Colorado § 37-82-101 - Waters of natural surface streams subject to appropriation.

§ 37-82-101. Waters of natural surface streams subject to appropriation.

(1) The water of every natural stream, as referred to in sections 5 and 6 of article XVI of the state constitution, includes all the water occurring within the state of Colorado which is in or tributary to a natural surface stream but does not include nontributary groundwater as that term is defined in section 37-90-103. All nontributary groundwater shall be subject to such administration and use as the general assembly may provide by law. Such nontributary waters, when released from the dominion of the user, become a part of the natural surface stream where released, subject to water rights on such stream in the order of their priority.

(2) A stream system which arises as a natural surface stream and, as a natural or man-induced phenomenon, terminates within the state of Colorado through naturally occurring evaporation and transpiration of its waters, together with its underflow and tributary waters, is a natural surface stream subject to appropriation as provided in subsection (1) of this section.

Source: L. 69: R&RE, p. 1219, § 2. C.R.S. 1963: § 148-2-1. L. 79: Entire section R&RE, p. 1366, § 1, effective June 22. L. 85: (1) amended, p. 1166, § 4, effective July 1.

ANNOTATION

I. General Consideration.

III. Appropriation Under Instant Section.

I. GENERAL CONSIDERATION.

Law reviews. For article, "Principles and Laws of Colorado's Nontributary Ground Water", see 62 Den. U. L. Rev. 809 (1985). For article, "The Constitution, Property Rights and the Future of Water Law", see 61 U. Colo. L. Rev. 257 (1990).

Annotator's note. Since § 37-82-101 is similar to repealed § 148-2-1, C.R.S. 1963, § 147-2-1, CRS 53, and laws antecedent to CSA, C. 90, § 5, relevant cases construing these provisions have been included in the annotations to § 37-82-101.

Subsection (2) is of general and uniform applicability and does not constitute unconstitutional special legislation. Am. Water Development, Inc. v. City of Alamosa, 874 P.2d 352 (Colo. 1994).

Considering the history of Colorado, the nature of its soil and climate, its constitutional and legislative enactments, as well as the decisions of our courts, we have no hesitation in saying that our legislators used the term "irrigation" according to the common parlance of our people, in its special sense, as denoting the application of water to lands for the raising of agricultural crops and other products of the soil. Platte Water Co. v. Northern Colo. Irrigation Co., 12 Colo. 525, 21 P. 711 (1889).

The application of water to the growing of trees upon the streets of a city, or trees, shrubs, grasses, and the like, in public parks, is as much irrigation as the application of water to the growth of crops upon farm lands, and neither the farmer nor the municipality, using or seeking to use water from the same source, has any right superior to the other. City & County of Denver v. Brown, 56 Colo. 216, 138 P. 44 (1914).

Water diverted and used for the propagation of fish is devoted to a useful purpose and may be appropriated therefor. Faden v. Hubbell, 93 Colo. 358, 28 P.2d 247 (1933).

The former statute recognized two classes of appropriations for irrigations, one for ditches diverting water directly from the stream, and one for the storage of water, to be used subsequently. Handy Ditch Co. v. Greeley & Loveland Irrigation Co., 86 Colo. 197, 280 P. 481 (1929).

The impounding and piping of waters for the purpose of generating electricity to be sold as a commodity constitute a valid appropriation of waters under the constitution and laws of the state of Colorado, as they have been construed by the court of last resort of this state. Cascade Town Co. v. Empire Water & Power Co., 181 F. 1011 (D. Colo. 1910).

A contractual right to make use of water on specific lands is far different from the "water right" acquired by original appropriation, diversion, and application to a beneficial use. Green v. Chaffee Ditch Co., 150 Colo. 91, 371 P.2d 775 (1962).

II. RIGHT OF APPROPRIATION.

A. In General.

B. Necessity for Beneficial Use.

C. Nature of Right Acquired.

A. In General.

There are no riparian rights in Colorado as against a valid appropriation of water. Cascade Town Co. v. Empire Water & Power Co., 181 F. 1011 (D. Colo. 1910).

