6 Bulletin 67. 
without traveling into ground which is somewhat open to con¬ 
troversy. The lack of authoritative judicial decisions on many 
questions likely to arise, is necessarily a source of embarrassment 
in making such comments from a professional standpoint. 
EARLY LEGISLATION. 
It is interesting to note that the first Legislature of Colorado 
Territory, on November 6, 1861, passed an act to protect and 
regulate the irrigation of lands, the fourth section of which, down 
to the proviso, reads as follows: 
“That in case the volume of water in the stream or river, shall 
not be sufficient to supply the continual wants of the entire country 
through which it passes, then the nearest justice of the peace shall 
appoint three commissioners as hereinafter provided, whose duty it shall 
be to apportion in just and equitable proportion, a certain amount of said 
water upon certain or alternate weekly days to different localities, as they 
may in their judgment, think best for the interests of all parties con¬ 
cerned, and with a due regard to the legal rights of all.” 
The proviso of the section excepted from its operation land 
on what is known as Hardscrabble Creek, a tributary of the Ar¬ 
kansas. In the Revised Statutes of 1868, the same section was 
re-enacted, except that the Probate Judge was made the official 
to appoint the three commissioners, instead of the nearest Justice 
of the Peace. In 1870, by act approved February nth of that 
year, that portion of said section 4, which referred to Hardscrabble 
Creek, was repealed. (Session Laws, 1870, p. 158, Sec. 1.) 
In 1872, there was further legislation concerning the duties 
of the water commissioners in the County of El Paso. It was 
provided that they should receive $5.00 per day when discharging 
their duties, to be paid by means of a tax levied by the County 
Commissioners, on each person using water for irrigation, in 
proportion to the amount of water used by each person. 
In the second section of the act approved February 6, 1872, 
concerning irrigation in El Paso County, it was provided that 
the commissioners, with a due regard to prior vested rights, 
should establish such rules and regulations as in their judgment 
are necessary and proper to secure the purposes of the act, and 
to control the use of water for irrigation. 
The third section of the act made it a misdemeanor sub¬ 
ject to a fine and imprisonment, for a person to use water from 
any ditch or water course of the county to which he was not 
entitled, when the commissioners were controlling the same, or 
to hinder any commissioner in the performance of his duties. 
A statute adopted February 9, 1872, applicable only to 
Pueblo County, required each ditch company to construct a tail 
ditch to return water with as little waste as possible, to the river, 
and made it unlawful to take more water into a ditch than was 
