Pierce Butler

“ The burden on Connecticut to sustain the allegations on which it seeks to prevent Massachusetts from making the proposed diversions is much greater than that generally required to be borne by one seeking an injunction in a suit between private parties. North Dakota v. Minnesota, 263 U.S. 365, 374, 44 S.C.t. 138, 68 L. Ed. 342. There has been brought forward no adequate reason for disturbing the master's findings of fact. They are amply sustained by the evidence and are adopted by the Court. ”

“ The State of Connecticut brought this suit against the Commonwealth of Massachusetts to enjoin her from diverting waters from the watershed of the Connecticut river to provide water for Boston and neighboring cities and towns. ”

“ The annual flow of the Connecticut at the Massachusetts-Connecticut boundary is about 17,000 cubic feet per second, approximately 11,000 million gallons a day. The watershed above that boundary is 9,915 square miles. The drainage of the Ware at the point of diversion on that river is 98 square miles and that of the Swift at the point of diversion is 186 square miles. The diversion permitted by the Secretary will furnish about 191 million gallons per day. ”

“ Dredging is required every year to maintain a channel of 10 feet over numerous bars below Hartford. Navigation is difficult when the depth falls below 10 feet. There is no difficulty when there is 12 or even 11 feet. The required release of water from the Swift river reservoir during periods of low water will somewhat benefit navigation. ”

“ It involves no diversion from streams other than the Ware and Swift. Massachusetts declares that she intends to and must obey these findings of the War Department. Her statements before the master and here clearly negative any threat, intention or purpose to make any diversion of water in excess of that specified or otherwise than as set forth in the determinations of the Was Department. Injunction issues to prevent existing or presently threatened injuries. One will not be granted against something merely feared as liable to occur at some indefinite time in the future. ”

“ The determination of the relative rights of contending States in respect of the use of streams flowing through them does not depend upon the same considerations and is not governed by the same rules of law that are applied in such States for the solution of similar questions of private right. Kansas v. Colorado, 185 U.S. 125, 146, 22 S.C.t. 552, 46 L. Ed. 838. And, while the municipal law relating to like questions between individuals is to be taken into account, it is not to be deemed to have controlling weight. As was shown in Kansas v. Colorado, 206 U.S. 46, 100, 27 S.C.t. ”

“ Colorado the former used to prevent a diversion of the waters of the Laramie river which rises in Colorado and flows into Wyoming. Both States are in the arid region and apply the doctrine of appropriation. Wyoming objected on the ground that the diversion was to another watershed. ”

“ The necessary treatment of waters so polluted involves several processes storage for 30 to 90 days in a large reservoir, aeration, filtration, chlorination. These introduce a human element subject to weaknesses and failures of human nature. ”

“ At medium stages the diversion is less and at very low stages the flow is increased. The diversion will not perceptibly or materially interfere with navigation.
The height of floods will be lessened from one to six inches. Because of the diversion, small pieces of hay land will fail to receive flood waters. It is impossible to determine from the evidence to what extent that will occur. Te l essening of spring floods will have its advantages and disadvantages; it will reduce some damages and increase others. The damage to the hay land is not shown to be of serious magnitude ”

“ There is shown one possible development of power. It is at King's Island in Connecticut where 4,000 horse power is now produced. The owner has been authorized by the Federal Power Commission to build a higher dam to develop approximately 50,000 horse power. ”