The doctrine of appropriation for agriculture is evoked by the imperative necessity for artificial irrigation of the soil. It would be an ungenerous and inequitable rule that would deprive one of its benefits simply because he has, by large expenditure of time and money, carried the water from one stream over an intervening watershed and cultivated land in the valley of another. Coffin v. Left Hand Ditch Co., 6 Colo. 443 (1882).

The right to the water in the streams of Colorado, by prior appropriation, antedated any legislation. It was the common law of the people; and legislation, both national and territorial, was but a recognition declaratory of the right as it had theretofore and then existed. Neither in any territorial or national legislation do we find any provision or declaration of rights to water by appropriation, or to be acquired in any other manner, for domestic use. It is first found in the constitution of the state. Armstrong v. Larimer County Ditch Co., 1 Colo. App. 49, 27 P. 235 (1891).

The common-law doctrine in respect of the rights of riparian proprietors in the waters of natural streams never had 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. Yunker v. Nichols, 1 Colo. 551 (1872); Coffin v. Left Hand Ditch Co., 6 Colo. 443 (1882); Platte Water Co. v. Northern Colo. Irrigation Co., 12 Colo. 525, 21 P. 711 (1889); Crippen v. White, 28 Colo. 298, 64 P. 184 (1901); Snyder v. Colo. Gold Dredging Co., 181 F. 62 (8th Cir. 1910).

In so choosing between these two inconsistent doctrines Colorado acted within the limits of her authority, first as a territory and then as a state, and her choice was recognized and sanctioned by congress, so far as the public lands of the United States were concerned. Cascade Town Co. v. Empire Water & Power Co., 181 F. 1011 (D. Colo. 1910).

The constitution has, to a large extent, obliterated the common-law doctrine of riparian rights and substituted in lieu thereof the doctrine of appropriation. Sieber v. Frink, 7 Colo. 148, 2 P. 901 (1883); Fuller v. Swan River Placer Mining Co., 12 Colo. 12, 19 P. 836 (1888); Farmers' High Line Canal & Reservoir Co. v. Southworth, 13 Colo. 111, 21 P. 1028, 4 L.R.A. 767 (1889); Strickler v. City of Colo. Springs, 16 Colo. 61, 26 P. 313 (1891); Combs v. Agricultural Ditch Co., 17 Colo. 146, 28 P. 966 (1892); Oppenlander v. Left Hand Ditch Co., 18 Colo. 142, 31 P. 854 (1892).

This right to water by prior appropriation was recognized by the first general assembly of the territory and such rights continued to be recognized during the entire territorial existence. Armstrong v. Larimer County Ditch Co., 1 Colo. App. 49, 27 P. 235 (1891).

The doctrine of prior appropriation has become thoroughly entrenched in our jurisprudence, through constitutional and statutory provisions, and by a uniform and unbroken line of judicial decisions. Comstock v. Larimer & Weld Reservoir Co., 58 Colo. 186, 145 P. 700, 1916A Ann. Cas. 416 (1914).

It is said of the doctrine in this state that the common-law rule of continuous flow of natural streams is abolished, is so firmly established by the constitution, the statutes of the territory and the state, and by many decisions of the courts, that the supreme court declines to reopen or reconsider it, however interesting discussion thereof might otherwise be, and notwithstanding its importance. Cascade Town Co. v. Empire Water & Power Co., 181 F. 1011 (D. Colo. 1910).

The right to appropriate water and put the same to beneficial use at any place in the state is no longer open to question. Metro. Sub. Water Users Ass'n v. Colo. River Water Conservation Dist., 148 Colo. 173, 365 P.2d 273 (1961).

An appropriation is the intent to take accompanied by some open physical demonstration of the intent. Elk-Rifle Water Co. v. Templeton, 173 Colo. 438, 484 P.2d 1211 (1971).

