USA > Colorado > History of Colorado; Volume I > Part 55
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RESERVOIRS
The construction of reservoirs in the state began as early as 1869, and, almost without exception, these are for the purpose of supplementing the direct diver-
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sions from the river, that is to supply deficiencies in the water supply during the periods of small flow, in the rivers, especially in the months of July, August and September.
There are also in the South Platte drainage about five hundred reservoirs with decrees finally entered and nearly as many more "conditional" decrees, the decreed appropriations in the South Platte drainage aggregating 1,136,000 acre feet, or very nearly the same as the capacity of the Pathfinder reservoir constructed by the United States Reclamation Service in Wyoming.
On the Arkansas watershed the reservoirs have an aggregate capacity of 730,000 acre feet.
On the Rio Grande River the aggregate capacity of the reservoirs is about 240,000 acre feet.
The reservoirs in the South Platte drainage were largely built before 1900, the years from 1880 to 1890 being the period of principal construction.
On the Arkansas River the reservoir construction was between 1895 and 1905 ; while on the Rio Grande the principal constructions have been since 1905.
BEGINNING OF WATER RIGHT LAWS
A history of irrigation in Colorado is incomplete without some mention of our laws and customs, and of the litigation concerning water and water rights. In the beginning the very simple idea was evolved that the first one to make beneficial use of water had the better right, and this simple rule is the funda- mental rule and the foundation of our irrigation law. Second and also funda- mental is that to protect the later comer against the earlier. Therefore, it was early provided that water should not be wasted or used excessively. Third, there appears in the fundamental Colorado practice the principle that one may do any- thing which does not detrimentally affect others. With these three simple rules in mind almost any problem which may be presented could be solved were it not for certain court decisions which have rather complicated these very simple rules.
In point of fact the Colorado law as it exists today is largely based upon court decisions, there not being a great many regulations or rules fixed by statute, and often, where so fixed the legislation has followed a court decision rather than preceded it. Prior to the organization of Colorado into a territory there was at least one act recognizing irrigation on the part of the Territory of Kan- sas, of which Colorado was then a part. As indicating the status of irrigation matters at that time and as showing that even at that early date the importance of irrigation was appreciated and the fundamental theory well understood, there is given below in full the act creating the Capitol Hydraulic Company which con- structed the Platte Water Company's ditch, now known as the City ditch.
INCORPORATION OF CAPITOL HYDRAULIC COMPANY
"AN ACT to incorporate the Capitol Hydraulic Company of Arapahoe County. "Be it enacted by the Governor and Legislative Assembly of Kansas Terri- tory :
"Section I. That A. C. Hunt, Charles H. Gratiot, John A. Clark, Thomas Pollock, Henry Allen, William M. Slaughter, Richard Sopris, A. P. Vasquez, Vol I-32
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A. Sagendorf, W. N. Byers, H. H. Scoville, Jr., J. A. McDonnell, F. Z. Salomon, John H. Wing, and their legal associates, are hereby created and declared a body corporate and politic, under the name and style of the 'Capitol Hydraulic Com- pany,' and by that name and style may sue and be sued, plead and defend in any court of this territory, may have perpetual succession, grant and receive by its corporate name, purchase and sell, hire and lease property, real, personal and mixed, in all lawful ways; may have a corporate seal, may alter the same at pleas- ure, and may make by-laws for the regulation of its business not inconsistent with the constitution of the United States and the laws of this territory.
"Section 2. Said company shall have the power and exclusive right to direct the water from the bed of the South Platte River at any point they may select between the Platte Canon and the mouth of Cherry Creek, and also to direct the water from the bed of Cherry Creek at any point within six miles of its mouth, and to conduct the water from both said streams by canal or ditch across the plains or intervening lands to the cities of Auraria, Denver and Highland, in the County of Arapahoe, Territory of Kansas, and have the exclusive privilege of using and controlling the same for mechanical, agricultural, mining and city pur- poses.
