NOTE-The references "G. S." are to the sections of the General Statutes of The case of the Highland Ditch Company vs. Mumford, 5 Colo, 325, adopts The case of Lux vs. Haggin, just decided in the Supreme Court of California, CHAPTER I. INTRODUCTORY-WATER RIGHTS AT COMMON LAW. The importance of the interests now depending upon the proper understanding and enforcing of the law of water for irrigation in this State, and the lack of any publication hitherto upon this subject, has induced the belief that a concise statement of the development and present status of this branch of our law will be acceptable, not only to the legal profession, but also to that large and constantly increasing class of our citizens who are primarily interested in the subject. It is therefore hoped that this work will prove useful as a presentation, in a clear and systematic form, of the more important features, at least, of a branch of our law hitherto accessible only in a tangled and confused array of constitutional and statutory provisions and court decisions, and thus subserve the agricultural interests of our State, as the various similar publications on our mining law have the interests of that other of our great local industries. The law defining water rights in natural lakes and streams has always been an interesting study in those countries which draw their common (or non-statutory) law from the English fountain-head; but it is of especial importance in this State, where the dryness of the climate and the porous nature of the soil combine to make necessary an artificial substitute for the rain-fall of other localities. The English common law has always been the general rule of guidance in the courts of this country, in so far as it is of a general nature and applicable to our institutions, and to the local requirements of the particular community, except where modified or repealed by legislative enactment, and this principle was incorporated in terms into our laws by the Legislature of 1861. (G. S. 197.) At common law only those who held lands bordering on the natural stream or lake had the right to the use of the water, and they only to the extent of a reasonable use for their necessary purposes; and if they diverted the water they were obliged to return it to the stream, practically unimpaired in quantity and quality before it left their lands. Judge Story, in a well-considered case in 4 Mason, 397, said: "Of a thing common by nature there may be appropriation by general consent or grant. Mere priority of appropriation of running water, without such consent or grant, confers no exclusive right. Our law assures to the riparian proprietor the right to use in common, as an incident to the land; and whoever seeks to found an exclusive use, must establish a rightful appropriation in some manner known and admitted by the law. Now, this may be by a grant from all the proprietors, or by a long exclusive enjoyment without interruption, which affords a just presumption of right." The use of water for irrigation under this state of the law was of course impossible. In the case of Evans vs. Merriweather, 3 Scammon (Ill.) 496, the question of the use of water for irrigation is somewhat considered. Man's wants in regard to water are classed as natural and artificial. 'Natural are such as are absolutely necessary to be supplied in order to his existence. Artificial, such only as, by supplying them, his comfort and prosperity are increased. In countries differently situated from ours (Illinois) with a hot and arid climate, water is doubtless indispensable to the cultivation of the soil, and in them water for irrigation would be a natural want" (and therefore one for which the riparian proprietor would be justified in consuming it). "Here it might increase the products of the soil, but is by no means essential, and cannot therefore be considered a natural want. So of manufactures." Hence, "when the stream does not supply water more than sufficient to answer the natural wants of the different proprietors living on it, none of the proprietors can use the water for either irrigation or manufactures." In this connection, see also "Angell on Watercourses," secs. 120-129. CHAPTER II. THE DEVELOPMENT OF THE WESTERN THEORY. In the states and territories of the arid regions, however, the necessities of the mining and agricultural interests made the common law theory of the law of water wholly inapplicable to the needs and requirements of those communities, and from the very first encroachments were made upon it, both by courts and law-makers, until we may now say that, in Colorado at least, little trace of it remains. Of this legislation, Mr. Pomeroy says, that it has 'wholly abandoned and abrogated all the common-law doctrines regarding private property in streams and lakes and concerning the 'riparian rights' of 'riparian proprietors.' The statutes in express terms apply to all streams, as well those running through public lands as those bordered by the lands of private owners. No exception from their operation is made in favor of persons owning lands on the banks of a stream. Under these statues no proprietor derives any legal benefit or advantage from the fact that his land is immediately adjacent to a stream. Unless he has made an actual appropriation and diversion of its water for the use of his own land, he is liable to have, perhaps, the entire stream appropriated and diverted away for the benefit of a proprietor whose land is situated at any distance from the stream." Pomeroy's "Riparian Rights," 2 West Coast |