93 



water must be put to a beneficial use, and the law provides for the 

 submission of proof of the use of the water, while under the decree 

 there is no such provision, but the burden of proof is on the adverse 

 claimant, Avho nuist show abandonment. The Colorado adjudica- 

 tions look like an abandonment of the principle of beneficial use, but 

 a more correct vieAv of them is that they recognize the principle and 

 go upon the theory that the construction of a ditch creates a presump- 

 tion that the volume of water Avhich it will carry has been put to a 

 beneficial use. 



This interpretation of the principle of beneficial use greatly sim- 

 plifies the adjudication of rights and the distribution of water, but 

 has been the cause of more trouble than any other one featui"e of the 

 Colorado water law. Most of the adjudications of rights to the 

 South Platte and its tributaries took place soon after 1880, and about 

 the time that many of the large canals were constructed. Few, if 

 any of them, were using their fidl capacities and no great care was 

 exercised in determining ditch capacities, most of the decrees being 

 based on estimates. (See pp. 20-36.) In this w^ay it happened that 

 most ditches were decreed larger volumes of water than they Avere 

 using and many of them more than they could carry. The sum 

 of all the rights decreed was for more than the stream supplied, 

 but since few took or attempted to take all they were decreed, 

 there w-as enough to satisfy most of the demands. As the lands 

 under these ditches were brought under cultivation there was an 

 increased use of w^ater all along the line, until there was shortage. 

 Then the injustice of the decrees began to be felt. The use of water 

 by newcomers under the canals having the earlier rights took Avater 

 awa}^ from those who had been using water perhaps for yenrn from 

 canals having later rights. The expansion was not limited to using 

 larger volumes but the time of use was extended. Ditches which 

 served small areas and diverted water only part of the time Avere 

 made to serve more land and diverted Avater continuously dui-ing the 

 irrigating season; land Avhich Avas used for crops Avhich reciuired 

 water only during the time Avhen the streams are high were i)lanted 

 to crops Avhich required Avater late in the season Avhen the streams 

 are low. All of these enlargements Avere at the expense of the 

 holders of the later rights, and if the early rights had been limited 

 to the quantity beneficially used at the time the later rights were 

 acquired the enlargements could not haA^e been made. As a rule, 

 the increased use Avas Avell within the decreed rights of the earlier 

 ditches, but this did not lessen the hardshiji on the holders of the 

 later rights. 



The same expansion in use is not possible under the Wyoming and 

 Nebraska systems properly enforced. Irrigators are granted rights 

 to sufficient water for certain areas, rather than fixed volumes. The 



