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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"For a time the miners insisted that the use of water for m~n~ng
purposes was paramount to any other use, and the courts of the state:,
when organized, seemed imbued with the same idea."27

Gradually, however, the balance shifted, and the legislature
begrudgingly recognized the farmers' interests. Interestingly, the
law developed almost independently of miners' customs and was heavily
influenced by the common law of riparian rights. A law of 185428
established a board of commissioners to regulate the use of the
water and provided that water rising on land owned by one person was
not subject to the act unless it passed beyond his lands. Diversions
of water were not allowed to the detriment of riparian owq.ers below"
Most importantly, the act did not apply at all to appropriations of
water for mining purposes, which essentially operated to grant
miners a preference in the use of water.29

In Colorado, irrigation law also developed separately from min'-
ing law, although there was never such a great antagonism between the
two enterprises as there was in California. The early political con-
flicts in Colorado, for the most part, involved competing irrigators
and the use of water for mining was not perceived as a threat. This
may be due in part to the fact that mining, while it used large quan-
tities of water and dumped enormous loads of sediment into the
stream, consumed a relatively small amount of the flow. Another fac-
tor may have been the geographical separation of the two ~ndustries.
The first irrigation laws, however, were similar in many respects to
the early miners' codes.

The first irrigation statute was passed by the legislature of
Jefferson Territory in 1859.30 ~ This law recognized the right of 31
farmers settling on streams to use the water for irrigation purposes,
and protected such claims from subsequent upstream appropriations. 32
However, it also recognized the rights of "agriculturalis:ts remote
from streams" to claim water rights33 and to have the right-of-way,
upon payment of damages,34 to cross intervening lands.

Upon formation of the Colorado Territory in 1861, a new statute
was passed3s ~hich took a different tack reminiscent of some of the
miners' codes of that era. Although it recognized the right of all
agriculturalists settling on the "bank, margin, or neighoorhood of
any stream" 36 to use the water thereof,37 it provided:38:

[t]hat in case the volume of water in said stream
or river shall not be sufficient to supply the:
continual wants of the entire country through
which it passes, the nearest justice of the peace
shall appoint three commissioners as hereinafter
provided, whose duty it shall be to apportion,

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