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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Two years later this was amended to include only these riparian
owners "who may have a priority of right. ,,44 Notwithstanding this
reversal, the declaration by the Colorado Supreme Court in 1882 that
the doctrine of prior appropriation had never been obtained in the
state45 was not quite accurate.

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The 1864 act also injected another element into the law, that
of regulation by county commissioners of the rates charged by ditch
companies.46

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An act of 1866, applicable only to Costilla and Conejos coun-
ties, contained a variation of the 1861 administration system with-
out any administrative discretion in apportioning the water. It
created an administrative official responsible for supervising ditches
and dividing the water "in such a manner that each and ev'eryone will
have the amount of water he is entitled to. ,,47

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Another important provision in this act was a preference in the
use of water. The act provided that "public acequias [ditches], dur-
ing the farming season, shall have preference over all ditches used
for any mills, machinery, or any other ditch that may not be exclu--
sively used for farming purposes."48 This theme was to become impor-
tant at the Constitutional Convention in 1876.

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Subsequent enactments made minor amendments to the system just
described and expanded the regulation of waste, requiring tail ditches
to return excess flow to the stream49 and irrigation ditches to be
maintained,50 and forbidding ditch owners to run more water in the
ditches than they needed.5l

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Two other legal developments prior to the Constitutional ConVlen-
tion should be noted. The first was a federal statute in 1866 whi,ch
recognized "that wherever, by priority of possession, rights to the
use of water for mining, agricultural, manufacturing, or other pur-
poses, have vested and accrued, and the same are recognized and
acknowledged by the local customs, laws, and decisions of courts,
the possessors and owners of such vested rights shall be maintained
and protected in the same. . . .,,52 The United States Supreme Court
later declared that this statute merely confirmed existing rights
and was not an independent grant.s3 '

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Second was a recognition by the Territorial Supreme Court in 1872
that persons desiring to divert water from a stream were entitled to
a right-of-way across intervening lands.54 Justices Hal:lett, Belford,
and Wells agreed that the necessities of life in this "dry and
thirsty land" required'a departure from the common'law, but eac.h
approached the problem somewhat differently. Hallett and Belford
relied in part on the statute of 186155 which permitted such .

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