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Show 704 GROUND WATER RIGHTS IN SELECTED STATES Ground Waters not Tributary to a Surface Watercourse Appropriability of Nontributary Ground Water Prior to the passage of the Colorado Ground Water Management Act in 1965, ground water which was not tributary to a surface stream was not subject to any theory of appropriation. In 1951, the Colorado Supreme Court held that, in the absence of statutory direction, it would not be correct to hold that the nontributary waters, not a part or source of a natural stream, be- longed to the owner of the land under which they arose under the common law or English rule of absolute ownership.205 The court did not formulate any rule with regard to the ownership of these waters, but stated, "Whether in such case we should follow the California doctrine of reciprocal rights, developed from its law of riparian rights, or whether we should extend one step further our Colorado doctrine of first in time, first in right, need not now be deter- mined."206 In this case the town of Limon brought an action to condemn the land owned by defendants and sought the right to dig wells thereon and remove percolating waters located thereunder. Defendants' claim for compensation for the water hinged upon the ownership of the waters involved. The court held that the nontributary waters did not belong to the defendant company. The Colorado adjudication statute upon which the court based its holding was construed as not applying to wells drawing water from a closed artesian basin in which the waters were not tributary to any stream. The Colorado Supreme Court has held that the 1957 ground water law,207 which was applicable to all ground water, dealt only with prospective regula- tions and the manner of construction of wells in order to prevent waste. The court held:208 [T] he Ground Water Commission may declare a given area to be a "tenatively critical ground water district" and once an area has been declared within such designation it "shall thereupon become subject to the regulations prescribed in this Article." The regula- tions are that after such designation no new wells can be dug, or the water drawn from existing wells be increased unless the user shall "(g) Rules and regulations may be amended or changed from time to time within the same aquifer dependent upon the then existing and forecast conditions, facts and conditions as then known, and as knowledge of the aquifer is enlarged by operating experience." This 1971 amendment also provides for the publication of the proposed rules and regulations and procedures for protesting such rules and regulations. 205Safranek v. Limon, 123 Colo. 330, 228 Pac. (2d) 975 (1951). 206228 Pac. (2d) at 978. See Whitten v. Coit, 153 Colo. 157, 385 Pac. (2d) 131, 135 (1963). 207Colo. Laws 1957, ch. 289, p. 863, Rev. Stat. Ann. § 148-18-1 et seq. (1963). 208 Whitten v. Coit, 153 Colo. 157, 385 Pac. (2d) 131 (1963). |