The appropriation is, in legal contemplation, made when the act evidencing the intent is performed. Elk-Rifle Water Co. v. Templeton, 173 Colo. 438, 484 P.2d 1211 (1971).

When the individual, by some open, physical demonstration, indicates an intent to take, for a valuable or beneficial use, and through such demonstration ultimately succeeds in applying the water to the use designated, there is an appropriation. Elk-Rifle Water Co. v. Templeton, 173 Colo. 438, 484 P.2d 1211 (1971).

The required "first step" must consist of open work "on the land" in order that notice can be given to others of the intention of the appropriators. Elk-Rifle Water Co. v. Templeton, 173 Colo. 438, 484 P.2d 1211 (1971).

The requisite intent to appropriate does not have to precede or be contemporaneous with the acts which constitute the work on the land. What is required is that at some point in time the two requirements, the open physical demonstration and the requisite intent to appropriate, coexist. Elk-Rifle Water Co. v. Templeton, 173 Colo. 438, 484 P.2d 1211 (1971).

In order to make an appropriation, no new facilities need be contracted. Metro. Sub. Water Users Ass'n v. Colo. River Water Conservation Dist., 148 Colo. 173, 365 P.2d 273 (1961).

Even if no new ditch is built, a valid appropriation by means of an existing ditch could be made. Metro. Sub. Water Users Ass'n v. Colo. River Water Conservation Dist., 148 Colo. 173, 365 P.2d 273 (1961).

Large expenditures indicate a good faith effort to appropriate and put to beneficial use unappropriated waters of the state of Colorado. Metro. Sub. Water Users Ass'n v. Colo. River Water Conservation Dist., 148 Colo. 173, 365 P.2d 273 (1961).

River flow is as much affected by intercepting and diverting water, which otherwise would flow into it, as by directly withdrawing water from its channel. Peterson v. Reed, 149 Colo. 573, 369 P.2d 981 (1962).

The natural presumption is that all flowing water finds its way to a stream. Peterson v. Reed, 149 Colo. 573, 369 P.2d 981 (1962).

Drainage and seepage waters tributary to a natural stream cannot be independently appropriated by intercepting such waters before they commingled with the stream. Peterson v. Reed, 149 Colo. 573, 369 P.2d 981 (1962).

That the parties intercepted the waters of a drainage ditch before they emptied into a stream is immaterial where these waters were tributary to the stream and were subject to the prior appropriations thereon. Peterson v. Reed, 149 Colo. 573, 369 P.2d 981 (1962).

It is immaterial that waters of a drainage ditch are characterized as "artificially developed" where the findings of the trial court determined such waters to be tributary to a natural stream, the presumption being that all flowing water finds its way to a stream. Peterson v. Reed, 149 Colo. 573, 369 P.2d 981 (1962).

B. Necessity for Beneficial Use.

An appropriation, to be valid, must be manifested by the successful application of the water to the beneficial use designed or accompanied by some open, physical demonstration of intent to take the same for such use. Yunker v. Nichols, 1 Colo. 551 (1872); Schilling v. Rominger, 4 Colo. 100 (1878); Coffin v. Left Hand Ditch Co., 6 Colo. 443 (1882); Thomas v. Guiraud, 6 Colo. 530 (1883); Larimer County Reservoir Co. v. People ex rel. Luthe, 8 Colo. 614, 9 P. 794 (1885); Platte Water Co. v. Northern Colo. Irrigation Co., 12 Colo. 525, 21 P. 711 (1889); Woods v. Sargent, 43 Colo. 268, 95 P. 932 (1908); Comstock v. Larimer & Weld Reservoir Co., 58 Colo. 186, 145 P. 700 (1914).

