WSPC00982

• File Number: 8080
• Description: Section D General Interstate Litigation - Colorado Not a Party
• State: CO
• Basin: Statewide
• Date: 1/1/1891
• Author: Unknown
• Title: Colorado Reports Volume 16-P 61 - 077-91-91450 - Strickler Vs City of Colorado Springs
• Water Supply Pro - Doc Type: Report/Study

001110

Plaintiff prays that defendant be enjoined from purohasing water-rights
from said Fountain oreek, eto.. and for general relief. The oourt below upon
a final hearing denied the relief sought by the plaintiff and entered judgment
aooordingly.

Mr. T. A. McMORRIS, for plaintiff in error.

Mr. WILLIAM HAi"UlISON, for defendant in error.

l!r. JUSTICE HAYT delivered the opinion of the oourt.

The points upon which a deoision is asked as given upon the oral argument
may be stated as followsl"

1. .Are the rights of a junior appropriator of' water from a tributary strewn
subjeot to the rights of a prior appropriator from the main stream below?

2. Can the priority of a farmer to the use of water for agrioultural pur-
poses be transf'erred by sale to a oity for oity purposes so that it may suo-
oeed to the rights of the original appropriator?

3. To the extent the use made by the oity is purely for domestic purposes.
has it the right. without oompensation, to take waters theretofore appropriated
for agricultural purposes?

,I

That an affirmative answer IllUst be given to the first of the above questions
seems obvious. A negative answer would Wipe out the dootrine of priorities
upon whioh our elaborate system is based--a system generally recognized as wnong
the best ;yet devised. and upon whioh vast property rights have been built.

The fundamental prinoiple of this system is that priority in point of time
gives superiority of right among appropriators for like benefioial purposes.
To now say that an appropriator from the main stream is subjoct to subsequent
appropriation from its tributaries would be the overthrow of the entire dootrine.
All large streams are dependent upon tributaries for a supply of water. To out
off' the water from such tributaries would be to destroy the oapaoity of the
stream to the injury of those below. It would result in ruinous and useless
expenditures of money in a raoe between rival olaimants in the extension of
ditohes toward the souroe of water supply, and reward suocess at the expense of
the rights of prior appropriators.

.

But oounsel saYI "The waters ef the Ruxton lose their identity upon reaohing
the Fountain. For all purposes to the appropriator, below the point of oonfluenoe
Ruxton oreek does not exist; it oannot be identif'ied. That being so, how can
it be said by the appropriator upon the Fountain oreek that the appropriator upon
Ruxton oreek has taken his water?" It is shawn by the stipulation that Ruxton
oreek is fed and formed by a number of streams ooming together above the plaoe
of intake of defendant's pipe line. Nevi, if plaintiff in error be oorreot, and
the appropriator of water from a stream be held to have no claim upon the water
of the tributaries of that stream, then defendant's vlater supply is liable to be
cut off by settlers above at any time-a oonclusion so manifestly unjust it IllUst
be disoarded. It is not a question of identity, as counsel seem to suppose. but

'.

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