Early Water Law in Colorado
"In a dry and thirsty land it is necessary to divert the
waters of the streams from the natural channels, in order to obtain the
fruits of the soil, and this necessity is so universal and imperious that
it claims recognition of the law."
These words were written by Chief Justice Moses Hallett in his
Territorial Supreme Court Opinion in the case of Yunker v. Nichols in 1872.
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.
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
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.
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