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express the fundamental lines upon which our system is founded. "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 the same is dedicated to the use of the people of the state, subject to appropriation as hereinafter provided." "The right to divert unappropriated waters of any 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 other purposes, and those using for agricultural purposes shall have preference over those using the same for manufacturing purposes."

These provisions deny the existence of riparian rights, except as they rest upon appropriation. The state not only has dominion, but asserts a sovereign ownership over the waters of all natural streams, recognizing at the same time a right of user by those who apply them to domestic, agricultural or manufacturing uses, and without regard to the location of the lands of the appropriator, whether along the stream or remote therefrom. Indeed, no reason is seen why the waters of one watershed may not be diverted and appropriated for the benefit of lands in another watershed, and such was the decision of the Supreme Court of Colorado in Coffin vs. Left Hand Ditch Company, 6 Colo., 443. Certain it is, that no limit can be placed, except that established by nature, upon the quantity of water that may be so diverted, provided it is in good faith, for actual use, and no element of speculation is involved. A proprietorship above or below on the stream, or along or remotely distant from it, in theory gives no advantage. The test of right is dependent on wholly different considerations.

This unlimited doctrine of appropriation has met the strictures of an eminent writer on the subject, Prof. Pomeroy, who contends that it violates a primary and natural right, which under all systems of jurisprudence has heretofore received recognition. He asserts a right conferred by natural law whereby those who own lands along a stream should be allowed the use of water as an incident of title, and as a matter of inherent superior advantage over those whose lands do not abut on the stream. The invasion of natural right, as it is termed, involved

in the Colorado system, will, he thinks, engender countless strife and controversy in the future and render our whole system a vicious one.

These fears are entirely groundless. The provisions of the Constitution are an organic declaration of what was generally considered to be the law from the earliest days of our territorial existence. The titles of lands, riparian and non-riparian, have been almost universally acquired having in view the existence of such a system, ex necessitate rei, and hence it may be said that any element of abstract justice is eliminated from consideration. Nor can it be said that the practical workings of the system show that it is unwise. Questions have arisen, some are settled and some remain unsettled; but they have not originated out of the unlimited scope of the doctrine of appropriation, which is the basic principle of the system, and the particular respect calling forth the criticism of Prof. Pomeroy. In truth, it is the only system that meets natural conditions, one of which is that the lands on our mesas, more or less remote from the water courses, are frequently the best adapted to agriculture, by reason of the character of the soil, and the availability of natural reservoir sites as strengthening adjuncts of an irrigating system. If proof of this beyond our own experience were needed, the fact that the entire arid region included within the boundaries of New Mexico, Arizona, Utah, Wyoming, Idaho, Dakota and Montana, is practically under the same system, should demonstrate its utility, and its superior adaptation to the wants of the people who are settling up this growing empire of the West.

It is erroneous, though, to suppose that the doctrine of unlimited appropriation of water is a borrowed one, or that it obtained under any previous system of jurisprudence of which records are extant. It was evolved from the climatic and other natural conditions that characterize the arid plateau of the Rocky Mountain region. Its birth place was here, and it may be said to be indigenous, as it were, to our sectional development. Irrigation, as an art, antedates history. It was practiced by eastern nations from their infancy, and the prehistoric remains of ancient systems attest the stupendous scale on which it was done. Modern works sink into insignificance as compared with the undertakings of the past, whereby water was utilized to make the earth more bountiful. Archæologists are nearly agreed that the cataracts of the Nile are the remains of artificial construction. Nearly equidistant from each other, they served as colossal dams, cal

culated by close engineering science, partly for the purpose of enabling the waters of the Nile to be diverted even to the confines of the great desert. The records of ancient cities that flourished centuries before Christ, where to-day are but shifting sands, show the powerful agency of these immense public works in creating a vigorous national life and civilization. The prehistoric monuments of the new world, as they are found to-day, in Central America, Mexico and Arizona, exhibit the patient toil and energy of the early races in planning and executing irrigation schemes upon a scale of magnificence, which would cause the modern capitalist to hesitate. In Arizona alone, more than a thousand miles of ancient canals and laterals, built by a forgotten people, in many places excavated through solid rock with the crude instruments of the stone age, made possible in a natural desert the means of subsistence for a large population.

