The foundations of the doctrines as to the rights in water gained by priority of appropriation, contrary to the rights of riparian owners at common law, were laid in the necessities of the placer-miners on the public domain. The public lands and streams were alike the property of the United States Government, and in the absence of a grant or license from the government, neither could be held by any person to the exclusion of another, except by some recognized "custom" or local usage. At an early date, however, the custom was established that priority of possession gave priority of right, both of land and water, as long as claimant made continuous use of the same for some beneficial purpose; and this custom the state and territorial courts at an early date recognized as giving a valid right to the appropriator for any beneficial use as against every one else but the United States. Schilling et al. vs. Rominger, 4 Colo., 100. Bear River Co. vs. N. Y. Min. Co., 8 Cal., 327. The United States statutes, which recognize the various inchoate rights in land, under the various forms of mining locations, preëmption claims, etc., were passed at an early date, and are familiar to all. In July, 1866, Congress passed an act expressly recognizing the right of preëmption of water in the natural streams and lakes of the public domain. U. S. Rev. Stat., 2339. Vested rights-Right of way.] Whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws and decisions of the courts, the possessors and owners of said vested rights shall be maintained and protected in the same, and the right of way for the construction of ditches and canals for the purposes herein specified is acknowledged and confirmed. In 1870 Congress further enacted: U. S. Rev. Stat., 2340, Patents, subject to vested rights.] All patents - granted, or pre-emptions or homesteads allowed, shall be subject to any vested and accrued water rights, or rights to ditches and reservoirs used in connection with such water-rights, as may have been acquired under or recognized by the preceding section. These acts have been held to be but the legislative recognition of a pre-existing right, and not the granting of a new right dating from the passage of the law, the formulating of a rule of construction which the courts would have applied without the passage of these laws. Broder vs. Natoma Water Co., 11 Otto (U. S.) Coffin vs. Left-Hand Ditch Co., 6 Colo., 446. It will be noted, however, that these statutes apply only to streams lying wholly within the public domain; also, that they do not provide, as in the case. of pre-emption of lands, how these rights in water shall be defined and secured. These matters are left wholly to the courts and legislatures of each community to determine in its own way; and the statutes cited operate, in this regard, merely as a relinquishment by the general government of rights which it might claim as lord of the public domain. A full and able discussion of the development of the western law of water-rights generally may be found in the Montana case of Atchinson vs. Peterson, 20 Wallace (U. S.), 507. In this State the courts have from the first denied the existence of any private property in water, or the flow thereof, in riparian owners as such. In the case of Schilling et al. vs. Rominger, 4 Colo., 100, which was the first case in which our Supreme Court passed on this point, and in which the right accrued prior to the adoption of our State Constitution, the court held: "That the first appropriator of the water of a natural stream has a prior right, to the extent of his appropriation, is a doctrine that we must hold applicable in all cases respecting the diversion of water for the purpose of irrigation;" and they place their ruling on the grounds that, "in a country with a climate like ours, the right arises ex necessitate rei;" and hence the statute may be regarded as declaratory merely of the law of necessity in this respect, and as regulating the right thus acquired. Further, the U. S. statutes, just cited, were considered by our Supreme Court in this connection; and in regard to this, it was held in the case of Coffin vs. Left-Hand Ditch Co., 6 Colo., 447, that "the right to water in this country by priority of appropriation thereof is entitled to protection as well after patent to a third party of the land over which the natural stream flows, as when such land is part of the public domain; and it is immaterial whether or not it is mentioned in the patent and expressly excluded from the grant." As will be seen, both at the adoption of our State Constitution in 1876, and by various statutes, mostly passed since that date, an attempt has been made to form a code of laws that will cover all questions that may arise in regard to water-rights. Voluminous as these statutes are, they fail, as such attempts always do, in establishing anything like a complete system; and, as we shall see, for the settlement of many points resort will always have to be made by contesting claimants to the courts, and by the courts to the decisions of the older communities, like California and Nevada, in so far as the cases decided in those States may throw light on the question raised. CHAPTER III. PRIORITIES AND RIGHTS THEREUNDER. Constitution of Colorado, Art. XVI. Sec. 5. Water Public Property.] The water of every natural stream not heretofore appropriated, within the State of Colorado, is hereby declared to be the property of the public, and is dedicated to the use of the people of the State, subject to appropriation as hereinafter provided. Sec. 6. Diverting Unappropriated Water-Priority.] The right to divert unappropriated waters of every natural stream for beneficial uses shall never be denied. Priority of appropriation shall give the better right, as between those using the water for the same purpose; but when the waters of any natural stream are not sufficient for the service of all those desiring the use of the same, those using the water for domestic purposes shall have the preference over those claiming for any other purpose, and those using the water for agricultural purposes shall have the preference over those using the same for manufacturing purposes. Section 5 and the first four lines of Section 6, above cited, are merely the enactment of what had been held to be the law prior to the adoption of the Constitution. Schilling et al. vs. Rominger, 4 Colo., 100. Coffin et al. vs. Left-Hand Ditch Co., 6 Id., 447. In the case of Coffin et al. the court said: “We conclude, then, that the common law doctrine, giving the riparian owner a right to the flow of the water in |