"Section 3. The capital stock of said company shall consist of five hundred thousand dollars, but it may commence operations when one hundred thousand dollars are subscribed. Its liabilities shall at no time exceed fifty thousand dollars.
"Section 4. The officers of said company shall consist of a president, vice president, secretary and treasurer, and four directors, who shall be elected at the annual meeting of the company, to be held on the last Tuesday in Novem- ber, who shall constitute a board of directors, and a majority of them shall con- stitute a quorum for the transaction of business.
"Section 5. This act shall take effect and be in force from and after its passage.
"GUSTAVUS A. COLTON, "Speaker of House of Representatives. "W. W. UPDEGRAFF, "President of the Council.
"Approved February 21, 1860.
"S. MEDARY, Governor."
BUILDING OF CITY DITCH
Under this act the present City ditch was built and operated. The men named, realizing the necessities of the city then and its future necessities as well, secured the enactment of this law, which for years furnished water for the lawns, trees and gardens of the city. Residents of Denver, even as late as 1880, remem- ber the streams of water which flowed down both sides of the streets leading to the river and that trees lined the sidewalk casting their "grateful shade" on the gravel. The boys will remember how their bare feet burned and blistered and how the shade was so refreshing and remember how much fun it was to wade in these artificial brooks, build miniature canals and lakes and erect water wheels therein.
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This act, properly enforced, should give to the city all the water it needs for mercantile, agricultural, mining and city purposes, for without doubt the inten- tion was to secure a grant for the future needs of the city, and just as in the case of the City of Los Angeles, where the pueblo of Los Angeles had a similar grant, the city's rights would be confirmed in any suit at law properly prosecuted.
FIRST LEGISLATION
The first General Assembly of the territory convened in 1861 and passed laws concerning irrigation. The owners of land on streams were entitled to the use of water. Water might be allotted on alternate days. Rights of way could be secured. Local customs developed during territorial period and the questions then arising related principally to the use of water and the rights of different appropriators, both as to quantity and as to time. In the case, how- ever, of Yunker vs. Nichols the Supreme Court in 1872 took up the question of riparian rights as against appropriation. Judges Hallett, Belford and Weils sat in the case when appealed to the Supreme Court, and while they agreed in the findings it was for different reasons, Judge Wells contending that the necessities of an arid climate were such as to change the riparian doctrine as found in the English common law, and thus laid the foundation for the so-called "Colorado system," claiming that the right of appropriation existed before any statute was enacted and would still survive though the statute was repealed. While the Yunker vs. Nichols case indirectly abrogated riparian rights, the case of Coffin vs. Left Hand Ditch Company dealt with the matter directly. Colorado, fortunately, thus early avoided complications and conflicts between riparian owners and ap- propriation users, which has given California and other states so much trouble. Other states followed Colorado in this and now in nearly all of the states the riparian right has been abrogated.
As previously stated, the greater part of the flow of the streams was appro- priated prior to 1879.
LATER IRRIGATION LAWS
Controversies generally resulted in physical encounters and often bloodshed, and it is probable that to trace the history of irrigation closely would necessitate the study of the records of the criminal court rather than that of the civil court. At any rate, the difficulties had so grown that by the time the second General Assembly of the state met in 1879 an effort was made to provide a means for ad- judicating the rights of the different appropriators.
Colorado in 1879 and again in 1881 passed acts providing for the adjudicating of water rights intended to settle all claims then existing and to fix relative dates of priority and the amount of water to which each ditch was entitled. The ap- plication of the law of 1881 was so defective that litigation in later years was inevitable. The courts were advised almost solely on legal points to the neglect of consideration of physical conditions. No technically trained engineer ap- peared as the friend of the court nor was the state represented though the state as trustee of this great estate for future canal and reservoir builders and water users should have seen to it that water was not given away except as fixed by
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actual beneficial use limited by the necessities. Three parties should have been brought into these suits: First, the claimant; second, the adverse claimant; and third, the state.
