556
THE GREEN BAG
than fanning could successfully be carried on in the early days. Then only the extreme eastern portion of the state was subject to cultivation, the western part being all arid lands. Therefore, the court is of the opinion that if the ariable dis trict gradually extends westward from the Mis souri river with cultivation, it is not altogether unreasonable to expect that as the arid lands of Colorado are irrigated and become from year to year covered with vegetation, there will move eastward from Colorado an extension of the area of arable lands until, between the Missouri river and the mountains of Colorado, there shall be no land which is not as fully subject to cultivation as lands elsewhere in the country. The court presents tables by which it is shown that since the commencement of irrigation in Colorado, the population and the value of the products raised in the counties subject to irrigation have vastly increased, and that there has been a very small, if any, diminution of the value of the products raised in the western counties of Kansas. There fore, the court holds that Kansas is not at this time entitled to relief and hence dismisses the bill without prejudice to the right of Kansas to insti tute proceedings, whenever it shall appear that, through a material increase in the depletion of the waters of the Arkansas by Colorado, the sub stantial interests of Kansas are being injured to the extent of destroying the equitable apportion ment of benefits between the two states resulting from the flow of the river. WITNESSES. (Experts — Additional Compen sation.) Mo. App.—The right of a physician called into a case as an expert to additional compensa tion is often insisted upon and sometimes ques tioned. In Burnett v. Freeman, 103 S. W. 121, numerous authorities are collated on this propo sition. Among the cases upholding the right of a physician to extra compensation for expert testimony and his right to refuse to testify unless paid such extra compensation are cited: Buchman v. State, 59 Ind. 1, 26 Am. Rep. 75; Dills v.
State, 59 Ind. 15; People v. Montgomery, 13 Abb. Prac. (N. S. N. Y.) 207; In the Matter of Roelker, 1 Spr. 276, Fed. Cas. No. 11, 995; Webb v. Page, 1 Car. & K. 23. And among text writers affirming such right: 1 Taylor's Prin. of Med. Jurisprud ence, 19; 2 Phillips, Ev. 828; 1 Redfield, Wills, JS4. I5S. and note; 1 Wharton, Ev. §§ 380, 456. Among those entertaining the opposite view: Ex parte Dement, 53 Ala. 389; 25 Am. Rep. 611; Dixon v. People, 168 Ill. 189, 48 N. E. 108, 39 L. R. A. 116; North Chicago St. R. Co. v. Zeiger, 182 Ill. 9, 54 N. E. 1006, 74 Am. St. Rep. 157; Commissioners v. Lee, 3 Colo. App. 177, 32 Pac. 841; Flinn v. Prairie County, 60 Ark. 204, 29 S. W. 459; 27 L. R. A. 669, 46 Am. St. Rep. 168. These are supported by later editions of Greenleaf's Evidence, vol. 1, § 310, and by 3 Wigmore, Ev. § 2203. After a thorough discussion of the question the" court comes to the conclusion that an expert is not entitled to additional compensation, and in the course of its reasoning the court says: "If it were known that the free services (save ordinary witness fee) of the most eminent profes sional men of the country could be compelled at the instance of any litigant, might he not be required to devote a great part, or all, of his time in attendance upon courts or in giving his deposi tion, for the purpose of answering hypothetical questions on suppositional facts? It is sufficient to call for grave consideration when a rule is asked to be enforced which could lead to such results. On the other hand, all must concede that the physician, surgeon, or lawyer, is not entitled to any more consideration than an expert in any other calling. A farmer, a mechanic, a merchant, and he who follows most any avoca tion, may be qualified to testify as an expert in cases which call for the peculiar knowledge which he possesses, and which he has spent his time and money in acquiring. If either of these could demand compensation (more than an ordinary witness fee) the administration of the law would undergo a radical change."
