State of Nebraska v. State of Wyoming et al. 325 US 589 (1945) 325 US 589

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equitable share except as measured by diversions 'out of priority' and uncertainty as to the extent of her injury consequent upon the alleged violation of her equitable rights, except as measured by the dollar value assigned to the water lost to her through such diversions. If to sustain her burden of proof Nebraska must establish not only violations of [325 U.S. 589, 663] her priorities or infringement otherwise on her equitable share by the other States, but also that as a result she has suffered injury of great magnitude in the broad sense of serious damage to her agriculture or industries or observable adverse effects upon her general economy, prosperity or population, then her proof has failed, for there is no clear evidence of any of these things.' (Italics in Master's report.) Further the Master finds: 'Another factor favoring Nebraska is that there will commonly be accidental water in substantial quantities passing the state line above that allocated to the State. Even during the dry cycle and with no restriction on Wyoming uses, the usable water passing Tri -State Dam averaged in the May- September period 81,700 acre feet. More than half of this flow, however, occurred in May and June with comparatively little in August and September. The quantity is perhaps too uncertain to be considered of great importance. It is a minor factor in the balancing of equities between the States.' Thus it is apparent that of the very natural flow of water with which the Master is dealing some of it went to waste in the area he considered critical. In other words, there was more water for Nebraska than she turned to beneficial use even in the drought years. As respects both defendants the decree makes a provisions adjustment based upon drought conditions, with the understanding that if conditions change, by reason of events not now envisaged, the defendants may again come to this court for another provisional arrangement which shall stand until some party to the decree thinks that a further revision should be made. Thus three states, with respect to their quasisovereign rights, will be in tutelage to this court henceforth. Such controversies between states are not easily put to repose. Even when judicial enforcement of rights is required, the attempt finally to adjudicate them often proves abortive. Our reports afford evidence of this fact. Kan- [325 U.S. 589, 664] sas and Colorado came here twice, at the instance of Kansas, in a dispute over the flow of the Arkansas River. 2 In a case presenting, on the whole, less difficulty than the present one this court entered a decree June 5, 1922,3 only to find it necessary to revise it on October 9, 1922.4 But the controversy would not down. The parties came back here on three occasions because of mis- understandings and disagreements with respect to the effect of our decree. 5 The controversy with respect to the diversion of the waters of Lake Michigan seemed to require a decree conditioned upon, and containing provisions with respect to, future conduct. The difficulty of administering that decree is evidenced by the repeated appearance of the parties in this court. 6 Experience teaches the wisdom of the rule we have so often announced, that, in such cases, the complaining state must show actual or immediately threatened damage of substantial magnitude to move this court to grant relief, and that, until such showing is made, the court should not interfere. The Court, as I think, now departs from this course. The bill should be dismissed. Mr. Justice FRANKFURTER and Mr. Justice RUTLEDGE join in this opinion. DECREE OF OCTOBER 8, 1945. See 66 S.Ct. 1. Footnotes [ Footnote 1 ] The waters of the South Platte and the Laramie were previously apportioned -the former between Colorado and Nebraska by compact (44 Stat. 195), the latter between Colorado and Wyoming by decree. Wyoming v. Colorado, 259 U.S. 496 , 42 S.Ct. 594. Those apportionments are in no way affected by the decree in this case. [ Footnote 2 ] Approximate length of the North Platte: