CHAPTER XX. 



THE COMMON LAW OF IRRIGATION. 



BY JUDGE T. C. BROWX, GUXMSON, COLORADO. 



Early in the history of agricultura in the arid 

 regions of the west, it became apparent that the com- 

 mon law, rules and principles of riparian owners!) ip 

 could not obtain ; such laws would have been unjust, 

 and were wholly unsuited to the condition of affairs 

 ilu-re found to exist, and the people set about to discover 

 principles and formulate rules which might be more 

 just aud equitable. The questions are numerous and 

 complex, the whole subject is fraught with problems 

 most difficult, new theories are constantly arising, and 

 the greatest diversity of views exists among those who 

 have given years of close and careful study to the sub- 

 ject ; and how far the people have succeeded in their 

 efforts to solve these questions can only be determined 

 by a careful examination of the statutes and decisions of 

 those States and Territories where the subject of irriga- 

 tion has commanded the attention of profound thinkers 

 and able, jurists. The writer's humble opinion is that 

 the laws upon these subjects are far from perfect in any 

 section of the arid country, and he furthermore believes 

 that many years of evolution and change in these laws 

 will be necessary before anything approaching a jusi 

 exposition of the principle applicable will assume a defi- 

 nite form. 



The Colorado Constitution, Sec. 5, Art. XVI, declares 

 the vater of every natural stream to be the property of 

 the public, and Section <; in substance gives the prior 



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