Considerable other legislation was enacted in 1881, as, that no lands should be burdened with more than one ditch; shortest route must be taken; owners must permit others to enlarge; while in 1879 the law provided that water should be prorated among the consumers; provided for the irrigation of meadows where by reason of diversions of water above the meadows had been injured and no longer enjoyed the overflow.
In 1889 the law took up the matter of priority of right to seepage and spring waters, thus recognizing the fact of return waters to streams. In 1891 water ap- propriated for domestic purposes could not be used for irrigation. In 1889 also, a commission was formed for the codification of the water laws, it being by that time apparent that our laws and decisions were inadequate to our needs.
In 1879 reservoirs were recognized and the right to use the natural channel to conduct water from reservoirs to canals was provided.
As early as 1872 the owners of ditches were required to maintain their em- bankments and tail ditches and in 1876 the owner of any ditch must prevent water from running to waste.
In the laws of 1879 the statute provided for the regulation of charges for water and charges for carrying.
The first state engineer was appointed in 1883, while in 1879 water districts were created and water commissioners were provided for the irrigation districts.
The irrigation district law was enacted in 1905 and was based upon the so- called "Wright Law" of California, and it is under this law and subsequent amendments that our irrigation districts now operate.
As previously stated, the state undertook construction of ditches and reser- voirs and in 1889 made appropriations for their construction. State Canal No. I was taken from the Arkansas River in the vicinity of Canon City. About two hundred and fifty thousand dollars was spent upon this work and it was never completed. The Mesa County ditch was to take water from the Grand River in Mesa County. This ditch was never built and was known as State Canal No. 2. State Canal No. 3 was to take water from the Gunnison River below the mouth of the Cimarron. This ditch was never completed.
Of the reservoirs there were the Coal Creek, the Apishapa Creek, Hardscrab- ble Creek, Saguache Creek, Monument Creek, for one or more reservoirs in Chaffee County taking water from tributaries of the Arkansas River, and the Boss Lake reservoir on the South Arkansas. Some of these reservoirs were constructed, but only one is now operated-the Monument Creek reservoir, which was turned over to El Paso County and is now principally used for the cutting of ice, although to some extent it is used for irrigation. Its limited capacity, however, renders it unimportant.
IRRIGATION KNOWN TO ANCIENT PEOPLES
Agriculture by irrigation is historically as old as agriculture itself and its importance now, as always, is greater than agriculture without irrigation. As- syria, Babylonia, Nineveh, Egypt, Carthage, Persia and Phoenicia depended al-
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ways and almost entirely on irrigated crops. Italy, France, Sicily, Algeria, Spain, India, China, most of Latin America, Australia, the Hawaiian Islands, the United States and Canada west of the 100th meridian, all practice irrigation wherever water is available and the topographic features permit. It has been stated by no less an authority than Sir William Wilcocks that two-thirds of all the food con- sumed by civilized man is produced by irrigation.
It is therefore apparent that irrigation is the most important factor in the world today, and it is proper that a brief resumé be given of the progress of irrigation in any history of Colorado.
The study of irrigation in semi-arid and arid America is especially interesting, as in the brief period of a half century and within the memory of men now living irrigation has developed from its crudest form to its highest known perfection. In this brief period we see a development which in the ancient world required centuries, a development equal to all of the development since the beginning of history to the present day, and one familiar with the growth of irrigation in arid America can study ancient irrigation with a full understanding of the diffi- culties which beset the ancients. Speaking of Assyria and the land between the Euphrates and Tigris, Herodotus wrote, 400 years before Christ: "This is of all the land with which we are acquainted by far the best for growing corn." Hamurabie, 700 years before the time of Moses, wrote: "Any one failing to keep his irrigating dam in repair and through his neglect and laziness a break . occurs in the dam and his neighbor's lands are flooded by overflow of the waters therefrom, shall compensate the owner of the damaged land for his loss of corn and other property occasioned by the overflow." In the Roman law we find, for example, "it is not acreage but the use to which water is put that measures the right to water."