From the first, the court has recognized and emphasized the idea that a priority could only be legally acquired by the application of the water to some beneficial use. Farmers' High Line Canal & Reservoir Co. v. Southworth, 13 Colo. 111, 21 P. 1028 (1889); Ft. Morgan Land & Canal Co. v. South Platte Ditch Co., 18 Colo. 1, 30 P. 1032 (1892).

Only by a diversion and beneficial use can a priority of right be acquired. Ft. Morgan Land & Canal Co. v. South Platte Ditch Co., 18 Colo. 1, 30 P. 1032 (1892).

In the absence of express statutes to the contrary, the first appropriator of water from a natural stream, for a beneficial purpose, has, with the qualifications contained in the constitution, a prior right thereto, to the extent of such appropriation. Schilling v. Rominger, 4 Colo. 100 (1878); Coffin v. Left Hand Ditch Co., 6 Colo. 443 (1882).

A diversion unaccompanied by an application gives no right. Ft. Morgan Land & Canal Co. v. South Platte Ditch Co., 18 Colo. 1, 30 P. 1032 (1892).

The right to water thus acquired is not in any way dependent upon the locus of its application to the beneficial use designed. Coffin v. Left Hand Ditch Co., 6 Colo. 443 (1882).

An appropriator of water is not entitled to have water turned out to him unless he can beneficially use it. City & County of Denver v. Brown, 56 Colo. 216, 138 P. 44 (1914).

The measure of the appropriation does not depend alone upon the amount diverted and carried, but the amount which is applied to a beneficial use must also be considered. Woods v. Sargent, 43 Colo. 268, 95 P. 932 (1908).

Where all witnesses agreed that in planning for a reasonable municipal water supply provision should be made for an adequate supply in years of minimum runoff and maximum consumption, and evidence disclosed large expenditures in good faith effort to acquire unappropriated waters of the state for present and anticipated needs, a finding by the trial court of lack of need was erroneous. Metro. Sub. Water Users Ass'n v. Colo. River Water Conservation Dist., 148 Colo. 173, 365 P.2d 273 (1961).

C. Nature of Right Acquired.

The right to water in this country by priority of appropriation is entitled to protection as well after patent to a third party of the land over which the natural stream flows, as when such land is part of the public domain; and it is immaterial whether or not it be mentioned in the patent and expressly excluded from the grant. Coffin v. Left Hand Ditch Co., 6 Colo. 443 (1882); Strickler v. City of Colo. Springs, 16 Colo. 61, 26 P. 313 (1891); Armstrong v. Larimer County Ditch Co., 1 Colo. App. 49, 27 P. 235 (1891).

A corporation which under its charter has the exclusive right to divert the waters of a nonnavigable stream, and the exclusive privilege of using and controlling the same for mechanical, agricultural, mining, and city purposes, cannot allow such right to remain in abeyance for a long series of years, and thereafter assert the same to the exclusion of those who have in the meantime acquired rights to the use of such stream by actual appropriation and use, in pursuance of the general laws of the state. Platte Water Co. v. Northern Colo. Irrigation Co., 12 Colo. 525, 21 P. 711 (1889).

A priority has been declared a property right, and as such is subject to sale and transfer. Ft. Morgan Land & Canal Co. v. South Platte Ditch Co., 18 Colo. 1, 30 P. 1032, 36 Am. St. R. 259 (1892).

Water rights acquired by appropriation for purposes of irrigation in this state cannot be held to be inseparably annexed to the land in connection with which such rights were acquired. Even though under certain circumstances such rights may be considered appurtenant to the land they may undoubtedly be severed from the land; and may be sold and conveyed separate and apart therefrom; and where such severance, sale and conveyance have taken place, as by the assignment and sale of stock representing water rights in an incorporated ditch company, a subsequent sale and conveyance of the land does not pass the title to such water rights. Oppenlander v. Left Hand Ditch Co., 18 Colo. 142, 31 P. 854 (1892).

