THE COMMON LAW OF IRRIGATION. *'.)."> 



right to the prior appropriator to beneficial use. The 

 underlying principle seems to bo that the water of all 

 natural streams belongs to the public until appropriated 

 to beneficial use, and then to the prior appropriator, 

 and these principles with slight variations more or less 

 \\cll defined are the basis of the laws upon the subject in 

 other States and Territories, where for natural reasons 

 the rules of the common law do not obtain. 



The common law rules and principles of riparian 

 ownership never obtained in Colorado. The Constitu- 

 tion, Sees. 5 and 6, Art. XVI, declaring the waters 

 of all natural streams to be the property of the public 

 until appropriated to beneficial use, and that it then 

 belongs to the prior appropriator, is only declaratory of 

 an unwritten law which existed long prior to any legis- 

 lation or judicial decision upon the subject, and arose 

 from the peculiar conditions of soil and climate. 



Schilling rs. Rominger, 4 Col. 103 



Thomas rs. (Uiirand, 6 Id. 532 



Coffin vs. Left Hand Ditch Co., Id. 446 



And the various acts of Congress upon the subject 

 are But the recognition of a pre-existing right, and not 

 the establishment of a new one. 



Broder vs. Water Co., 101 U. S. 276 



Waters in the various streams of this climate acquire 

 a value unknown in moister climates ; the right to its 

 use is not a mere incident to the soil, but rises to the 

 dignity of a distinct usufructuary estate. 



Coffin r.s. Left Hand Ditch Co., Supra. 



Rominger rs. Squires, 9 Colo. 329 



It may be safely said that in all the States and Ter- 

 ritories where, as in Colorado, these rights are of pecul- 

 iar and paramount importance, they are treated as realty. 

 The Colorado Legislature in 1893 (L. 93 p. 293) enacted 

 that thereafter all conveyances of such rights should be 



