PUB00148

• Year: 1978
• Title: The Colorado Water Study Directions for the Future
• CWCB Section: Administration
• Description: The Colorado Water Study Directions for the Future
• Publications - Doc Type: Historical

invasion of miners who combed the hills and valleys in search of the
precious metal. The techniques they used were developed in the Cali-
fornia gold fields during the preceding decade, and they depended
heavily on water for their successful operation. The first findings
of gold were in placers and were worked by washing the gold out of
the gravel in long sluice boxes constructed on the banks of the stream.
A later development was the mining of quartz veins by crushing the
rock in stamp mills and then panning out the gold. Long series of
flumes and ditches were constructed to transport the water to the
mills, which in later years were also operated by water power.2
Although mining, as compared to agriculture, was not a highly con-
sumptive use of water, it did have significant effects on water qual-
ity and, consequently, on water efficiency for mining purposes. An
upstream user generally had a significant advantage over those down-
stream. In addition, different claimants located in the same vicinity
on a stream competed for rights to divert the same water.

Huge mining camps sprang up in the richest canyons and mountain
valleys. As the population in these areas increased, so did the
demand for water and conflicts over its use. The miners, many of
whom were veterans of the California gold rush,3 developed a complex
set of rules to govern their fledgling society. They looked f~r
guidance, naturally enough, to their experience in California.

2. The Development of Water Law in California.

The miners who rushed to California following the discovery of
gold in 1848 were trespassers on the public domain.5 There was no
federal law to govern this newly acquired territory, although the
new settlers brought with them their common-law heritage. They soon
recognized the need to formulate a set of rules that would be appli-
cable to the new situation which they encountered. In numerous
local gatherings, reminiscent of the early New England town meetings,
they drew up elaborate codes governing the acquisition and use of
mineral claims and associated water rights.

The basic principle which was developed in these meetings was
that the right to hold mineral and water claims was based on discov-
ery and continued use, and that priority of appropriation determined
priority of right.6 This doctrine has roots in the civil law of
Spain and Mexico, which in turn is founded on ancient Roman law.7
It also finds a parallel in the federal land disposal laws of the
latter 19th century, such as the Homestead Law of 1862,8 which were
designed to encourage the development of the public domain by creat-
ing and protecting private property rights in the land.

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