This logo was produced around a centennial celebration that honored the settlers who populated the state after 1859 when the Colorado

Jason Yunker brought an action of trespass in the case against Andrew Nichols for diverting all the waters from a jointly constructed irrigation canal passing from Bear Creek through the defendant's farm to that of the plaintiff's. The canal had been constructed in 1871 by Jason Yunker, Andrew Nichols and John Bell, under a verbal agreement to share equally in the water conveyed. Subsequently, Nichols, having a riparian estate, consumed all the water so that none passed down to Yunker whose lands were below.

It became obvious in the dispute that the doctrine of riparian rights that had evolved in English common law and was practiced in the eastern states, was inapplicable in the arid American West. The traditional law had two central principles - that the right to use water lay only with the owners of land along a water course, and that a user could not appreciably alter the flow of a stream. Either principle would have made western irrigation impossible, as the entire purpose of canal building was to bring water to properties away from the stream and allow it to soak into the fields.

Hallett revolutionized existing doctrine by breaking from the Riparian Rights system by creating the doctrine of Prior Appropriation, which would come to be known as "The Colorado system" and be practiced throughout the western states. In simple terms this meant that an appropriator could capture water from a stream and transport it to another watershed, using streams in both watersheds to convey the appropriated water to its place of beneficial use. Hallett's ideas were used four years later, in 1876 when the Colorado Constitutional Convention met with the intention of resolving existing and potential disputes by constitutional law.

At the Colorado Constitutional Convention 1875-1876, Hallett's opinion on water law was incorporated into the Colorado Constitution. The above excerpt comes from the Proceedings of the Constitutional Convention for the State of Colorado, pg. 700.

The new document laid the foundations for state control by declaring that "The water of every natural stream, not heretofore appropriated, within the state of Colorado, is hereby declared to be the property of the public." Drawing on customs recently evolved in farming communities and in the mining districts, where water was diverted for placer operations, the constitution also stated formally the doctrine of prior appropriation:

"The right to divert the unappropriated waters of any natural stream to beneficial uses shall never be denied. Priority of appropriation shall give the better right as between those using water for the same purpose...those using the water for domestic purposes shall have preference over those claiming for any other purpose, and those using the water for agricultural purposes shall have preference over those using the same for manufacturing purposes."

The "Colorado system" which mandated the public control of water on the basis of prior appropriation proved to be one of the most important laws for the development of Colorado and the West. Litigation between the states over water rights remained common, however, as some states, such as Kansas, still used the common law rules of riparian rights. States having a river flowing through their land did not like the idea of the states above them on the river being able to divert the water before it got to them. Litigation between states occurred at the federal level until 1907 when the United States Supreme Court handed down an opinion which stated that each state had a right to some of the water in the rivers within its boundaries. In the 1920's a number of treaties with other states were agreed upon that helped to ensure an equitable division of river water for irrigation and other uses. One of these was the Colorado River Compact in 1922 which we have posted elsewhere. Even today as increasing populations in the West compete for water there continues to be litigation and water rights will probably be a hot issue for years to come.