OCR Text |
Show 724 Notwithstanding these few inconsistencies, a long and unbroken line of decisions of the State courts of Colorado has followed the appropriation doctrine exclusively in settling controversies over rights to the use of stream waters, and with the one exception above noted the Federal courts have followed the same course; the question of repudiation of the riparian doctrine so far as Colorado is concerned having been settled definitely a long time ago.70 The law with respect to the use of waters of definite underground streams, of the subflow of surface streams, and of ground waters tribu- tary to watercourses, apparently is well settled in Colorado-rights to the use of all such ground waters are governed by the doctrine of prior appropriation. This excludes percolating waters occurring naturally in the ground but not tributary to watercourses, concerning which it may be reasonably assumed-but only assumed-that the appropriation doc- trine applies. The rules are as follows: Waters flowing in well-defined and known underground channels the course of which can be distinctly traced are governed by the same rules as the waters of streams flowing upon the surface.71 The underflow is as much a part of a watercourse as is the surface flow, and the rights of prior appropriators on the stream are protected against such inter- ference with the underflow as would impair the proper exercise of their rights.72 All sources of supply of a stream, whether they reach it by percolation through the soil, by subterranean channels, or by surface channels, are a part of the stream system and are open to appropriation, subject to prior appropriative rights that have attached to the stream.73 A statute declares that the utilization of waste, seepage, and spring waters shall be governed by the same laws of priority of right as the utilization of water of running streams; "provided, that the person upon whose lands the seepage or spring waters first arise, shall have the prior 70 In Sternberger v. Seaton Min. Co., 45 Colo. 401, 402-404, 102 Pac. 168 (1909), plaintiffs asserted common-law riparian rights with respect to lands acquired prior to the adoption of the State constitution and before defendant's appropriation was made. The supreme court stated: "At this late day it would seem to us, as it evidently did to the trial court, idle to make such contention in this state. The latter has long ago been set at rest. * * * The doctrine in this state that the common-law rule of continuous flow of natural streams is abolished, is so firmly established by our constitution, the statutes of the terri- tory and the state, and by many decisions of this court, that we decline to reopen or reconsider it, however interesting discussion thereof might otherwise be, and notwithstanding its importance." nMedano Ditch Co. v. Adams, 29 Colo. 317, 326, 68 Pac. 431 (1902). " Platte Valley Irr. Co. v. Buckets Irr., Mill. & Improvement Co., 25 Colo. 77, 82, 53 Pac. 334 (1898); Buckets In., Mill. & Improvement Co. v. Farmers' Independent Ditch Co., 31 Colo. 62, 71, 72 Pac. 49 (1903). wMcClellan v. Hurdle, 3 Colo. App. 430, 434, 33 Pac. 280 (1893); In re German Ditch & Res. Co., 56 Colo. 252, 268, 271, 139 Pac. 2 (1913); Faden v. Hubbell, 93 Colo. 358, 368-369, 28 Pac. (2d) 247 (1933). |