Where a municipal corporation beneficially entitled to an irrigating ditch, and having present occasion for only part of the volume diverted, leases the excess to other consumers, its rights are preserved, as if it had actually applied the water to beneficial uses. City & County of Denver v. Brown, 56 Colo. 216, 138 P. 44 (1914).

Whether a deed to land conveys a water right in connection therewith depends upon the intention of the grantor to be gathered from the terms of the deed, or where it is silent on the subject, from the circumstances surrounding the transaction. Arnett v. Linhart, 21 Colo. 188, 40 P. 355 (1895); Gelwicks v. Todd, 24 Colo. 494, 52 P. 788 (1898); Travelers' Ins. Co. v. Childs, 25 Colo. 360, 54 P. 1020 (1898); Daum v. Conley, 27 Colo. 56, 59 P. 753 (1899); King v. Ackroyd, 28 Colo. 488, 66 P. 906 (1901); Bessemer Irrigating Ditch Co. v. Woolley, 32 Colo. 437, 76 P. 1053, (1904); City & County of Denver v. Brown, 56 Colo. 216, 138 P. 44 (1914).

After water has been appropriated and diverted from a natural stream into ditches, canals, or other artificial works, it becomes personal property and cannot be appropriated from such works. Tongue Creek Orchard Co. v. Town of Orchard City, 131 Colo. 177, 280 P.2d 426 (1955).

The original appropriators have the right, and in fact it is their duty, to prevent, as far as possible, all waste of the water which they have appropriated, in order that the others who are entitled thereto may receive the benefit thereof. Tongue Creek Orchard Co. v. Town of Orchard City, 131 Colo. 177, 280 P.2d 426 (1955).

Notwithstanding that it has been held that water when reduced to possession is personal property, a water right is something vastly different and, when perfected by appropriation and beneficial use of water, constitutes realty in the nature of a possessory right. Knapp v. Colo. River Water Conservation Dist., 131 Colo. 42, 279 P.2d 420 (1955).

Although a water right has attained to the dignity of real property, it cannot be said that it has attained to the dignity of an estate in fee or a freehold estate, it is still a possessory right, even after its consummation, and dependent on the continuous use of the water, and a failure to comply with this condition subjects the right to loss by abandonment. Knapp v. Colo. River Water Conservation Dist., 131 Colo. 42, 279 P.2d 420 (1955).

Beneficial use is the ultimate essential in the establishment of a water right, so it also is essential in the perpetuation of such right. Knapp v. Colo. River Water Conservation Dist. 131 Colo. 42, 279 P.2d 420 (1955).

An abandonment of property held by possessory title takes place instantly when the occupant deserts it without an intention of ever reclaiming it for himself, and careless of what thereafter may become of it. Knapp v. Colo. River Water Conservation Dist., 131 Colo. 42, 279 P.2d 420 (1955).

The law in Colorado on abandonment of water rights has been settled for many years. Knapp v. Colo. River Water Conservation Dist., 131 Colo. 42, 279 P.2d 420 (1955).

Where, by clear and convincing evidence, it is shown that for an unreasonable time available water has not been used, an intention to abandon may be inferred in the absence of proof of some fact or condition excusing such nonuse, the issue of intent in such instance becomes a question of fact for determination by the trial court from all the pertinent facts and surrounding circumstances, and where supported by competent evidence such finding will not be disturbed on review. Knapp v. Colo. River Water Conservation Dist., 131 Colo. 42, 279 P.2d 420 (1955).

"Abandonment" is a question of intent, nonuse alone being insufficient. Knapp v. Colo. River Water Conservation Dist., 131 Colo. 42, 279 P.2d 420 (1955).

In common usage, "to abandon" means to forsake; give up wholly; quit; when applied to a possessory right, such as is a water right, it means to discontinue, desert, relinquish, surrender, vacate, or give up; its opposite is to occupy, keep, maintain, use, preserve, and protect, and in water and irrigation matters it has no special, mystical, or different meaning than that well and generally recognized in all instances where are involved legal rights, the preservation and continuation of which are dependent upon possession, use, or occupancy. Knapp v. Colo. River Water Conservation Dist., 131 Colo. 42, 279 P.2d 420 (1955).

