one project under the reclamation act of 1902 in 
 the southern part of Idaho. Contracts have been made in- 
 volving an expenditure of $26,000. This is called the Minidoka 
 project, along the Snake river. There is another which contem- 
 plates an expenditure of $600,000. As to the number of acres this 
 project could reclaim, I cannot tell. I can only say that it is con- 
 templated it will cost $26.50 per acre. They divide the costs per 
 acre and charge $26.50 per acre. 
 
 4571 Joskph M. Dixon, Washington, D. C. 
 
 Direct examination on behalf of intervenor. 
 
 By Mr. Campbell : 
 
 I reside at Missoula, Montana. I am a member of Congress from 
 tiiat State. 1 have been reelected to the 59th Congress. I have 
 
 n 
 
THE STATE OF COLORADO KT AL. 
 
 119V 
 
 lived in Montana for fourteen years, in Missoula. I am an 
 
 4572 attorney. I am very well acquainted with the conditions 
 prevailing in Montana, and have been over every county in 
 
 the State. 
 
 The rainfall in Montana is not sufficient to raise a crop without irri- 
 gation. The numberof irrigated acres in 1889 in Montana was951,154. 
 I think at this time it would be considerably in excess of one million 
 acres. We do not assess our mines in Montana, which is in 
 
 4573 realit}' one or our principal sources of wealth. We only assess 
 the output of the mines. The assessed valuation of the State, 
 
 exclusive of mines, for 1902, was as follows: Real estate $80,451,577. 
 This does not include railroad assessment. It includes houses and 
 lots in cities and towns, however. Over one-half the assessed val- 
 uation is based on irrigation. The figures I have just given do not 
 include the valuation of personal property in the State, only real 
 estate. Yes, there are other lands in Montana that can be added to 
 this irrigated area. I am told by engineers it is possible to irrigate 
 eight million acres additional in that State; in other words, eight 
 times as much as are now being irrigated. From my observation 
 in Montana I think the judgment of these engineers in this 
 
 4574 respect is correct. The ordinary unirrigated lands in Mon- 
 tana at this time I would say on a fair valuation would not 
 
 exceed $1.25 an acre. In regard to the worth of these lands in ten 
 years after they are irrigated, I would say that I personally I know a 
 tract of three thousand acres which was put under ditch this last 
 year which is selling on the market at $35 an acre after water has 
 been placed upon it, without any improvements whatever. 
 4775 The tendency is to increase the value of irrigated lands in 
 Montana. I think if these eight million acres were reclaimed 
 it would support a million people directly and indirectly. There 
 has been considerable development along irrigation lines in Mon- 
 tana since I went there fourteen years ago. Without any statistics 
 to go by and based upon my personal observation, I should say we 
 are irrigating now three times as much as we were when I went 
 there. We are adding to the irrigated area every year. The popu- 
 lation is increasing every year indirect ratio to the amount of irri- 
 gated lands. The population of Montana has trebled since I went 
 there. 
 
 4576 The development in Montana which has already been made 
 could not have been made if the doctrine of riparian rights 
 had been in force, except as to a very narrow margin immediately 
 along the banks of the stream by the riparian owners. As to the 
 effect upon future development, it would absolutely prohibit any 
 further development except as to possible new mineral discoveries. 
 If the irrigated area were confined to the lands within one-half or 
 three-quarters of a mile from the banks of the stream it would put 
 a complete stop to any further development. As to present develop- 
 ment, should the doctrineof riparian rights be strictly enforced it 
 would destroy three-quarters of the farming lands of the State. 
 
1198 
 
 THE STATE OF KANSAS VS. 
 
 It would reduce the present population of the State one-half, in my 
 judgment, as it would leave us purely a stock raising country. 
 
 The State of Montana has accepted the provisions of the act of 
 Congress known as the Carey act. Not much development 
 
 4577 has been done under it so far. 
 
 I am familiar with the reclamation act. When I said a 
 few moments ago that eight million acres of land could be added to 
 the irrigated area in Montana I had reference to what could be done 
 under the reclamation act of 1902. Some land could be irrigated 
 by private enterprise, but not a great amount. The enforcement of 
 the doctrine of riparian rights, as I understand it, would nullify the 
 operation of the reclamation act. 
 
