Laserfiche WebLink
appropriate to accomplish without waste the purpose for which the appropriation could be <br />lawfully made, i.e., recreational boating. Mr. Lacy, Golden course designer, stated that there are <br />no low flows in which the course cannot be used. (Record_V.4, p. 184.) There is ample evidence <br />in the record demonstrating that Golden can achieve its lawful purpose, recreational boating, at <br />flows of 30 c.f.s. Those are the only amounts that are reasonable and appropriate under <br />reasonably efficient practices to accomplish without waste the purpose for which the <br />appropriation was lawfully made. <br />D. Maintaining a Flow is a Riparian Concept Thus L;nrecomizable by the Prior <br />Appropriation Doctrine. <br />In reviewing Golden's claim for in- channel recreational boating, the Court needs to <br />consider not only the definitions of the words "diversion" and "beneficial use," but also the <br />circumstances that established the prior appropriation doctrine in Colorado and the consequences <br />of recognizing Golden's claim. <br />In 1881, Oliver Wendell Holmes famously declared: "The life of the law has not been <br />logic; it has been experience." O.W. Holmes, The Common Law (1881). A year later, in a justly <br />celebrated opinion, this Court illustrated the accuracy of Holmes' insight: <br />It is contended by counsel for appellants that the common law <br />principles of riparian proprietorship prevailed in Colorado until <br />1876, and that the doctrine of priority of right to water by priority <br />of appropriation thereof was first recognized and adopted in the <br />constitution. But we think the latter doctrine has existed from the <br />date of the earliest appropriations of water witnin the boundaries of <br />the state. The climate is dry, and the soil, u111y ., <br />the usual rainfall, is and and unproductive; except in a few favored <br />sections, artificial irrigation for agriculture is an absolute necessity. <br />Water in the various streams thus acquires a value unknown in <br />moister climates. Instead of being a mere incident to the soil, it <br />rises, when appropriated, to the dignity of a distinct usufructuary <br />estate, or right of property. It has always been the policy of the <br />national, as well as the territorial and state governments, to <br />encourage the diversion and use of water in this country for <br />agriculture; and vast expenditures of time and money have been <br />20 <br />