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<br />~'~<~isionis in the same
<br />"y. . ,..':~b~~~o(opinion than
<br />,:<t.fll.1rt~ ,'r~t.bflower court's cava-
<br />", ~<t.~~t./Qf the defendants' testi-
<br />monyandcondoned its acceptance into
<br />.'. cviden~of a defective certificate of incor-
<br />poratiOflfo,rthe Left Hand Ditch Compa-
<br />ny. . T1Ul certificate contains almost none
<br />of thedatarcquired by the 1864 session
<br />law on incorporation, Sections 31,32, and
<br />33 of tbat law calHorfull details of how a
<br />ditch c"'ll).~y was formed, a description
<br />of the right of way,' the class of persons
<br />who weret() be furnished water, and the
<br />price of water fixed by the county com-
<br />~oJ'\ers.u The certificate of incorpora-
<br />tionoftbe Left Hand Ditch Company
<br />provid~only the names of the three in-
<br />'col"P()1'ato1'$l.the date, of incorporation,
<br />,'.andan:~anation that it existed for the
<br />purpose of; mining. ,milling, and agricul-
<br />ture. Although the fanner who was princi-
<br />pally reSponsible for the alignment of the
<br />ditch and the construction of the diversion
<br />dam was cot oneo{thenamed incorpora-
<br />tors. he was named as a plaintiff in the
<br />ftrsttrijUand as an owner of the company.
<br />At onetime, however I he had served as
<br />company president,
<br />In the decision, the Colorado Supreme
<br />Court, based on a novel interpretation of
<br />the . territorial session .laws, maintained
<br />that eVen the two fanners who had helped
<br />const{uct the ditch and thereby claimed
<br />ownership rights to it were trespassing be-
<br />causeihey had lost their ownership rights
<br />by notpi~gusc;ofthe ditch. 14 Thus, so
<br />far .~hecClurt\Vasconcerned, whether
<br />,.the wat~r\Va&:usedforfarming or for min-
<br />jng andmium8WllS<nClt ' an. issue because
<br />the fai1ner$haG ,k>stt~eir rights by not ap-
<br />;,proPricltiJlg~r~years without drought.
<br />Byregal' ~~caseas one of trespass
<br />()nIy~ ' 'qie Court was able to
<br />,extra (;,.t;<considered was the
<br />onlY; ...,<'~~C$tern water: Water left
<br />,in a'str~~as\Vasted; it. must be taken
<br />put ofa.strcr.un'l1leasured, and allocated
<br />by decree. to those who arrived first and,
<br />therefore, had primary rights. Helm con-
<br />
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<br />Volume 34 Number 6
<br />
<br />
<br />eluded his decision by stating that "this is
<br />an action of trespass; the defendants be-
<br />low were, according to the verdict of the
<br />jury, and according to the views herein ex"
<br />pressed, wrong-doers; and, considering
<br />the nature of the action, we think the proof
<br />of incorporation sufficient."15 Justice
<br />Helm faulted the defendants for not con-
<br />tacting the ditch company, which, he said,
<br />"might then, perhaps, have complied with
<br />the agreement without serious injury to its
<br />property. .,
<br />A case based on trespass hardly seems a
<br />suitable one for determining doctrine' on
<br />how water should be viewed in the West,
<br />but that did not seem to bother the jus-
<br />tices on the bench. If the Left Hand Ditch
<br />Company's water rights are ever readjudi-
<br />cated, a hard look at the inconsistencies in
<br />the testimony may turn up some informa-
<br />tion to which the state engineer was not
<br />privy when he prepared his reports. For
<br />instance, according to the engineer, the
<br />ditch was enlarged in 1870. Among the
<br />witnesses, however, there was little agree-
<br />ment; some said the dam and ditch en-
<br />largement occurred in 1867. Whatever the
<br />year, the improvements consisted of a di-
<br />version dam built across the entire width
<br />of South St. Vrain Creek and a ditch en-
<br />larged to be 14 feet wide and 4 feet deep~
<br />Also, the state engineer's reported date of
<br />1 June 1870 seems too early in the season,
<br />and no evidence was presented by the Left
<br />Hand Creek fanners to show a need for
<br />supplemental irrigation water in 1870,
<br />If mining operations along James Creek
<br />required more water, it is probable that
<br />the enlargement of the ditch was. begun
<br />soon after gold was discovered there in
<br />1866. The state engineer's report contains
<br />Left Hand Ditch Company decree entries
<br />for 1863 and 1870, both dated 1 June.16
<br />
<br />The latter entry lists about 10 times the
<br />amount of water flowing as does the
<br />former.
<br />Recently, Joseph L. Sax of the Univer-
<br />sityof California at Berkeley cited the
<br />Coffin case in a discussion of prior-appro-
<br />priation and riparian laws and suggested
<br />that. a close reading of the Coloradoses-
<br />sion laws of 1861, 1862, and 1864 shows
<br />that. Helm blatantly misinterpreted the law
<br />in his decision in George Coffin, el at. v.
<br />The Left Hand Ditch Co.'>I1
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<br />Just as riparian laws in the 19th century
<br />. were modified to include reasonable
<br />uses, prior-appropriation laws are being
<br />modified in the late 20th century to in-
<br />clude beneficial uses that preclude the de-
<br />struction of streams and their channels.
<br />When needs are apparent, laws tend to
<br />follow, albeit much too slowly, especially
<br />in states that rigidly adhere to the Colora-
<br />do Doctrine.
<br />Today, the Left Hand Ditch diverts all
<br />the water from South St.. Vrain Creek to
<br />James Creek even during normal flow.
<br />Some water seeps back into the South St.
<br />Vrain after it leaves the dam, but most of
<br />the water flowing past Lyons, Colorado,
<br />comes from another tributary.
<br />Greater damage has been done to other
<br />streams, such as those in Utah, where the
<br />flow law is extremely restrictive. As Utah
<br />state senator Scott Howell said of Little
<br />Cottonwood Creek in the Wasatch Moun-
<br />tains. a ."strcr.un literally dies when the
<br />water is gone." Howell has introduced a
<br />bill that, if passed, will "modify Utah law
<br />to define water left in the channel as 'ben-
<br />eficial' and not 'wasted.' "18
<br />In addition to the in-stream flow laws
<br />(continued on page 44)
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<br />ENVIRONMENT
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