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<br />001113 <br /> <br />. <br /> <br />and although with us such rights are acquired by appropriation rather than by <br />grant or presoription. as at oommon law, this oertaWy oannot affeot the right <br />of alienation. In Hurd v. Curtis, 7 Met. 54, several owners of mill privileges <br />had apportioned the water among themselves by a written agreement. By the terms <br />of this instrument one vr., the OWner of a fulling-mill, was entitled to a oer- <br />tain portion of the water for the use of his mill "or for other maohinery requiring <br />equal power," and it was held that the water-right was not ins!,!parably oonneoted <br />with the building or site at whioh the water was then used, but that it might <br />be used elsewhere. <br /> <br />. <br /> <br />In De Witt v. HaMey et al.. 4 Gray, 486. a deed had been given of land <br />bordering on a canal supplying mills, ''with the privilege of orossing to and <br />from and around the same, and of ereoting and using tenter bars in some con- <br />venient plaoe near the same. with the privilege also of drawing water from said <br />oanal at all times when it may be done without injury to the said mills, suf- <br />ficient for the purpose of a fulling-mill and shearing ma.ohine. but for no other <br />purposes Whatever." And it was held that the right to use the water for a <br />fulling-mill and shearing machine is not made apparent to the land grant, and <br />also that such right was not extinguished by the dam being subsequently taken <br />down by the owners of water-power at that spot and rebuilt in such a manner <br />as to overflow the land granted by the deed; the oourt being of opinion that <br />the rights of we.ter were not appurtenant to the partioular paroel of land <br />granted, but that the owner might use the water at any plaoe or in any manner <br />so long as the rights of others were not thereby impaired. Ilhen. therefore. <br />the land became subnerged. it was held that the right of the owner to use <br />the water at any other mill, or upon any other parcel of land situated on the <br />same dam, should be sustained. <br /> <br />, <br /> <br />There is no controversy in the present case in reference to the mode and <br />manner in which the right to the water may be conveyed. the contention extending <br />further baok. the claim being that the right oannot be conveyed at all, excClpt <br />with the land. The claim is not well founded. As we have seen. the right is <br />the subject of property and may be transferred accordingly. the sole limitation <br />being that the rights of others shall not be injuriously affected by such trans- <br />fer. <br /> <br />3. Has the city the right to take the water without compensation? This right <br />is claimed under seotion 6 of article 16 of our constitution. The section relied <br />upon and the preceding section read as followsl <br /> <br />"Sec. 5. The water of every natural stream not heretofore appropriated, <br />within the state of Colorado, is hereby declared to be the property of the publio, <br />and the same is dedicated to the use of the people of' the state, subject to <br />appropriation as hereinafter provided. <br /> <br />"Sec. 6. The right to divert the unappropriated waters of any natural <br />stream to beneficial uses shall never be denied. <br /> <br />. <br /> <br />"priority of appropriation shall give the better right as between those using <br />the water for the same purpose; but when the waters of any natural stream are <br />not sufficient for the service of all those desiring the use of the same, those <br />using the water for domestic purposes shall have the preference over those <br />claiming for any other purpose, and those using the water for agricultural pur- <br /> <br />"7- <br />