RIPARIAN RIGHTS
In "Mills' Irrigation Manual" (page 2) we find from the history of this subject, dating as we have seen from the earliest period of irrigation down to the period when extensive preparations were made for mining and agriculture in the arid and semi-arid west, that there was no controversy between those claiming as riparian proprietors and those engaged in diverting and conducting water to non-riparian lands. It seems to have been accepted that the water was the property of the public and when the necessities of the people required that it should be conducted from the stream and applied to the soil for the production of crops, the right to do so was unquestioned. Only in the common law of humid England do we find riparian rights seriously considered. It was provided as long ago as 286 A. D. that "if it can be fully proven that a flow of water through certain places is according to ancient custom and according to observation it shows usefulness in irrigating certain tracts of lands, our procurator will pro- vide that no innovation against the old form and the established custom be permitted. * * * If the supply of water is sufficient the right may be granted to many in the same place for the same day and the same hour. * From
* * my water right I may accommodate my neighbors with water. On the other hand, Proculus holds that water will not be used for any part of the estate other than that for which the right was acquired. The opinion of Proculus is the truer one."
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Scarcely a question has arisen in Colorado concerning irrigation during the last fifty years which has not been discussed in the writings of the ancients.
INTERSTATE RIGHTS
In an article of the brevity of this it is inadvisable to attempt to give in any detail the conditions or history of the interstate suits. It is not out of place, however, to briefly state Colorado's attitude on this subject :
"Colorado believes in Home Rule and local self government.
"Professor Farnham of the College of Law of Yale University says in his great work.on 'Water Rights': 'The establishment and enforcement of laws upon the waters within the limits of the state are absolutely necessary, it being estab- lished that the title to the waters and the lands covered by them is in the state. They form a part of its domains and its laws are binding thereon.'
"Colorado believes in the economy of use and in the greatest good to the greatest number and that these are elements in the consideration of interstate rights.
"Colorado believes that each state has certain sovereign and inalienable rights. When natural resources are essential to a state's development, the state has the right to the use of such resources as are within its boundaries in much. the same way that independent governments have in furthering their develop- ment.
"Colorado, as one of the sisterhood of states, believes that an equitable divi- sion of the rights between the states, with a due regard to the necessities of each, should control in determining interstate relations.
"She believes in the interest of economy in the use of water and that in the proper conservation of this natural resource the use of water high up on the streams is necessary.
"Colorado believes and history shows that a diversion of water from one watershed to another is a necessity in the proper utilization of the water supply. In all countries where irrigation has been practiced, we find transmountain and transcontinental diversions as old as written history.
"Colorado believes that, although ditches may have been built in other states earlier than in Colorado, where these ditches were abandoned or ceased to be used for any considerable period, the dates of priority of such ditches should be fixed at the time of their reconstruction and actual use and not of date of their inception.
"Colorado believes in the utilization of the natural resources at this time and not in their being held for a similar utilization by future generations. She does not believe in retarding development merely because in the past some frauds may have been practiced upon the Government or that some of the natural resources have been wasted, or that development should be hindered for the fear that these may at some future time pass into the hands of monopolistic owners.
"Colorado has been accused of 'assuming to be bigger than the whole United States,' and of being 'bigger than the Government.' No such assumption, thought or feeling exists in the State of Colorado. The people do believe, however, that the state has the same rights as every other state in the Union, and that the laws, as made by Congress, are superior to departmental rulings, and that every per-
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son, corporation or state believing itself to be injured by departmental rulings and decisions should have the opportunity to take the matter into court for final judicial determination.
