The central feature of Colorado water law is the Colorado doctrine of prior appropriation of water rights. This use of water arose through the practice of farmers diverting water from streams and using it to irrigate their land, often land which was not contiguous to the stream or "riparian". The earliest uses were by early Hispanic settlers in what is now Costilla County and Conejos County. This practice made possible the growing of crops in the arid lands that were not directly adjacent to streams. Another area where diversion of water was practiced was in the mining districts of early Colorado where water was diverted for the purpose of washing gravel or crushed rock for gold.
The legal validity of practice of appropriating water by diversion was confirmed by the Colorado Supreme Court in the leading case of Coffin v. Left Hand Ditch Co. 6 Colo. 443 (1882) where the riparian doctrine was rejected and the appropriation doctine confirmed as being in use from the ealiest uses of water in Colorado. The challenge to the appropriation doctrine was made by a litigant whose riparian lands were naturally watered by an adjacent stream. The other party diverted water upstream. The Court emphasised the practical difficulties of farming in an arid land and treated water acquired by prior appropriation as a protected property right.
The right to appropriate water is set forth in the Colorado Constitution, article XVI, section 6, adopted in 1876. which provides "The right to divert the unappropriated waters of any natural stream to beneficial use shall never be denied." One of the issues in Coffin v. Left Hand Ditch Co. was whether this constitional provision represented adoption of the appropriation doctine at that time or represented a ratification of prior appropriations. It was held to ratify prior appropriations.
The Colorado ConstitutionEdit
The full text of sections 5 and 6, article XVI of the Colorado Constitution reads:
Section 5. "The water of every natural stream, not heretofore appropriated, within the state of Colorado, is hereby declared to be the property of the public, and the same is dedicated to the use of the people of the state, subject to appropriation, as hereinafter provided."
Section 6. "Diverting unappropriated water--priority preferred uses. The right to divert the unappropriated waters of any natural stream to beneficial use shall never be denied. Priority of appropriation shall give the better right as between those using the water for the same purpose; but when the waters of any natural stream are not sufficient for the service of all those desiring the use of the same, those using the water for domestic purposes shall have the preference over those claiming for any other purpose, and those using the water for agricultural purposes shall have the preference over those using the water for manufacturing purposes."
The meaning of section 6 has been interpreted by the Colorado courts in a series of cases. The first Strickler v. City of Colorado Springs 16 Colo. 61, 26 P. 313 (1891) involved an attempted appropriation, without compensation, of water that had previously been appropriated for agricultural purposes. It was held that as the affected water had been appropriated prior to the adoption of the Constitution in 1876 it was a vested property right so not subject to any effect Section 6 might have. Nearly all water in the streams of Colorado had been appropriated before 1876. It was held that acquisition of such water rights would have to be by condemnation which, by statute, a municipality was entitled to do.
The second case, Armstrong v. Larimer County Ditch Co. 1 Colo. App. 49, 27 P. 235 (1891), which involved a conflict between a junior right for domestic use versus a senior right for irrigation confirmed the prospective application of whatever meaning section 6 had. If it had a meaning it could only be applied to rights acquired after the adoption of the Constitution in 1876.
The third case, Montrose Canal Company v. Loutsenhizer Ditch Co. 23 Colo. 233, 48 P. 532 (1896), considered the question for a senior right acquired after 1876. In a rare and never repeated use of the language of the riparian doctrine, the Court held that the right to domestic use of water in section 6 applied only to domestic users who held riparian lands, "such as the riparian owner has at common law to take water for himself, his family, or his stock and the like", not to water diverted by "large canals".
The fourth case, Town of Sterling v. Pawnee Ditch Extension Co. 42 Colo. 421, 94 P. 339 (1908) involved water rising from natural springs appropriated in 1898 for domestic and irrigation purposes which the Town of Sterling, having bought the land on which the springs arose, wished to pipe to the town for domestic use, without paying compensation. This position was rejected as the appropriated water was a property right, "in the full sense of that term."
The fifth case, Black v. Taylor 128 Colo. 449, 264 P.2d 502 (1953), clarified the language used and the questions raised by Montrose Canal Company v. Loutsenhizer Ditch Co. affirming that water could be appropriated and diverted for domestic purposes even if one was not a riparian owner provided compensation was paid to prior appropriators. No Colorado case has addressed the question of whether an individual appropriator of water for domestic use could prevail by offering to compensate a senior appropriator. There is some thought it might be possible, but the right to condemn property is ordinarily granted explicitly by statute, not implied, as it must be in this case, from a constitutional provision, see the discussion in Vranesh, Revised Edition in the chapter on condemnation.
Reference and further readingEdit
- George Vranesh, Colorado Water Law Vranesh Publications (1987), Revised Edition, University Press of Colorado (2000), ISBN 0870815431, 2001 supplement ISBN 0870816497 2003 supplement (March, 2004), ISBN 0870817558
- Trout, Raley, Montaño, Witwer & Freeman, P.C., Acquiring, Using, and Protecting Water in Colorado 2nd edition, Bradford Printing (2004), trade paperback, 288 pages, ISBN 1883726980
- "It’s Now Legal to Catch a Raindrop in Colorado" article by Kirk Johnson, in The New York Times June 28, 2009