That the life of such right terminates and that it goes out of existence upon abandonment is a principle so well recognized that citation of authority to support it is unnecessary, but in the absence of expressed declaration, the difficult question for determination is whether, at any time following its acquisition, the owner of the right decided to quit, surrender, or give it up. Knapp v. Colo. River Water Conservation Dist., 131 Colo. 42, 279 P.2d 420 (1955).

Although the intent of the party charged with abandoning a water right, ditch, or other works, is a necessary element to work an actual abandonment upon his part, the intent to abandon may be implied, and an actual abandonment decreed by the court from the acts of the appropriator or owner, or from his failure to act; and that, too, in the absence of any direct statement by him that he has abandoned the right, even in the face of declarations of the party charged, that he still owns the right and has not abandoned it, without any act of possession or user of the right by him, the court will declare the right to be abandoned, should the facts and circumstances in the case show that there was an actual abandonment. Knapp v. Colo. River Water Conservation Dist., 131 Colo. 42, 279 P.2d 420 (1955).

Nonuse for an unreasonable period of time raises an implication or presumption of abandonment. Knapp v. Colo. River Water Conservation Dist., 131 Colo. 42, 279 P.2d 420 (1955).

To rebut the presumption of abandonment arising from such long period of nonuse, there must be established not merely expressions of desire or hope or intent, but some fact or condition excusing such long nonuse. Knapp v. Colo. River Water Conservation Dist., 131 Colo. 42, 279 P.2d 420 (1955).

Mere "expressions of desire or hope or intent" in abandonment cases are insufficient excuse for nonuse of a water right. Knapp v. Colo. River Water Conservation Dist., 131 Colo. 42, 279 P.2d 420 (1955).

Nonuse of a water right may not be justified by a showing that the owner intended to sell the property, or that it was kept listed with real estate brokers. Speculation on the market, or sale expectancy, is wholly foreign to the principle of keeping life in a proprietary right and is no excuse for failure to perform that which the law requires. Knapp v. Colo. River Water Conservation Dist., 131 Colo. 42, 279 P.2d 420 (1955).

Oral declarations of ownership, in the absence of showing of reasonable justification for nonuser, are insufficient to overcome the presumption of intent to abandon. Knapp v. Colo. River Water Conservation Dist., 131 Colo. 42, 279 P.2d 420 (1955).

Individuals in whom a prior right to the use of water is vested may lose such right by acquiescence in an adverse use thereof by another continued uninterruptedly for the statutory period. Greeley & Loveland Irrigation Co. v. McCloughan, 140 Colo. 173, 342 P.2d 1045 (1959); Nesbitt v. Jones, 140 Colo. 412, 344 P.2d 949 (1959).

III. APPROPRIATION UNDER INSTANT SECTION.

This section was an express statutory recognition of utilization of lands from natural overflow as one means of appropriation, as in the flooding of meadows by natural overflow without the use of any artificial means whatever. Humphreys Tunnel & Mining Co. v. Frank, 46 Colo. 524, 105 P. 1093 (1909); Broad Run Inv. Co. v. Deuel & Snyder Imp. Co., 47 Colo. 573, 108 P. 755 (1910); Cascade Town Co. v. Empire Water & Power Co., 181 F. 1011 (D. Colo. 1910).

This section included all lands in the immediate valley of the stream. Coffin v. Left Hand Ditch Co., 6 Colo. 443 (1882).

This section did not prohibit the diversion of water to the "detriment" of parties who might at some future period conclude to settle upon the stream; nor was the general assembly legislating with a view to preserving in such stream sufficient water for the "use" of settlers who might never come, and consequently never have use therefor. Coffin v. Left Hand Ditch Co., 6 Colo. 443 (1882).