Records do not exist that enable us to determine in all cases the system of legal rights by which the diversion and user of water was controlled among these ancient peoples. Among some of them, as in India and Egypt, undoubtedly the state assumed the function of carrying forward these enterprises, and the distribution of water was a matter of state administration, under local rules and usages. Where the community system prevailed, as in the pueblos of Mexico, the water of non-navigable streams along which the pueblos were situate was transferred by the nation to the pueblo authorities, who were entrusted with the division of it for the benefit of settlers. But when we pass from the domain of mere custom to systematized and established law, it is unquestionably true that the unqualified doctrine of appropriation which we have made the keynote of our system, and by which all the waters of a flowing stream may be taken by one who is first in time in making use of them, and without regard to the place of use, formed no part. To a greater or less extent, some recognition was given to riparian ownership, and some attempt made to reconcile the larger use of water for irrigating purposes, especially by proprietors whose estates were remote from the stream, with a primary right existent in the riparian owner to a common enjoyment in the flow of the stream.

Under the common law of England, of course, the doctrine of prior appropriation had no place at all. The owner of land along the stream had a right to the water in its accustomed flow, which was wholly independent of user. It was an incident of his ownership; he could at any time make use of it for all reason

able purposes, in such a manner as not to interfere with the publice easement of navigation, returning it to the stream without material change of quantity or quality, and no exclusive appropriation by another could deprive him of this right. It is true that dicta are to be found in some of the earlier English cases, notably Williams vs. Morland, 2 Barn. and Cress., 913; Liggins vs. Inge, 7 Bing., 692; Bealey vs. Shaw, 6 East, 207, from which it could be implied that an appropriation by one riparian owner to a beneficial use gave an exclusive right as against others; that the water so withdrawn became private property, and only what remained in the stream continued publici juris, but subject to successive appropriations in derogation of the common right. This was the arid region doctrine, pure and simple, except that the exclusive enjoyment was confirmed to those only whose lands abutted on the stream; and in the case of Lux vs. Haggin, 69 Cal., 135, these early dicta were relied on by counsel as showing that the primitive common law rule was in strict accord with the doctrine that property in the use of water could be acquired by appropriation only. But it is sufficient to say that in the case of Mason vs. Hill, 5 Barn. and Adol., 1, Chief Justice Denman showed with great wealth of learning that these early expressions of English judges did not correctly state the law of England; and dating from that case, all doubt on the subject was removed, so that the common law as almost universally expounded at the present day negatives the idea of appropriation conferring an exclusive right, except where it rests upon a grant, or upon prescription presumptive of a grant.

Equally, the Roman civil law recognized only a qualified appropriation of water as property, and always "subject to a common right by natural law, where it is capable of being fully enjoyed without exclusive possession." (Bowyer Comm. Mod. Civil Law, 64.) Although it is true that in those countries where irrigation received the encouragement of the state, the civil law was accommodated in various ways to existing conditions of soil and climate. In Mexico, for instance, while the common use of waters of unnavigable streams was primarily for all who could gain access to them, yet the government by special concessions in most cases, and in other cases by usages and customs having the force of law, permitted the diversion of the waters of such streams and to that extent the deprivation of the common use; but never in such a way as to despoil a lower estate, and no individual or company not a riparian proprietor could acquire the

use of such water "without the previous corresponding permission of the government." (Escriche, title "Acequia.")

The history of California exhibits the development of a system of water rights, under conditions somewhat similar to those prevailing in Colorado, in which there is a curious blending of the doctrine of appropriation with substantially all the common law incidents of riparian ownership. It is an interesting history, because it illustrates how forcible were the physical conditions of the early settlers in establishing the right to appropriate waters when the lands through which the streams ran were public, and equally how tenacious in the judicial mind was the idea of a common right of enjoyment by the owners along the streams, when the title to such lands became private. When gold was discovered in California in 1848, and there followed the maddening rush of people from every clime and quarter of the world to wrest a fickle fortune from the "fields," all the land belonged to the United States, except such private claims as had originated under Mexican sovereignty and were protected by the treaty of acquisition. Necessity with these pioneers was the mother of lawother law they had not. The nationalities were as mixed as in any movement of people the world had ever seen, but the AngloSaxon was supreme; and with him came a spirit of fairness, a love of order, and a demand for system that soon crystallized into a code of local rules for the government of all. These rules recognized a priority of right in the first discoverer of a mining claim, and prescribed the conditions under which that right might continue or under which it might be deemed abandoned. As a necessary auxiliary to the exercise of such right, the streams were thrown open and the waters conducted by artificial means to "claims" remote from the banks, and there employed to wash out and separate the virgin gold. Although at first confined in practice to mining purposes, the diversions extended to other utilities, to manufacturing, milling and irrigating. For eighteen years and until the act of congress of July 26, 1866, these possessory rights received no formal sanction from the United States government. So far as any control was vested in the state, they were recognized by various enactments; but as against the general government, or a patentee under the government, they were absolutely without force; so that a patent to land issuing prior to the act of 1866 was construed by the courts of California and Nevada as vesting the grantee with all the common law incidents of title appertaining to any natural stream coursing through the land,

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