Trial Brief (2) - Laserfiche WebLink

Home Browse Search

Colorado has long recognized the diversion requirement for appropriation. The Colorado Constitution guarantees "[t]he right to divert the unappropriated waters of any natural stream to beneficial uses shall never be denied." Colo. Const., Article XVI, section 6 (emphasis added). The Colorado legislature has defined "diversion" or "divert" rf" [R]emoving water from its natural course or location, or controlling water in its natural course or location, by means of a ditch, canal, flume, reservoir, bypass, pipeline, conduit, well, pump, or other structure or device.... Section 37 -92- 103(7), C.R.S. (2001). In 1883, the Colorado Supreme Court noted that in order to get an appropriation, one did not need to necessarily use a ditch divert water, as long as they divert the water for beneficial use. Thomas v. Guiraud 6 Colo. 530, 533 (1883). The Court recognized that such diversion could occur by dams and "other contrivances."' Id. at 533. Less than three years later, the Court upheld a water appropriation by storage in the streambed, provided that the appropriator divert the water from the streambed at a future date. Larimer Co. v. Luthe 8 Colo. 614, 9 P. 794, 796 (1886). Both Guiraud and Luthe required a diversion resulting in the water's removal from the stream, even if the was not made by conventional means and not "at the instant." ' "If a dam or contrivance of any kind will suffice to turn water from the stream and moisten the lands sought to be cultivated, it is sufficient, though no ditch is needed or constructed." 6 Colo. at 530. 2 "While a diversion must of necessity take place before the water is actually applied to the irrigation of the soil, the appropriation thereof is, in legal contemplation, made when the act evidencing the intent is performed. Of course such initial act must be followed up with reasonable diligence, and the purpose must be consummated without unnecessary delay." 9 P. at 796.