 Should it be established that the irrigated area must be confined 
 to lands within half or three-quarters of a mile of the stream, this 
 doctrine would practically nullify the provision of the reclamation 
 act. 
 
 4578 Yes, I think fifty per cent, of the present development in 
 Montana depends upon irrigation, and practically all of the 
 
 future development. We raise wheat, oats, barley, rye, potatoes and 
 the root crops. My experience has been that irrigation has very 
 largely increased the amount of crops per acre in the West as com- 
 pared with farming in the Mississippi valley. I know that our aver- 
 ago per acre of grain crops is about double on the irrigated lands 
 in my State as compared with the farming lands in the Mississippi 
 valley. I had occasion to take up this matter and investigate it. 
 
 There are four or five Indian reservations in Montana, and 
 
 4579 the Indians thereon are dependent upon the irrigation of 
 lands for their support, and upon stock raising. If the In- 
 dians were forbidden to use the waters of the streams for irrigation 
 upon these reservations, nowhere except on a part of the Flathead 
 
 reservation in western Montana could they develop crops. 
 
 4580 There is a necessity for the cultivation of forestry in a por- 
 tion of tiie State where timber does not exist — on the eastern 
 
 slope, from the crest of the Rocky mountains to the Dakota line. 
 Forestry could not be successfully cultivated without the aid of 
 irrigation in Montana. The rainfall there on the eastern slope of 
 the Rockies, which covers about two thirds of the area of the State, 
 is about thirty inches, and I think about twenty inches on the west 
 side of the mountains. On the east side it comes mostly in May and 
 June. From June on d it ring the period of crop growing there is 
 practically no rainfall, and at the time we need rainfall for crop 
 purposes we have very little. 
 
 4581 Cross-examination on behalf of complainant. 
 
 By Mr. Ashbaugh : 
 
 The streams flowing through Montana mostly rise within our own 
 territory, except on the southern boundary of the State. Some of 
 them rise in Wyoming. The Milk river rises in Montana, flows 
 
THE STATE OF COLORADO ET AL. 
 
 1199 
 
 into Canada and then back into Montana. The Kootenai, in western 
 Montana, rises in British Columbia. The irrigation along the Milk 
 river in northern Montana comes from the Milk river. There is 
 considerable irrigation in southern Montana along the Big Horn 
 and Clarke’s fork, which rise in Wyoming in the Crow Indian reser- 
 vation, and the Crow Indians under Government supervision have 
 expended about $600,000 in the digging of irrigation ditches 
 
 4582 on the Big Horn, which rises in Wyoming. If Wyoming 
 should claim the right and exercise that right to take all of 
 
 the waters that flow in the streams that rise in Wyoming and then 
 subsequently flow into Montana and divert those waters in the State 
 of Wyoming, it would paralyze the irrigation on those streams in 
 the State of Montana. It would put a stop to it. (Objection by de- 
 fendants.) There is a little irrigation in Montana on the Milk river 
 before it goes into Canada, and after it comes back from Canada 
 there is considerable. There is a large Mormon colony that went 
 into Alberta some years ago and settled that portion of the 
 
 4583 country through which the Milk river runs, on the Canadian 
 side. If the citizens and residents of Canada should take all 
 
 the water of the Milk river while in the territory of Canada it would 
 be absolutely fatal to the further development of irrigation upon the 
 Milk river in Montana after it returns to Montana. (Objection by 
 defendants.) In fact the members of Congress from Montana have 
 had this matter up with the Secretary of State and are trying to arrive 
 at some agreement with the Canadian government at this time. There 
 is a large irrigation project embracing, as I now remember, about 
 400,000 acres of land along the Milk river, which has been held in 
 abeyance on account of the complication over the waters of the Milk 
 river being threatened bv the Canadian settlers on the Canadian 
 side, and this controversy is pending at this time between the British 
 government and the United States Government. There has been a 
 protest made on the part of the citizens of Montana against the tak- 
 ing of the flow of the stream in Canada to the detriment of citizens 
 who have made prior settlements in the State of Montana. The 
 State Department has taken the matter up. The larger part of the 
 water has been appropriated on the American side prior to 
 
 4584 the settlements in Canada. If the State of Montana should 
 appropriate and take for irrigation all of the waters that rise 
 
 in Montana and flow into the Dakotas in the Missouri and Yellow- 
 stone, on the Montana side, and use them there, the people of North 
 Dakota, of course, would have no river when it got down into the 
 Dakota territory. (Objection by defendants.) This would depreci- 
 ate their property and their interests. In saying that I was in favor 
 of a large and beneficial use of the water in Montana for irrigation 
 I do not wish to be understood that I was in favor of such use as 
 would destroy prior civilization in other and lower States. 
 
