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unaffected by any prior appropriation for any purpose.
It was said that as long as the lands and waters remained public, they were open to all, and that abstract justice demanded that the first appropriator be protected by according to him a superior right; but when private ownership intervened, the water was held to be an element inseparably connected by the laws of nature with the freehold itself, as much so as the growing timber, and no adverse user, short of a prescriptive right, could derogate from this natural advantage of all whose lands were along the stream. (Vansickle vs. Haines, 7 Xev., 249.)
The statute of congress passed July 26, 1866, recognized and confirmed all rights to the use of water for mining, agricultural, manufacturing and other purposes, acquired by priority of possession on the public lands, whenever such rights'are acknowledged by local customs and laws, and by the subsequent act of July 9, 1870, all patents are issued subject to such vested rights. The California system, therefore, assumed a dual character in which the right of exclusive appropriation had a place, but only in respect to lands which were part of the public domain; and, conversely, one who settled upon lands along a stream and acquired the government's title before such priorities attached had a status as at common law, which could not be affected by any subsequent user on the part of others.
The situation was not a logical one. The stern necessities that gave birth to the doctrine of appropriation were permanent in character; they inhere in nature; they were the conditions of the country and its people from which there could be no escape. A cusiom had grown up wholly irreconcilable with the accepted irri; les of the common law. It had the sanction of domestic law, and was encouraged by national legislation. It was part of the history of the state, and so acquiesced in. What good reason could there be for confining its scope to public lands, and implanting side by side with it the antagonistic riparian doctrine for private lands? It was an inconsistency that could not withstand the test of experience, and which sooner or later would become intolerable. History has since demonstrated this.
Nevada was in line with California in adhering to the common law doctrine, until in 1889, in the case of Reno Smelting Company and Reduction Works l's. Sterenson, 21 Pac., 317, the Supreme Court reversed its former rulings, and adopted the principle of prior appropriation as the only one applicable to the use of water in that state. In California, the courts felt constrained to enlarge the reasonable uses which riparian owners might make of the water, so as to authorize diversions for purposes of irrigation, reference being had to the necessities of all other owners along the stream; thus modifying the common law rule, but falling far short of an unqualified acceptance of the principle of appropriation.
We think, then, it must be said that the Colorado system is founded on a salutary principle, which if reasonably administered and applied will produce better results in ultimate wealth and population than any other that could be adopted. But until a legislative code is enacted which will apply in some detail the main underlying principle to the practical situations that are being developed, a grave responsibility rests upon the courts.
It is a serious question how far the principle of prior appropriation can be carried into practical effect as among the indi. vidual consumers of water under the same canal. There should be, and ordinarily there is no difficulty in apportioning the water of a natural stream among the canals taking water therefrom, in the order of their priority. These priorities have been adjudi. cated, and the executive department of the state undertakes to administer them. With watchful, competent and honest superintendents of irrigation, there is no reason why water can not be divided up in quantities and according to priorities as the courts have established them. In times of shortage, however, the acts of these administrative otticials have been oftentimes impeded by writs of injunction. A short-lived injunction sued out on behalf of one canal is potent sometimes to disorganize the whole plan of distribution, and give it water to which it is not entitled. A continuance of the injunction for only twenty-four hours may be sufficient to work a grossly inequitable result, and for this reason it behooves the courts to be exceedingly chary in issuing writs which must have the effect of arresting or interfering with the official distribution of water.
Simple as the scheme of distribution is in practice as among canals having their headgates on the saune stream, it would be very complex if applied to consumers under the same canal; and it remains an unsettled question whether the priority arising from appropriation and guaranteed by the Constitution extends to such individual consumers. Inasmuch as irrigation is now undertaken by means principally of large canals, from which
rights are issued, represented by stock certificates, or contracts, entitling the holder to a certain quantity of water, it is of importance to know whether, if the supply be insufficient for all, the courts will recognize a superior right among some in the order in which they have appropriated their water to individual needs. This question is becoming of greater moment every year, but as yet it is not authoritatively settled.
