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The Influence of the Court The Honorable Judge John R. Tracey .. It's always enjoyable for me to be with water people like yourselves. I was asked to talk a little bit this afternoon about some of the ways in which the courts have influenced the direction of water Jaw in Colorado. Our courts have helped to shape or mold water practice and water Jaw. I have to start out with a shaggy dog story. I apologize. but I happen to like shaggy dog stories, and it makes a couple of points that I would like to make. It is a story attributed to a friend of mine. Judge Benton. who until his retirement recently was judge of the Denver Probate Court. Judge Benton was lumd1ing an estate. The decedent was originally from the Middle East. Among his assets when he died, the man had 17 camels. The provisions ofhis will were that one-half of his assets would be left to his oldest daughter who was his favorite, 113 ofhis assets to his middle daughter, and li9th of his assets to his yoWlgest daughter. Try as he might, Judge Benton could not figure out how to divide 17 camels in halt: let alone into a third or a ninth. So he threw up his hands and said, "OK., I'm going to sell these camels and divide up the proceeds. I know how to split up money." But the (Ialtghters said no. I guess camels are special in a kind of camel way and they did not want these camels sold. So Judge Benton said, I will appoint a Special Master. I think you've heard about Special Masters. So he appointed a fellow from somewhere up arOlmd Salida, who accepted the appointment and set the matter for a hearing. On the day set for the hearing, he showed up with his own camel. He said, "'This is no problem. I'll add my camel to your 17 camels and that makes 18. I can divide 18 in half, the oldest daughter gets half or 9, the middle daughter gets a third or 6, that totals 15, and the yoWlgest daughter gets a 9th that's 17, then I'll take my camel and go home. Which he did. . And everybody was very happy. My point is that sometimes it really helps if you bring a little something extra to the table. I would like to think that maybe on occasion our courts have been able to be irmovative and have made everybody happy. I want to make a defense of how the courts have operated in this state, and I'll tell you that right up front. I think the courts have provided a mechanism. a forum, a way to balance a good many interests throughout the community: urban vs. rural, agricultural vs. other interests, east vs. west and so forth. The Colorado Jaw of water rights is largely the product of the free market system and the English common law. Very simply put, in the mid-1800s farmers, ranchers, and miners established rights simply by diverting water and placing it to use. This was the method that was used that created a system for the allocation of a very scarce resource. This preceded Colorado statehood by many years. This appropriation doctrine was later incorporated into our Constitution and it's the root of Colorado water Jaw. Virtually all of the most senior water rights in the state were established by this kind of spontaneous process which was then confirmed by the Legislature and later court decisions. The very first recorded case involving a water matter that I have been able to find was the case of Ywnlcer vs. Nichols. It was dec~ded in 1872 by the Territorial Court. One of the judges in his opinion observed, "In a dry and thirsty land it is necessary to divert the waters of streams from their natural channels, in order to obtain the fruits of the soil, and this necessity is so universal and imperious that it claims the recognition of the law." In the Y wnlcer case, a very 1)Ipical kind of case in the early 1870's, it was the problem of two men building a ditch. one upstream, one downstream. The man upstream diverted and cut off the man downstream, and I suppose that may be the earliest recorded example of the old adage that it is better to be upstream with a shovel than downstream with a senior water right. 1bat was almost 125 years ago and we are still dealing with it. But what was important in that case was that the Colorado courts very early recognized that there is a great difference between Colorado and Conditions in the more humid and moist east. What worked back there wasn't going to work in Colorado. Back east the riparian doctrine was essentially what established the right to use water. The riparian doctrine simply said that if you owned land alongside a body of water, a stream for example, you were entitled to take a reasonable amoWlt of water for, your use, There were two problems: one.}OU had to be alongside the stream or alongside a body of water and that wasn't going to work out here. The second problem was that there was no certainty of right. A specific rate of flow and volwne was not established. It was a rather nebulous kind of "reasonable amoWlt" of water and that wouldn't work here. It's bad enough trying to raise a crop Wlder the climatic conditions that sometimes go on aroWld here without having to worry about the Wlcertainty of water rights, so the courts in Colorado said no to the riparian doctrine and confirmed the appropriation doctrine which pennitted a more extensive use of water and gave certainty to the appropriators. The court in the Ywnlcer case reasoned Arkansas River Basin Water Forum 15 "A River of Dreams and RealitiesH