| OCR Text |
Show DIVERSION, DISTRIBUTION, AND STORAGE WORKS 597 The court of appeals recognized the beneficial effect of resorts, such as the one owned by complainant, in promoting health by affording rest and relaxation, but questioned the basing of an appropriation of water on the continued natural falls and flow of a stream. Complainant was not entitled to continuance of the falls "solely for their scenic beauty. The state laws proceed upon more material lines." All the water could not be held for the scant vegetation lining the banks, but must be used more efficiently by applying it to the land. If water is appropriated without diverting it from the stream, as is permissible under some circumstances in Colorado, such use must not be unnecessarily or wastefully excessive. The trial court was criticized for basing its decision on this branch of the case largely on the artistic value of the falls, and for making no inquiry into effectiveness of such use of the water as compared with the customary methods of irrigation. Accordingly, the decree was reversed and remanded.30 Idaho legislation authorizes and directs the Governor to appropriate, in trust for the people, all or so much of the unappropriated water of certain lakes as may be necessary for their preservation for scenic beauty, health, recreation or other specified purposes.31 The legislation provides, among other things, that no proof of completion of any works of diversion shall be required.32 Colorado legislation authorizes river conservancy districts to "file upon and hold for the use of the public" sufficient water to maintain a constant streamflow to preserve fish and for use in retaining ponds for fish propa- gation.33 However, the Colorado Supreme Court held that water may not be so appropriated without a diversion of water from the stream. Among other things, the court said: There is no support in the law of this state for the proposition that a minimum flow of water may be "appropriated" in a natural stream for piscatorial purposes without diversion of any portion of the water "appropriated" from the natural course of the stream. By the enactment of C.R.S. 1963, 150-7-5(10) the legislature did not intend to bring about such an extreme departure from well established doctrine, and we hold that no such departure was brought about by said statute.34 "Empire Water & Power Co. v. Cascade Town Co., 205 Fed. 123, 128-129 (8th Cir. 1913). "Including (for three named lakes) transportation and commercial purposes. "Idaho Code Ann. § § 67-4301 to 67-4306 (1949). Regarding Oregon and Utah legislation concerning the withdrawal of water from appropriation, and Washington legislation concerning the establishment of minimum streamflows or lake levels for similar purposes, see the discussion in chapter 7 under "Methods of Appropriating Water of Watercourses-Restrictions and Preferences in Appropriation of Water-Preferences in Water Appropriation-Acquisition of rights to appropriate water-(3) Withdrawal of unappropriated water from appropriation." 33Colo. Rev. Stat. Ann. § 150-7-5(10) (1963). ^Colorado River Water Conservation Dist. v. Rocky Mountain Power Co., 158 Colo. 331, 406 Pac. (2d) 798, 800 (1965), citing earlier Colorado cases, an Idaho case, and a |
