THE COMMON LAW OF IRRIGATION. In;} 



former is no more or less than a right of way or 

 ment through lands, but in some cases as evidence of 

 appropriation, furnish the measure of the water right. 

 The Colorado Statutes provide for a record of ditch 

 statements and the Legislatures have gone so far as to 

 declare that the construction of a ditch and record of ji 

 statement shall give priority of right to water, but nil 

 such statutes are in that respect unconstitutional. 



Adjudication of Priorities. The Colorado Stat- 

 utes provide a method for the adjudication of priorities 

 as between claimants of water from the same stream; and 

 many attempts have been made by the courts to carry 

 out these laws, but with little success and unsatisfactory 

 results, mainly from the fact that the law is imperfect, 

 vague and indefinite, and the courts in attempting to 

 follow its provisions have lost sight of constitutional 

 restrictions. In many instances the construction and 

 record of a ditch right was treated as equivalent to the 

 appropriation of water to the extent of the capacity of 

 the ditch, and in some instances parties were decreed 

 priorities, to take effect upon future contingency, when 

 an actual appropriation to beneficial use in each case 

 should have been the basis of the decree. 



Rights Existing in Parole. Under the Colo- 

 rado system, water rights exist almost exclusively in 

 parole, and hence there is the greatest latitude for dis- 

 putes and litigation. Since these rights have been de- 

 clared to be in the nature of "realty," a code of laws 

 should be enacted requiring a complete public record to 

 be kept of each water right. 



