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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in a just and equitable proportion, a certain amount
of said water upon certain or alternate weekly days
to different localities, as they may, in their
judgment, think best for the interests of all
parties concerned, and with due regard to the
legal rights of all.

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It would seem that if the last clause is a tacit recognition of
the rights of prior appropriators, then most of what precedes it
would have to be construed very narrowly. Indeed, ~10 of this act
expressly provides that the prior vested rights of mills are not
affected by other sections of the act, but is silent as to irriga-
tion ditches. This uneasy blend of equitable distribution and prior
appropriation must soon have come to a head because an 1868 amend-
ment enlarged the proviso to protect "the prior vested rights of any
mill or ditch owner, or other person, to use the waters of any such
watercourse."39 As applied in practice, this section appears simply
to have created a mechanism for the administration of the priority
system, an aspect of the law which is dealt with considerably in
later years.

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This law was further refined in the light of local conditions
by a number of acts applicable only to certain counties. In 1872,
it was expanded with regard to El Paso County by giving the commis-
sioners authority to tax water users in the county to pay for their
services and to establish rules and regulations to control the use
of water for irrigation purposes, requiring them to keeg records of
the amount of water each user was entitled to receive.4 In Pueblo
County, however, the statute was restricted by requiring consent of
a majority of riparian landowners before a commissioner, of their
choosing, could be appointed.4l

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The 1861 act also touched on two other areas which were to
become important elements in Colorado water law. Section 5 provided
for the condemnation of rights-of-way for ditches, with damages to
be determined by three commissioners appointed by a justice of the
peace. Section 11 required all parties using water to manage and
control said water carefully, "that in their waste they shall not
injure anyone."

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For a time, the legislature of Colorado Territory wavered
between protecting the rights of prior appropriators and those of
riparian owners. An 1851 act had adopted the common law until re-
pealed by specific legislative authority.42 A statute of 186243
concerning ditch companies forbade the water of any stream to be
directed from its original channel "to the detriment of any miner,
millmen, or others along the line of said stream, and there shall be
at all times left sufficient water in said stream for the use of
miners and farmers along said stream."

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