| OCR Text |
Show 723 is held that water rights in Colorado are not based upon the filing of maps or statements and that the lack thereof does not invalidate the appropriations; the question as to whether or not the documents were filed being a matter of evidence only and not the substance of the appro- priation. "A compliance with the statutory requirements in question is not strictly a part of the act of appropriation; the appropriation is com- pleted when the ditch or conduit is constructed and the water is di- verted therethrough and applied to a beneficial use. The filing of maps and statements under our irrigation statutes is a means of fixing and holding the rights which a party already has acquired by appro- priation and are only prima facie evidence of the appropriation." 64 The riparian doctrine never has been a part of the water law of Colo- rado. The repudiation of that doctrine was foreshadowed in very early cases,65 and became specific when the supreme court declared, in 1882, that the common-law doctrine of riparian rights was inapplicable to Colorado and that the doctrine of appropriation had existed from the time of the earliest appropriations of water within the boundaries of the State.66 True, there were some later observations by the same court concerning common-law rights of riparian owners to take water for domestic purposes,67 but the statements to that effect in both of the cited cases were dicta; in neither case was there an actual adjudication of a water right based upon ownership of riparian land. Also, shortly thereafter, a Federal court decided that insofar as diversions of water from streams for manufacturing, mining, or mechanical purposes were concerned, the riparian doctrine was the law in Colorado; 68 but that decision was expressly disapproved in a later decision by a higher Federal court as being not in accord with the decisions of the Colorado Supreme Court and as being not sustained by the better reasoning.69 "Archuleta v. Boulder & Weld County Ditch Co., 118 Colo. 43, 53, 192 Pac. (2d) 891 (1948). • Yunker v. Nichols, 1 Colo. 551, 553-555, 570 (1872) j Schilling v. Rominger, 4 Colo. 100, 103, 104 (1878). " Coffin v. Left Hand Ditch Co., 6 Colo. 443, 446-447 (1882). m Montrose Canal Co. v. Loutsenhizer Ditch Co., 23 Colo. 233, 237, 48 Pac. 532 (1896); Broadmoor Dairy & Live Stock Co. v. Brookside Water & Im- provement Co., 24 Colo. 541, 546, 550, 52 Pac. 792 (1898). "Schwab v. Beam, 86 Fed. 41, 43-44 (C. C. D. Colo., 1898). "Snyder v. Colorado Gold Dredging Co., 181 Fed. 62, 68 (C. C. A. 8th, 1910). The court stated, at 181 Fed. 65: "The common-law doctrine in re- spect of the rights of riparian proprietors in the waters of natural streams never has obtained in Colorado. From the earliest times in that jurisdiction the local customs, laws, and decisions of courts have united in rejecting that doctrine and in adopting a different one which regards the waters of all natural streams as subject to appropriation and diversion for beneficial uses and treats priority of appropriation and continued beneficial use as giving the prior and superior right." The United States Supreme Court, in Wyoming v. Colorado, 259 U. S. 419, 459 (1922), stated with respect to Colorado and Wyoming: "The common-law rule respecting riparian rights in flowing water never obtained in either State." |
