Chapter 2 - § 2.4 • COLORADO STATEHOOD

• Jurisdiction: Colorado

§ 2.4 • COLORADO STATEHOOD

Colorado sought and gained admission to the Union in 1876. Upon achieving statehood, Colorado incorporated the fundamental principles of the prior appropriation system in the Colorado Constitution, Art. XVI, §§ 5 and 6, which provide:

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.

6. The right to divert the unappropriated waters of any natural stream to beneficial uses 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 preference over those using the same for manufacturing purposes.

Section 6, on its face, appears to establish a separate priority system based on the type of use being made of the water. The Colorado Supreme Court rejected that interpretation in Town of Sterling v. Pawnee Ditch Co.,²³ explaining:

Section 6, art. XVI, of the constitution states that those using water for domestic purposes shall have the preference over those claiming for any other purpose, but this provision does not entitle one desiring to use water for domestic purposes, as intended by the defendant town of Sterling, to take it from another who has previously appropriated it for some other purpose, without just compensation. Rights to the use of water for a beneficial purpose, whatever the use may be, [are] property, in the full sense of that term, and are protected by § 15, art. II, of our constitution, which says that "private property shall not be taken or damaged for public or private use without just compensation."

In this dry and arid region, a right to the use of water appropriated for beneficial purposes is of great value because of the many enterprises carried on which are dependent upon its use. . . . That a city or town cannot take water for domestic purposes which has been previously appropriated for some other beneficial purpose, without fully compensating the owner, is so clear that further discussion seems almost unnecessary.²⁴

Thus, the priorities of § 6 do not affect the allocation of water under the priority system.

Shortly after statehood, the Colorado Supreme Court emphatically declared that the doctrine of riparian rights had never been the law in Colorado:

We conclude, then, that the common law doctrine giving the riparian owner a right to the flow of water in its natural channel upon and over his lands, even though he makes no beneficial use thereof, is inapplicable to Colorado. Imperative necessity, unknown to the countries which gave it birth, compels the recognition of another doctrine in conflict therewith. And we hold that, in the absence of express statutes to the contrary, the first appropriator of water from a natural stream for a beneficial purpose has, with the qualifications contained in the constitution, a prior

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