In contemplation of such state of affairs, the legislature of 1879 passed an act which provides in effect that the water carried in a canal, if it be less than the full supply to which it is entitled, shall be pro rated among the consumers thereunder, to the end that all may suffer from the deficiency in proportion to their several rights. In the case of The Farmers High Line Canal and Reservoir Co. vs. Southworth, 13 Colo., 111, the Supreme Court had occasion to consider this act, and the question whether or to what extent it could stand with the constitutional guaranty of prior right. Each of the three judges filed a separate opinion, and it can not be said that as a court there was any concurrence of views upon the proposition we have suggested. It seemed to be considered by all that circumstances might exist which would make it the duty of ditch companies to limit the operation of this pro rating statute, by dividing consumers into different classes, having unequal rights; as, for instance, where a canal as originally projected and constructed was afterwards enlarged, and an additional priority acquired on account of the enlarged use. A convenient and perhaps necessary dividing line is thus established, by which the original consumers rank differently from those who should share pro tanto only in the increased capacity. But in the absence of a special feature of that character, does the constitutional mandate require that the holders of water rights under the same canal be accorded priorities among themselves in the order of time in which they have severally begun farming operations? We think it must be said, as was said by Justice Helm in the Southworth case, that the Constitution does not contemplate this. It is entirely impracticable. No such scheme for the distribution of water could be put in successful operation, and, moreover, it would produce results as between consumers of water under different canals which would necessarily defeat the principle itself. If worked out logically, we could look for the utmost confusion in the entire system of administration of water rights. The diffi
culties are such that it is safe to say the courts will never embark, except to a limited degree, in the undertaking of recognizing individual priorities of consumers under the same canal, or compel the managing officials of such canals so to do in parceling out the water.
We have in Southern Colorado some large tracts of land, the titles of which originated by private grant when this part of the state was under the sovereignty of Mexico. These titles are protected by the obligations of the treaty of Guadaloupe Hidalgo, and in most cases the lands have been segregated from the public domain and evidences of title passed from the United States government to the grantees and their assigns. They have within their boundaries natural streams, and the contention is made that all the incidents of title under Mexican law attach to these private grants, and that as one of such incidents the owners have absolute control of such waters, irrespective of any user. In other words, that these waters are not impressed with the public character ordained by the Constitution and so subject to appropriation by whomsoever will utilize them to beneficial ends; but that the rights thereto became irrevocably fixed under an alien system of jurisprudence. The question is very interesting, and in one aspect opens up historical inquiry as to the local customs prevailing in the Mexican provinces prior to the cession as respects the diversion of water from natural streams. In another aspect, it involves the supremacy of a state, speaking either by its organic law or through its legislature, to define and regulate the rights of riparian proprietors, irrespective of the source from which the title of the land is derained. Does the treaty obligation protect simply the title, and is it still within the jurisdiction of the succeeding sovereignty to provide the rules of law by which such incidents of title as riparian rights shall be exercised? Judge Riner, in the suits instituted by The United States Freehold Land and Emigration Company, in the Circuit Court of the United States, held to that view; but as the cases are now pending on appeal, it may still be considered an unsettled question.
The matter of the greatest practical importance to us in Colorado must always relate to the statutory methods by which the priorities of water rights are adjudicated, and the machinery by which the decrees are enforced. It is something to be regretted that the legislation of 1881 provided for a separate proceeding in each water district, of which there are some sixtyeight in the state. Many of these districts have their source of supply from the same stream or its tributaries, and the consequence has been that the users of water in each district have, at considerable expense, proved their claims and obtained awards of priority, which, while conclusive upon others in the same district, have no strict legal force as against consumers in other districts. It would have been infinitely better if each adjudication had been coextensive with a certain drainage area, as, for instance, the six divisions embracing the waters of the Platte, Arkansas, Rio Grande, San Juan, Grand and Green rivers. The priorities as then determined would be res adjudicata as against all who take from the same natural stream or any of its tributaries. No contention could then be made that the court in one district was over prodigal in allowing claims to the prejudice of appropriators in another district, and we would have had much greater uniformity in the allotment of water on a basis proportionate to actual needs.
These adjudications were made in many cases before the growing scarcity of water became so keenly felt as at present, and it must be admitted that some of our courts recognized very extravagant claims, predicated not upon actual user, but on the carrying capacity of the ditches. The fault was largely in the system, which, without scientific data as to the normal supply of water in any given stream, and without a uniform standard of measurement, imposed upon the district judges throughout the state the duty of passing upon these claims. The consequence has been quite anomalous, for it is well known that in many cases the natural streams are not capable of carrying the aggregate amounts of water that have been adjudged to claimants, all of which, in theory at least, are, or should be, based upon actual beneficial user.
A board of control organized as a branch of the executive department, would have been much better competent to deal with these questions of allotment; and with appropriate provisions for an appeal to the courts in a controverted matter, we would have had greater uniformity, a more conservative distribution of water, and a degree of finality in the settlement of claims which we do not have now. This in a general way is the framework of the Wyoming system, which works well in practice, and ought to serve as a model hereafter throughout the arid region, where no system has yet been adopted.