"Colorado believes that the public lands and natural resources belong to all of the people of the United States but not to the Government as a sovereign owner, but that they should belong to the Government as a trustee for the whole people, which trusteeship will continue until the individuals signify their desire, under proper regulation, to take over the public lands and natural resources and utilize them. We believe that the public lands and natural resources belong only to such people who are willing to put them to beneficial use and do not belong to such people as elect to remain in the east and are not willing to come west and claim their inheritance and aid in the building up of the west and the utili- zation of the opportunities offered them.
"The west believes that the United States Government should in no sense become a landlord, nor the people using the public lands and natural resources become a tenant. The people of the west believe in conservation-in a sane and practical conservation."
Control of interstate streams has been suggested by some of the Government men as a solution of interstate controversies. At this time the relative rights on interstate streams has not been judiciously determined and there is nothing that would direct the decisions and actions of such Government water official except his own private opinion, prejudiced or academic theory of what was proper. A judicial determination of the rights or priorities is necessary before an executive can act with authority and after such determination it is better to leave the mat- ter in the hands of the local officials who are executing the local laws, regulations, decisions and adjudications. It is unwise to create a dual executive control of the streams and to move the control of local matters to Washington and put them in the hands of men probably from humid regions and where knowledge and ex- perience is limited to the perusal of "Authorities" on the subject.
Speaking of authorities, it is strange but nevertheless true that many writers on irrigation in the United States are men who have merely a theoretical knowl- edge of irrigation. This is especially true of writers on irrigation law and too often the case in writings on engineering and other related subjects. Unfor- tunately in the past the reliability of the Government publications has not justi- fied the high place accorded them by the general public. The influence for good and evil of the Government publications is so great and the confidence with which they are accepted should cause the heads of departments to be very careful in accepting and in publishing what their subordinates write, or in accepting reports too often influenced by "the wish being father to the thought," by inexperience and even at times prejudice.
The general public should recognize also that the Government officials believe thoroughly in bureaucratic control, in centralization of government, and their own unprejudiced view point. It should also recognize that they are not infallible, that they desire autocratic power and to enlarge and extend their control. If any one believes that the people are incapable of local self government, that each man's business should be supervised by some official, that independent thought and actions are undesirable, that initiative is dangerous and the acquiring of ex- perience unprofitable, then such a person will be in favor of bureau control of all
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of our enterprises and in a widespread and beneficent paternalism. The proposi- tion of Government control is based on lust of power on the one hand and is encouraged by a lack of confidence in the ability and integrity of one man in another, who is his neighbor. "A prophet is not without honor except in his own country," a piece of goods is not first class unless it is imported, nor an adviser held in much regard unless he too is "imported."
The aggression of the executive departments is merely a manifestation of what the framers of our laws and constitution foresaw and attempted to guard against by creating these coordinate branches of Government, each of which would act as a check upon the other and prevent centralization of power in any one branch. The weakness of our present legislative branch and the lack of intimate contact of the judicial branch with the country as a whole has permitted the executive departments to destroy the balance of power and to become the dominant branch of the Government to such an extent that it now has the temerity to assume to interfere with the sovereign rights of the states and to assume to direct and control the states' internal affairs.
The controversies which have arisen with the Government are, in the opinion of the writer, unnecessary and should not have arisen. Eliminate the question of increasing Federal power and control and substitute a desire for cooperation and a sensible solution of the mooted questions and there remains only to deter- mine whether the use of water in Colorado will or does materially affect users lower on the interstate streams. On the Rio Grande, the Colorado and the North Platte rivers, I believe that with proper economic use there is an ample supply in each of these rivers for the irrigation of all lands susceptible of irrigation at this time, or which it will probably be profitable to irrigate during the present generation. Each of these streams can be controlled by reservoirs: The North Platte by the Pathfinder Reservoir with over a million acre feet capacity; the Rio Grande by the Engle Reservoir and the already constructed and proposed reservoirs on its headwaters, and the Colorado River by the proposed reservoirs at Kremmling in Colorado, on the Grand, by the Browns Park and others on the Green, and by one said to have a five million acre feet capacity at the junction of the Grand and Green.
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