9.1.2 Rocky Mountains (1850-1900): Water Law for the Arid West

Early Water Laws in the Rocky Mountain Region

Van Sickle v. Haines – Nevada, 1872 (7 Nev. 249); Thorp v. Freed – Montana, 1872 (1 Mont. 651); Munroe v. Ivie – Utah, 1880 (2 Utah 535); Jones v. Adams – Nevada, 1885 (6 P. 442); Drake v. Earhart – Idaho, 1890 (23 P. 541)
  • The eastern United States, with relatively abundant rainfall and water supplies, followed the common-law “riparian rights” rule of ownership:  riparian landowners (that is, owners of property with streams running across or next to it) had the right to full use of all rivers running through their property.  The riparian doctrine did not make any allowance for non-riparian landowners’ water needs.   The rule was unworkable for arid parts of the West:  land could be farmed only through irrigation, and irrigation would not work unless water rights were shared and carefully delineated. 
  • Lawmakers in the frontier-era West from California (see §§ ____) to the Great Plains struggled to find workable water rights laws.  In Van Sickle, Nevada’s supreme court reluctantly adopted a riparian rights rule and rejected the “prior appropriation” doctrine that was then evolving in California (see § ___).  The court reasoned that it had no choice, because Nevada’s legislature had decreed in  broad terms that Nevada would be a common-law state.  Montana’s supreme court used the same reasoning in Thorp but made clear that Montana’s  version of riparian rights required riparian owners to respect others’ right to a fair share of water.  The court also adopted a central argument advanced by critics of the prior-appropriation doctrine, namely that that doctrine would allow early users to monopolize water.
  • Van Sickle was widely criticized, and a decade later, in Jones, the Nevada court followed Thorp and modified its riparian-rights rule to provide that riparian owners must respect others’ right to a fair share of water.  In Munroe, Utah’s supreme court followed suit, arguing that broad access to water was part of a basic right to liberty.  A decade after Munroe was decided, Idaho’s supreme court adopted a similar rule clothed in very different language:  it described the Idaho rule as prior appropriation, modified so that first appropriators could only take the water they needed for personal use.  Thus, by 1890 the differences between Rocky Mountain courts outside Colorado and Wyoming were more linguistic than doctrinal.
“[T]he maxim, ‘first in time, first in right,’ should be considered the settled law here … whether or not it is a beneficent rule, it is the lineal descendant of the law of necessity … Instead of attempting to divide it among all, thus making it unprofitable to any, or instead of applying the common-law riparian doctrine … they disregarded the traditions of the past, and established as the only rule suitable to their situation that of prior appropriation.”  - Justice _, in Drake
Colorado and Wyoming:   Shapers of Water Law for the Arid West
Coffin v. Left Hand Ditch Co. – Colorado, 1882 (6 Colo. 443); Moyer v. Preston – Wyoming, 1896 (44 P. 845); Farmers’ Independent Ditch Co. v. Agricultural Ditch Co. – Colorado, 1896 (45 P. 444); Farm Investment Co. v. Carpenter – Wyoming, 1900 (61 P. 258)
  • In the end, Colorado and Wyoming broke through the confusion in other courts and created a comprehensive body of water-rights law that worked for the arid West.   In Left Hand Ditch, Colorado’s supreme court adopted the prior-appropriation doctrine – with two important twists.  The traditional doctrine gave first users of streams an unlimited right to use as much water from the streams as they wanted. Colorado’s court held that the right existed only to the extent they could make beneficial use of the water:  any excess water was available for use by others.  The    court also added a rule that became known as the “Colorado Rule”:  rights of use were not limited to riparian owners but extended to all landowners who had access to water by easement or otherwise.  The court justified its opinion in bluntly utilitarian terms: without such a rule, the state’s economy would die.  Wyoming confirmed in Preston that it would follow the same rule, and many other Western states followed suit.
  • Many Westerners were not fully satisfied with the Colorado rule because it put no limits on the amount of water to be taken for “beneficial” uses, which meant that some landowners would not get a fair share of water simply because they had acquired their land late.  Efforts to create statewide allocation systems had begun  as early as the 1870s, and in 1886 Wyoming became the first jurisdiction to create a workable irrigation district system, including special water courts to resolve disputes. 
  • In 1888, Wyoming implemented the next step in its plan by appointing Elwood Mead to the newly-created office of territorial engineer, the first such office in the nation.  Mead worked with lawmakers to devise an allocation law allowing the state to apportion water use between all landowners.  Wyoming enshrined this principle in its constitution at statehood in 1890, and the new system was widely adopted throughout the West.  In Farmer’s Independent Ditch, Colorado’s supreme court rejected a claim that the state’s new irrigation law, modeled on Wyoming’s law, deprived early landowners and first users of existing property rights; the court justified the law as as police measure necessary to public order and prosperity, and concluded that it took reasonable measure to protect existing rights.  A few years later, in Carpenter, Wyoming’s supreme court rejected a similar challenge to the state’s water allocation laws for similar reasons. 

“The water of every natural stream not heretofore appropriated … is hereby declared to be the property of the public … The right to divert the unappropriated waters of any natural stream to beneficial uses shall never be denied.”  - Colorado Constitution, 1876


“Water being essential to industrial prosperity, of limited amount, and easy of diversion from its natural channels, its control must be in the State, which, in providing for its use, shall equally guard all the varied interests involved.” – Wyoming Constitution, 1890


“Although [riparian rights] may operate unjustly in come cases, still, as a general rule, none more just and reasonable can be adopted for this state.  It is a rule which gives the greatest right to the greatest number, authorizing each to make a reasonable use of it, providing he does no injury to the others equally entitled to it with himself; whilst the rule of prior appropriation here advocated would authorize the first person who might choose to make use of or divert a stream, to use or even waste the whole to the utter ruin of others who might wish it.”  - Justice _, in Van Sickle


“ The resources of the country cannot be developed, and our valleys cannot be reclaimed and become inhabited, unless the waters of the streams can be used in an equitable manner, to cause the earth to bring forth its fruits … Is it not the true policy of this Territory to erect such a system of laws here as shall distribute our short supply of water to the best advantage to all our people?  The common law applied to this country is ample and sufficient to secure this much desired end.”  - Justice _, in Thorp







“[E]xcept in a few favored sections, artificial irrigation for agriculture is an absolute necessity.  Water in the various streams thus acquires a value unknown in moister climates.  … [V]ast expenditures of time and money have been made in reclaiming and fertilizing by irrigation portions of our unproductive territory.  Houses have been built, and permanent improvements made; the soil has been cultivated, and thousands of acres have been rendered immensely valuable, with the understanding that appropriations of water would be protected.  Deny the doctrine of priority or superiority of right by priority of appropriation, and a great part of the value of all this prop is at once destroyed.”  - Justice _, in Left Hand Ditch


“This [public] use [system] and the doctrine supporting it are founded upon the necessities growing out of natural conditions, and are absolutely essential to the development of the material resources of the country …The people as a whole are intensely interested in its [water’s] economical, orderly, and inexpensive distribution.  It is a matter of public concern that the various diversions shall occur with as little friction as possible, and that there shall be such a reasonable and just use and conservation of the waters as shall redound more greatly to the general welfare, and advance material wealth and prosperity.” – Justice _, in Carpenter