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<br />I <br />I <br />I <br />I <br />I <br />I <br />I <br />I <br />I <br />I <br />I <br />I <br />I <br />I <br />I <br />I <br />I <br />I <br />I <br /> <br />8 <br /> <br />Colorado's situation as a headwaters state, constantly under attack in the <br />courts by downstream states. For him, an interstate compact was the <br />equivalent of an international treaty which would avoid the pain and <br />discomfort of a long drawn out "war" in the Supreme Court. While Colorado <br />and the other sovereign states in the upper basin of the Colorado River had <br />every legal right to unlimited use of the water emanating from within the <br />states' territory, the consideration of comity would free Colorado from <br />litigation with its neighbors by providing these neighbors with an equitable <br />distribution of water permanently apportioned in an interstate compact. Just as <br />the principle of proprietary ownership by upper basin states or nations needed <br />to be replaced by the principle of comity, so, too, the doctrines of prior <br />appropriation and foreign servitudes by lower basin states or nations had to be <br />replaced by the principle of equitable apportionment. <br />Equitable apportionment, as Carpenter understood it, was not a legally <br />precise method of water distribution. Rather it was a general policy of <br />cooperation and compromise, designed to avoid costly litigation and to <br />establish harmony between two or more sovereign states. A compact on the <br />Colorado River based on equitable apportionment would have to assure the <br />lower basin states some benefits from the stream, "while at the same time <br />preserving to the [s]tate or [s]tates of origin, in so far as possible, their <br />sovereign rights of use and consumption, according to their future conditions <br />and necessities, and the exercise of eminent domain within their respective <br />territories free from servitudes beyond their control." A student of the 1907 <br />Kansas v. Colorado decision, Carpenter affirmed the views of Justice David J <br />Brewer that either the Supreme Court or a compact commission would have to <br />make an "equitable apportionment of the benefits between. . . states resulting <br />from the flow of the river.,,14 Such a determination would have to be based on <br />