 4585 (Objection by defendants.) In carrying out the projects in 
 process of development under the reclamation act and the 
 
 reclamation service, we would have to recognize the prior right of 
 
1200 
 
 THE STATE OF KANSAS VS. 
 
 the appi’opriator in the State lower down the stream. That 
 
 4586 would be the equitable method. So taking all of the water 
 of those streams in Montana would affect power rights and 
 
 the rights of navigation in North and South Dakota ; and I should 
 think to some extent the river courses have some effect upon the 
 humidity of the atmosphere. (Objection by defendants.) In Mon- 
 tana the irrigation that has been done in eastern Montana along 
 the river courses or the rivers that flow into Dakota has not yet di- 
 minished to any appreciable extent the waters of those rivers. 
 
 4587 (Objection by defendants.) Yes, it might be carried to such 
 an extent as to appreciably diminish them, and we hope some 
 
 time to practically dry up the Yellowstone and Missouri. The con- 
 ditions are sucli that an extensive system of irrigation can be car- 
 ried on. Yes, and in doing so we might affect the business interests 
 and property interests of the lower States. I think it is the grand 
 scheme of the Irrigation Bureau people to divert the Missouri, which 
 includes the irrigation of both Montana and North Dakota, along 
 the Missouri in North Dakota. I think that it would not be equit- 
 able in carrying out these systems of irrigation under the reclama- 
 tion act for one State, by virtue of its sovereignty and constitution, 
 to control all of the waters that rise in that State regardless of any 
 injurious effect it may have on prior settlements, prior property in- 
 terests and prior vested rights in the lower States. 
 
 4588 Cross-examination on behalf of defendants. 
 
 By Mr. Miller: 
 
 I know of numerous small streams that have been completely 
 emptied by irrigation in the State of Montana, and I believe that 
 the application of water to irrigation in the arid State of Montana 
 or elsewhere can be applied to the extent of emptying the stream if 
 it is beneficial to the agricultural interests of the country; and in 
 referring to the equitable doctrine concerning injury to prior rights, 
 including cities and industries and such, I referred to those that are 
 dependent upon the existence of a prior appropriation of water by 
 some diversion. None of our appropriations have interfered or will 
 interfere with navigation, and they cannot do so. Of course we rec- 
 ognize under our irrigation laws the rights of prior appro- 
 
 4589 priators for power purposes, the same as we do for the pur- 
 pose of irrigation. 
 
 My observation and experience with reference to the effect upon 
 the supply or constancy of the supply of water in the stream by 
 taking the water out and spreading it over the land is that it makes 
 the stream more permanent and the flow more even, usually, lower 
 down the stream. Of course of the smaller streams it practically 
 dries them up where the irrigation is done, but it seeps back lower 
 down the valley usually. 
 
 The application of water to irrigation in Montana requires the 
 diversion of water, and the conducting of it some distance back from 
 
THE STATE OF COLORADO ET AL. 
 
 1201 
 
 the stream, farther than would obtain under the riparian doctrine, 
 and it is so applied. If it were not possible to use the water at re- 
 mote places from the stream it would result in the destruction of the 
 greater part of the agricultural lands and their profitableness. 
 
