Irrigation and Drainage [pp. 19-32]

1886.] Irrigation and Drainage. 25
any extended diversion of water, and its con- use thereof, is inapplicable to Colorado. Imperative
veyance to points from which it could not necessity, unknown to the countries which gave it
be restored to the stream." birth, compels the recognition of another doctrine, in
conflict therewith."'
Colorado has put into its constitution a conflict therewith."
provision recognizing the priority of right to It is a matter of extreme regret that a few
water by priority of appropriation. Like more of the members of our own Supreme
California it is arid, and needs irrigation to Court could not see judicially, or give due
fertilize its fields. It has already solved this weight to, what the Supreme Court in Coloquestion, as it was proposed by the recent rado so clearly sees and applies, viz: that it
State Irrigators' Convention to solve it, by or- has been the policy of the National and
ganic law. But the Supreme Court of that State governments to encourage the diverState had decided that the doctrine of ripa- sion and use of water for agriculture; that
rian rights had no applicability to Colorado vast expenditures of time and money have
even before the adoption of the constitution- been made in reclaiming and fertilizing, by
al provision; because imperative necessity, irrigation, portions of our unproductive terriunknown to the countries in which the com- tory; that houses and villages have been
mon law originated, compelled Colorado to built, costly, permanent improvements made,
recognize appropriation. The reasoning of and hundreds of thousands of acres rendered
that court is so just, its recognition ocf the imniensely valuable, which else would have
great necessities of the State so clear, and remained desert, with the understanding that
the parallel of circumstances with those of appropriations of water would be protected,
Calitornia so exact, that it is well to cite the and that the denial of the right of appropridecision at some length: ation destroys this vast property.
"It is contended that the common law principles The Supreme Court of Nevada, in an early
of riparian proprietorship prevailed in Colorado until case, sanctioned the doctrine of riparian
i876, and that the doctrine of priority of right to rights. But it has since retreated from that
water by priority of appropriation thereof was first ground, and approved the doctrine of approrecognized and adopted in the Constitution. But we riation holding that priority of appropria priation, holding that priority of app~ropriathink the latter doctrine has existed since the date of *
the earliest appropriations of water within the boun- tion is a test of superiority of right. Its
daries of the State. The climate is dry, and the soil, views as to the great system of anti-ripariwhcn moistened only by the usual rainfall, is'arid and anism, built up in the early days in this
unproductive; except in a few favored sections, arti- State, and the sanction it received from the
ficial irrigation for agriculture is an absolute necessity.
*courts, are expressed as follows:~ " In all the
Water in the various streams thus acquires a value cot a es a ors the
unknown in moister climates. Instead of being a Pacific Coast States and Territories... the
mere incident to the soil, it rises, when appropriated, doctrines of the common law, declaratory of
to the dignity of a distinct usufructuary estate or right the rights of riparian proprietors respecting
of property. It has always been the policy of the the use of running waters, were held to be
National, as well as the Territorial and State Gov- *1