Brief Fact Summary. Plaintiff owned land, which was irrigated by Left Hand creek through a series of ditches, which placed water in the Left Hand creek by diverting water from the St. Vrain creek to the James creek. The Defendants owned land which was near the St. Vrain creek below the diversion point and which was irrigated from the St. Vrain. During a drought in 1879 the water stopped flowing to the Defendants’ lands and they went onto the lands of the Plaintiff to tear up the dams.
Synopsis of Rule of Law. The right to water is established by the priority of appropriation of the water, and not by riparian proprietorship.
Issue. What is the proper legal rule to decide this case?
Held. The right to water by priority of appropriation. Affirmed.
The right to water by priority of appropriation has always been the rule in Colorado. This rule is necessary because of the arid climate in Colorado and the fact that the rule of riparian proprietorship would not work well where the rainfall is scarce.
The doctrine of priority of appropriation for agriculture is evoked by the imperative necessity for artificial irrigation of the soil. It would be inequitable to deprive one of the benefit of the rule simply because he has, by expending a large amount of time and money, carried the water from one stream over an intervening watershed and cultivated land in the valley of another watershed.
The Defendant’s right to the water is established by his prior appropriation of water from the St. Vrain creek.
Discussion. The doctrine of prior appropriation, is recognized in western states and in Mississippi, which generally allows an earlier user of water the right to the water before allowing later users a right to the water. Whereas, the doctrine of riparian rights, is generally recognized elsewhere and allows equal rights between riparian users.