110 



to lend appropriations and thus utilize to the utmost the early rights 

 to the injury of subsequent priorities Avill almost inevitably be aug- 

 mented." 



Reference has been made to the fact that the early rights were 

 largely in excess of actual uses. One of the early appropriations of 

 water in the Territory of Wyoming would have covered all the land 

 irrigated to a depth of about 560 feet in a single season, whereas 3 

 feet would have been an ample allowance. One of the early appro- 

 priations of the Cache la Poudre River gave 32 cubic feet per second 

 for the irrigation of 320 acres of land. Four cubic feet per second 

 would have been a liberal allowance; hence there was an excess in 

 this case of 28 cubic feet per second. As long as these excess rights 

 w^ere attached to a particular ditch or a particular tract of land they 

 worked no serious harm, but when these rights are separated from the 

 original j^lace of diversion and use it gives the appropriator a valu- 

 able iDroperty for which he has rendered no equivalent to the public, 

 and demoralizes the efforts of the State irrigation authorities in try- 

 ing to secure a just division of the stream among actual users. Captain 

 Boyd, in his History of the Greeley Colony, explains that at the outset 

 the irrigators of Colorado believed that these rights were attached to 

 the ditches through Avhich the appropriations were acquired and could 

 not be separated from them. The discussions of this question in the 

 early numbers of the Colorado Farmer and the conversations of irri- 

 gators and ditch owners with the writer from 1882 to 1885 were all 

 to the effect that the excess rights of the early appropriations would 

 never amount to anything, because the water decreed could only be 

 used on the lands under those ditches, and the law which gave the 

 water commissioner authority to prevent waste would limit the quan- 

 tity diverted. When the first sale of one of these excess rights took 

 place there w^as a general expression of indignation by other irri- 

 gators over its recognition by the water commissioner, showing that 

 this idea of an appropriation was not in accord with the natural 

 sense of justice of water users. 



Another thing which has tended to destroy the idea of use as a meas- 

 ure of a right has been the establishment of api^ropriations before 

 the water was used, and in some cases before the ditches were com- 



a Since the above was written the supreme court of Colorado has rendered 

 a decision greatly restricting the loaning of appropriations of water and cur- 

 tailing the abuses which threatened to grow out of this practice. This deci- 

 sion is a most important one and one which recognizes the true principles of an 

 appropriation. 



" Under Sess. Laws, 1899. p. 2.36, c. 105. held, that a senior appropriator, who 

 did not need water for his own land, could not, by loaning it, pass over appro- 

 priators junior to him and confer it upon other appropriators junior to those 

 ignored, where such loaning would operate to the injury of the ignored appro- 

 priators. (Ft. Lyon Canal Co. v. Chew (Colo.), 81 Pac, p. 37.) 



