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Show NATURAL CHANNELS AND RESERVOIRS 601 same ditch-remove his water from the ditch and divert it at another point, for use at another place, or by other means, or for some other purpose of use.44 A Colorado statute first enacted in 1879, and still in effect, provides that in time of shortage, when there is not enough water for all appropriators supplied from any ditch or reservoir, all owners and consumers shall receive a share of the available supply in proportion to the quantity which each would have received had there been no deficiency.45 However, the Colorado Supreme Court held that the several priorities served by a single ditch are protected by the constitution and cannot be interfered with by legislative action. "The most favorable view that can be taken of the statute is that in times of scarcity of water it may be resorted to to compel the prorating of water among consumers having priorities of the same, or nearly the same, date."46 There is no vested right by one ditch cotenant to rotation in use of water with another, in the absence of contract therefor or of long-continued custom.47 NATURAL CHANNELS AND RESERVOIRS Use of Natural Channel Three Interrelated Functions This topic embraces three related, but to a greater or lesser extent distinguishable, uses. These are: (1) Conveyance of water in the natural channel, which is substituted for a major or minor fraction of a ditch length, and which is usually dry and therefore without complications of conflicting appropriative rights of others. (2) Discharging one's appropriated water into a natural watercourse and commingling it there with flowing water to which existing rights attach. The purpose is to use the watercourse as a conduit for conveying the water to a downstream point at which an adjusted comparable quantity is diverted for distribution and use. (3) Exchange or substitution of water, which involves either (a) discharge of water into a stream and diversion of an adjusted comparable quantity from the stream either above or below the 4*Telluride v. Davis, 33 Colo. 355, 359-360, 80 Pac. 1051 (1905);Hallettv. Carpenter, 37 Colo. 30, 32, 86 Pac. 317 (1906); Ironstone Ditch Co. w.Ashenfelter, 57 Colo. 31,40, 140 Pac. 177 (1914); Compton v. Knuth, 117 Colo. 523, 526, 190 Pac. (2d) 117 (1948). 45Colo. Laws 1879, p. 79, Rev. Stat. Ann. § 148-3-13 (1963). "Larimer & Weld In. Co. v. Wyatt, 23 Colo. 480, 491, 48 Pac. 528 (1897). "It may therefore be considered as stare decisis in this jurisdiction that there may be circumstances in which water consumers from the same ditch may not be compelled to pro-rate with each other." Farmers' High Line Canal & Res. Co. v. White, 32 Colo. 114, 118-119, 75 Pac. 415(1904). "Brighton Ditch Co. v. Englewood, 124 Colo. 366, 374, 237 Pac. (2d) 116 (1951). |