 The chief irrigated districts of Montana are along the valley of 
 the Yellowstone in eastern Montana. At the city of Billings in 
 particular, I should think within twenty-five miles of that city, there 
 is 100,000 acres under irrigation ; along the Clarke’s Fork valley in 
 Carbon county, below Red Lodge, there are several thousand acres 
 under irrigation from that stream; on the headwaters of the 
 
 4590 Gallatin river in the Gallatin valley, around Bozeman, there is 
 an area of country twenty miles square; on the west side of the 
 
 mountains, in the Bitter Root valley, near the city of Missoula, there is 
 a valley approximately sixty miles long and averaging six miles in 
 width and nearly all under irrigation from the tributaries of the Bitter 
 Root and from the main river itself; in northern Montana, alone the 
 Milk ri ver, near Chinook and Harlem, there is a large area of country 
 under irrigation. There is, near Helena, considerable country under 
 irrigation from the headwaters of the Missouri. These are the prin- 
 cipal centers of irrigation in Montana at this time. 
 
 Irrigated lands with a permanent, absolute water supply will 
 readily sell for $35 an acre in the raw, uncultivated state. From 
 that price up to $100 an acre with improvements. And this is due 
 to the application of water to the lands for agricultural purposes. 
 That same land before being irrigated would not be worth 
 
 4591 over one or two dollars an acre. 
 
 The experience has been that after some years of irrigation 
 it does not take so much water per acre to irrigate the same land. 
 It is true that there is a constant return of water along the the 
 stream which can be applied farther down to the irrigation of land. 
 Of course it largely diminishes, but the seepage from the irrigation 
 farms, some of it gets back into the stream, and that that is taken 
 out is again applied. Of course the greater part of it evaporates 
 through the irrigation of the land. Some of it seeps back to bed 
 rock and finds its way back. That depends a good deal on the con- 
 dition of the land and the geological formation of the bed rock of 
 the country. Some of the feeders of the Milk river are in 
 
 4592 Canada. There is no navigation on the Missouri river in 
 Montana at this time. The boats used to run to Fort Benton, 
 
 but they only ran during the flood water of the summer months. 
 The boats ran up to Benton until about 1882, until the Northern 
 Pacific railroad was built there, when navigation stopped. There 
 are no boats at the present time, I think, on the Missouri river in 
 Montana. I think there is very little navigation on the Missouri 
 river, even through the Dakotas. 
 
 76 — 7 
 
1202 
 
 TtTtC STATE OE EANSAS VS. 
 
 Recross-examination on behalf of complainant. 
 
 By Mr. Ashbaugh : 
 
 This navigation through the Dakotas on the Missouri river has 
 stopped because it was only carried on for two or three or four 
 months in high water anyway. It was done under a great disad- 
 vantage, and the building of the trans-continental lines of railroad 
 put a stop to it. 
 
 Redirect examination on behalf of intervenor. 
 
 By Mr. Campbell : 
 
 4593 Of course it would not be practicable to dry up the Yellow- 
 stone and Missouri rivers. When I made that statement I 
 
 was speaking more in generalities. Oh no, it would not be possible 
 to use the waters of Montana in either of these streams so that they 
 would not be coming down in the channels. There would some be 
 left in the streams by reason of the seepage from the little tributa- 
 ries along the banks, and the natural drainage of the country. 
 Nearly all of the ranchers through the northern part of the State 
 are constructing small reservoirs and small irrigation enterprises on 
 their own farms. The lands themselves act as a sort of natural reser- 
 voir when irrigated. They act as a sponge to some extent. Yes, 
 the returning seepage waters are increasing year by year, and there 
 is a more intelligent application of the waters for irrigation 
 
 4594 being made from year to year. The seepage increases as long 
 as the country is irrigated. The more intelligent application 
 
 of the waters to lands for irrigation purposes the greater the increase 
 in the return seepage. The building of reservoirs tends to make the 
 flow more continuous. I know of one stream personally in the Bitter 
 Root country where they have a reservoir at the head of it. I 
 think it usually went dry in the early part of August. The build- 
 ing of the reservoir lets some of the water down practically in Sep- 
 tember now. It is a big sponge that it drips through. 
 
 Recross-examination on behalf of complai-ant. 
 
 By Mr. Ashbaugh : 
 
 The Milk river is a hundred yards or more across the flow of the 
 water in that stream. 
 
 Recross-examination on behalf of defendants. 
 
 By Mr. Miller : 
 
 The diversion of water for placer mining and for the concentra- 
 tion mills is absolutely necessary. 
 

 
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