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

The code also addresses the problem of riparian rights: Other
questions not settled by the provisions of this act, arising out of
the rights of riparian proprietors, shall be divided according to the
common law.18 It is not at all clear, however, what riparian rights
remained under this code.

Another provision, similar to those in all of the codes, grants
water companies bringing water to the mines the right-of-way to pass
over any claim, road, or ditch, "provided the water shall be so
guarded as not to interfere with any vested rights.,,19

There was a great deal of borrowing of code provisions among
districts and the laws of Gregory District may have served as a model
for later enactments.20 The laws of Lincoln District, adopted at
Glenard City in November, 1860, simplified the rule of priority:
In all gulches or ravines where water is insufficient for general
use, the oldest claimant shall have priority of right to use of
water.2l

There was, however, some variation, and again the tendency toward
a system of equitable apportionment is apparent. The Revised Laws of
Spanish Bar District, adopted in January, 1861, provide that "all
mill privileges, on either side of Clear Creek, shall be entitled to
half the water in the creek."22

The requirement that mlnlng claims be improved in order to be
recognized, a precursor of the modern concept of beneficial use, was
a common element in the mining codes. It was applied generally to
all types of mining claims, including what was known as a "water
claim." This was a claim to a certain number of feet up and down
the stream, and included rights to construct facilities on the bank
and rights to a certain amount of the water in the adjacent stream.
"Water was scarce and a water claim confirmed a valuable right.
Staking a water claim gave one a prior right to such water. There- 23
fore, it was always provided that such water claims must be improved."

4. The Early Territorial Statutes.

In California, the legislative pronouncements on water rights
reflected the dominance of the mining interests. The Act of 185124
recognized local mining customs concerning water rights, and the
Possessory Act of 185225 gave miners access to the courts against
those interfering with their rights. The Indemnity Act of 185526
required miners entering agricultural land to give a bond for what-
ever damages might be done to the improvements only of the agricul-
turalist. The use of water for irrigation was not a big factor at
that time, and the law was essentially written by the miners themselves.

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