You Can Steal My Wife, But You Can't Steal My Water

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Decades spent watching their lifeblood flow away have made Coloradoans tightfisted about sharing what's left. The state is split down the middle geographically and politically by the Front Range of the Rockies, which rises up like a curtain from the flat stage of the plains. "Eighty -five percent of the water flows down the western half of the Rockies, and go percent of the population lives on the eastern half," explained Reeves Brown, executive director of Club zo, a coalition that defends western counties against water grabs. When cities to the east like Denver raid the west, they are helped =some might say encouraged —by Colorado's water law, one of the most market - oriented in the nation. Captured in the colloquial phrase "first in time, first in right," the law is known to local lawyers as "pure prior," shorthand for prior appropriation. The doctrine treats a river as a well where parched people line up with buckets. Whoever gets to a water source first gets the first dip in the well every year thereafter. The person who is second in line gets perpetual rights to the second dip, and soon. During dry years when there isn't enough water to fill every bucket, the front -of -the -liners (senior water rights holders, in legal parlance) are under no obligation to cut back on their take. They get their share of water before anyone else gets any. Prior appropriation grew out of the mid -igth- century gold rushes, when miners in Colorado ran long flumes across the land that separated them from a stream, so that they could draw out water to separate gold from gravel. The doctrine has much more in common with the basic principle of mineral rights — first to the stake gets the claim —than it does with riparian, or river, law, which dates to the fifth century. Riparian law's core principle is that only the owners of land adjacent to a stream may take its water. In other words, if you don't own property on a riverbank, you're out of luck. When American courts were allo- cating water rights in the igth century, riparian law worked well in the East, where rainfall was abundant and irrigation that came from river water was rarely needed. But it made no sense in the and West. On the rairiless plains of eastern Colorado, a set- tler either pumped water from a river to his crops, or starved. Granting water rights only. to streamside property owners would have limited farms to the land strung along rivers, amid deserts of unused land. The miners and farmers of the Rockies. came up with an extraordinary solution. They declared that when a person who owned a claim in Colorado Territory didn't have a stream run- ning through his property, "he shall be entitled to a right of way through the farms or tracts of land which lie between him and said stream" In other words, if Farmer Jones's property lay between the river and Farmer Smith's land, Smith could dig a ditch through Jones's land to get to the water. The gold miners had built wooden flumes across federal land; the Colorado law, by contrast, said you could cross over any land — public or private. "Look at that law!" exclaimed Justice Gregory Hobbs of the Col- orado Supreme Court at his office in Denver when I met with him legalaffaszs 49