Chapter 2 - § 2.2 • TERRITORIAL LAWS

• Jurisdiction: Colorado

§ 2.2 • TERRITORIAL LAWS

The first legislative departure from the common law riparian doctrine in Colorado was the adoption of Colorado Territorial Laws 67-68 in 1861, addressing irrigation. In these laws, the Territorial Legislature made it legal to take water from streams to lands not abutting the waterway.⁹ These laws were not, however, a complete departure from the riparian system. They still seemed to infer that there might be riparian rights if the water user applied the water to agricultural uses.¹⁰

In 1864, the Territorial Legislature expressly recognized and confirmed the prior appropriation doctrine and rights to water that had been acquired thereby. This was accomplished by enacting a statute that stated "nor shall the water of any stream be diverted from its original channel to the detriment of any miner, millmen or others along the line of said stream, who may have a priority of right, and there shall be at all times left sufficient water in said stream for the use of miners and agriculturalists along said stream."¹¹

Colorado was the first state to formally adopt the prior appropriation system, which also became known as the Colorado Doctrine.¹² The doctrine contains four essential principles:

All surface and groundwater in Colorado is a public resource for beneficial use by public agencies and private persons; A water right is a right to use a portion of the public's water resources; Water rights owners may build facilities on the lands of others to divert, extract, or move water from a stream or aquifer to its place of use; and Water rights owners may use streams and aquifers for the transportation and storage of water.¹³

The Territory of Colorado adopted these principles as the rule of law in the 1860s, before Colorado became a state.¹⁴

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Notes:

^[9] Colo. Territorial Laws 67-68 (1861).

^[10] "A Survey of Colorado Water Law" (Mortimer Stone ed.), 47 Denv. L. J. 177, 233 (1970).

^[11] 1864 Colo. Sess. Laws 32.

^[12] "A...