was 2,399,400 in 1917, the minimum was 382,200 in 1934. But a critical condition arose in 1931 with the
<br />advent of the dry cycle. The flow for each of the years between 1931 and 194 as compared with the mean
<br />of the flow for the 37 year period ending in 1940 was as follows: 193155 per cent 1932 116 per cent 1933
<br />89 per cent 1934 30 per cent 1935 54 per cent 1936 81 per cent 1937 87 per cent 1938 103 per cent 1939 54
<br />per cent 1940 44 per cent [325 U.S. 589, 599] Since 1930 only one year equalled the mean of the 1904 to
<br />1930 period. Previous droughts had not exceeded two or three years. The present cycle has persisted for 13
<br />years.
<br />The commencement of this dry cycle plus the initiation of the Kendrick project precipitated the present
<br />controversy. Nebraska rests here case essentially on evidence of shortage and of misappropriation of water
<br />by the upper States since 1930 and of threats of more serious shortage and diversions in the future.
<br />II.
<br />The equitable apportionment which Nebraska seeks is based on the principle of priority of appropriation
<br />applied interstate. Colorado and Wyoming have the rule of priority of appropriation as distinguished from
<br />the rule of riparian rights. Colo. Constitution, Art. XVI, Secs. 5, 6; Farmers' Highline Canal & Reservoir
<br />Co. v. Southworth, 13 Colo. 111, 21 P. 1028, 4 L.R.A. 767; Sternberger v. Seaton Co., 45 Colo. 401, 102 P.
<br />168; Wyo. Constitution, Art. VIII, Sec, 3; Wyo.Rev.Stat.1931, 122 -401, 122- 418, 122 -419, Moyer v.
<br />Preston, 6 Wyo. 308, 44 P. 845, 71 Am.St.Rep. 914. And see the discussion of the problem in State of
<br />Wyoming v. Colorado, 259 U.S. 419, 459, 42 S.Ct. 552, 556. Nebraska on the other hand was originally a
<br />riparian doctrine State. See Meng v. Coffee, 67 Neb. 500, 93 N.W. 713, 60 L.R.A. 910, 108 Am.St.Rep.
<br />697. But when the more and sections of the State were settled and the need for irrigation increased,
<br />legislation was enacted adopting the appropriation principle. See Neb.L. 1889, ch. 68; L.1895, ch. 69. That
<br />principle was recognized in the constitution which Nebraska adopted in 1920. See Article XV, Secs. 4, 5,
<br />and 6. The adoption of the rule of appropriation did not extinguish riparian rights which had previously
<br />vested. See Clark v. Cambridge & A.I . & I. Co., 45 Neb. 798, 64 N.W. 239; Crawford Co. v. Hathaway, 60
<br />Neb. 754, 84 N.W. 271; Id., 61 Neb. 317, 85 N.W. 303; Id., 67 Neb. 325, 93 N.W. 781, 60 L.R.A. 889,108
<br />Am.St.Rep. 647; Osterman v. Central [325 U.S. 589, 600] Nebraska P.P. & I. District, 131 Neb. 356, 268
<br />N.W. 334. But riparian rights may be condemned in favor of appropriators; and violation of riparian rights
<br />by appropriators will not be enjoined, only compensation or damages being awarded. Cline v. Stock, 71
<br />Neb. 70, 98 N.W. 454, 102 Am. St.Rep. 265; McCook Irrigation & Water Power Co. v. Crews, 70 Neb.
<br />115, 102 N.W. 249. In that sense riparian rights are considered inferior to rights of appropriators. More
<br />important, the rights asserted by Nebraska in this suit are based wholly on appropriations which have been
<br />obtained and recognized under Nebraska law. The appropriation system is dominant in the regions of
<br />Nebraska which are involved in the present litigation. Hence we, like t e Special Master, treat the case as
<br />one involving appropriation rights not only in Colorado and Wyoming but in Nebraska as well.
<br />North Park. There are at present in the North Park area in Colorado ( Jackson County) 131,800 acres
<br />irrigated. The climate is arid. The sole industry is cattle raising, the only crops being native hay and
<br />pasturage. The growing season is short. While the diversions are high per acre (about 4 1/2 acre feet) the
<br />return flows are large, making the average consumptive use8 rate only 74 acre foot per acre. The 131,800
<br />acres of irrigated land consume 98,572 acre feet annually, including reservoir evaporation. Exportations
<br />from the basin are expected to average 6,000 acre feet, making the total annual depletion 104,540 acre feet.
<br />Though Colorado claimed that an additional 100,000 acres in North Park was susceptible of irrigation, the
<br />Special Master found that there are only about 34,000 acres of additional land that could be brought under
<br />irrigation; 3 0,3 90 of those acres are irrigable from constructed ditch systems having water rights. Those
<br />projects, however, are not completed; they are indeed projects for the indefinite future. In addition to these
<br />[325 U.S. 589, 601] projects in North Park, Colorado also has proposed that large quantities of water from
<br />the river be exported from the basin into other rivers.
<br />There have been out -of- priority diversions in Colorado and Wyoming above Pathfinder in relation to the
<br />priorities and needs of Nebraska users. Their full extent is not known. But as respects Pathfinder, the
<br />Special Master estimated that Colorado appropriators junior to Pathfinder consume about 30,000 acre feet a
<br />year. Since Pathfinder after 1930 has never been filled and has always been in need of water for storage,
<br />those Colorado junior diversions may be said to have violated the Pathfinder priority. The claims of
<br />Colorado to additional demands were construed by the Special Master as a threat of further depletion of the
<br />river within North Park. He found that there was no surplus in the supply and that any material increase in
<br />diversions in Colorado would be in violation of established priorities, notably Pathfinder.
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