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that these rights existed even before any statute was enacted and would survive even though the statute were repealed, The court felt that strongly about this doctrine and how it provided the basis for our water rights and our system of allocation and distribution of water in the state. The second recorded case in Colorado involving water came two years after Colorado was admitted to the Union: Schilling vs. Rominger. This case also confirmed the doctrine of appropriation. Again the situation was the same; an upstream diverter cut off a downstream diverter. The downstream diverter had 15 acres of oats which he lost. His damages were $187.50 so he immediately appealed, something that has happened in Colorado with some frequency since. The early period of the involvement of the courts in water in Colorado could be referred to as the appropriation era. and their primary task at that time was to adjudicate the numerous stream systems and decree the quantity and priority of competing appropriators. However, there was at least one case dealing with water ~ in the early years, in 1912, long before there was any legislation in that area. long before there was a great concern about pollution. In 1912 the City of Pueblo and the City of Canon City filed a suit to enjoin a placer mining operation up near Twin Lakes. You may remember this came out in the O'Neill case, and some of you may know the progeny. I think there are four O'Neill cases that were appealed to the Supreme court. Finally, O'Neill went to the U.S, District Court. The problem was that the placer mining operation was using vast amounts of water and had excellent water rights, They were using this water to wash down tons and tons of sand and gravel and gold-containing ground. I don't know anything about gold mining, but they were washing the gravel and the gold-bearing matter down through sluices to try and collect the gold. All of this ended up eventually in the Arkansas river and there was a glacial flour of very fine material that wouldn't settle out so that Canon City and Pueblo could not make the water suitable for municipal use. They soon got an injunction against the operation, and without all that material going into the river, the problem cleared up. No more glacial flour, no more problem with that kind of pollution and Canon City and Pueblo had good water again. Incidentally, by 1912 all the gold was almost gone anyway so it wasn't a great loss as far as the mining company was concerned. They walked away from the area and quit any efforts to mine up there. But that is at least one example where the courts were able to respond to a quality issue, not just quantity and priority. In the time just after World War II, with the availability of cheap electricity and improved pump technology, ground- water came into its own. In some states two doctrines were adopted: one with respect to groundwater and one with respect to surface water. Colorado was smart enough, and the courts were smart enough, to determine that where the two are hydraulically cormected there should be one doctrine to apply. That is the appropriations doctrine. Many of you are familiar with the Felhauer case back in the 1960s. It was decided by the Supreme Court in 1969. The Division Engineer had shut down about 39 wells out of about 1600, and the Supreme Court said, "No, you have to have rules and regs first. You cannot operate in that fashion," Regulations did, of course, follow. Again that procedure in the courts provided an opportunity for hearing and brought a lot community input and court approval. There was also a series of cases in the 1970s that groundwater is tributary to a stream and thus is subject to stream priorities, -- District 10 Water Users Association cases, and so forth. One of the things that the court said was that groundwater is not subject to senior stream priorities when the time lag exceeds one hundred years. You will find that now in the statutes, because the court said the cormection would be de minimus if the time lag exceeded that amount of time. That was written into the statutes and refined to 1/10 of one percent, but the courts had the opportunity to first address the issue. You can see that there has been a process that after hearing the evidence, many engineers for example, and the best legal arguments that can be presented, the courts have been called upon, where there has not been any guidance, to address a new situation, to make policy, and I think this is appropriate. I think it is necessary for the courts to do that. It is reviewable by the Legislature. The courts also applied the rule of material injury to groundwater. That was also later codified in the statute. The court took the lead in trying to find ways to reduce hann to accommodate competing interests. This kind of spontaneous system of developing law through litigation, which is essentially how the common law developed in England, has not been without its detractors, I found something kind of interesting that was attributed to a Arkansas River Basin Water Forum 16 "A River of Dreams and Realities"