WSPC01188

• File Number: 8064
• Description: Indian Water Rights
• State: CO
• Date: 1/1/1987
• Author: American Indian Reso
• Title: Tribal Water Management Handbook
• Water Supply Pro - Doc Type: Report/Study

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CHAPTER 3

Western State Water Law

3-1. THE ROOTS OF THE PRIOR APPROPRIATION SYSTEM

Mr. Irwin and Mr. Phillips were frustrated. They had not made the difficult
journey to California in order to spend their time in coun. They had come to strike it
rich, to hit the Mother Lode amidst the Sierra Nevada foothills. Nor did they wish to
payout their hard-earned gold into the pockets of lawyers arguing before the
California Supreme Coun. But that is what they found themselves doing in 1855;
because in order to flush the gold from the hillsides and to wash it from the
streambeds, these two miners needed water. And there was not enough of this
precious resource for both of them.

Irwin anived in the Gold Country first and proceeded to set up a claim that he
named "Irwin's Diggings." In the spring of 1851, he begandivening water through a
lengthy canal from the south fork of Poor Man's Creek to rinse the gold from his
diggings. In order to provide additional water to his operation, as well as to other
miners in the area, Irwin next constructed a dam in the creek. By 1852, Irwin had
established a lucrative operation, not only from the gold that was washed from the
distant hillsides by his waterworks, but also through his marketing of the excess canal
water to other miners. All was proceeding well until one morning Irwin awoke to
find that someone had ripped out pan of his dam. Phillips and his seven panners
recently had staked a claim along the banks of Poor Man's Creek-and they needed
the stream flow blocked by Irwin's dam.

The Riparian Argument

Phillips believed that he had a right to interfere with Irwin's canal and dam in
order to protect the flow of the stream through his downstream claim. This argument
reflected the riparian doctrine of water rights that recently had evolved in the eastern
states. "Riparian" means relating to the banks of water bodies, such as riparian land
and riparian vegetation. Under the riparian doctrine,landowners adjacent to a natural
stream have a right to use the flow, but only to the extent that such use does not
interfere with the concurrent right of downstream riparian landowners to use the
water also. This concept followed from the notion that if persons obtain land next to
a stream, they have a right to expect the stream to continue flowing and a right to use
ilS water to a reasonable extent. The riparian doctrine, however, precludes large-
scale consumption of water from the stream, since downstream landowners may