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

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As applied to the use and development of water, however, this
principle was in direct conflict with the common law, which protecte:d
the rights of riparian owners to a reasonable use of the water run-
ning through their lands and the maintenance of a continuous flow in.
those streams.9 A statute of the newly formed State of California
in 1850 adopted the common law of England as the basic law of the
state,lO but another statute in 1851 provided that the courts could
take evidence of miners' customs in adjudicating local conflicts.ll
In the face of this conflict, the California Supreme Court in 1853
declined to adopt the new principle without more specific legislative
guidance. 12 A few years later, however, the court held that a prior
appropriator on the public domain could continue to divert water for
mining purposes to the prejudice of a subsequent riparian owner.13

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3. Colorado Mining Codes.

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Although California subsequently developed its own peculiar mix-
ture of the riparian and appropriation systems,14 the principle of
prior appropriation was an important element of mining tradition whlen
the Colorado mining boom began. The Colorado miners, as had the
Californians, formed mineral districts as the basic unit of local
government. The laws of each district were adopted in general meet-
ings attended by all interested persons within the district.

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With regard to water rights, the most important question addressed
by these early codes was the allocation of water among rival claim-
ants. There is an interesting tension in the laws of certain dis-
tricts between a strict priority system and a system of equitable
apportionment among users. For example, a series of resolutions
adopted by the Gregory Diggings District at a meeting held on the
North Fork of Clear Creek on June 8, 1959, recognized that the
priority of mining claims was to be respected, but declared that wh,en
two parties wished to use water from the same stream for quartz min-
ing, the water was to be equally divided.lS A later code, however,
adopted in February, 1860, provided that any person intending to
erect a quartz mill might cut a race from the stream and hold the
water, provided that he did not interfere with vested rights, "all 16
claims held under previous laws being regarded as vested property."

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This 1860 code also modified the earlier division of waters by
recognizing the greater social utility of one strong enterprise as
opposed to two weak ones, using the rule of prior appropriation as a
tool to accomplish this goal: When water is claimed for gulch and
quartz mining purposes on the same stream, neither shall have the
right to more than one-.half, unless there shall, be insufficient for
both when priority of claim shall determine.17 '

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