Back in Colorado’s early years water has been primarily an issue of miners and afterwards ranchers and farmers. But it became apparent early on that using all the sparse supplies of water, even if use of the water was confined to people whose property abutted the creek, river or stream, the great majority of property wasn’t usable for much of anything. Early miners tended to utilize the water where and however they discovered it, and there wasn’t a lot of concern about what happened on the water then. Early settlers ventured to the irrigated farmland in northern New Mexico and there discovered much about the way the natives of this area assembled dam, ditch and canal methods to transfer water into the location it would be utilized.
Now the base of Colorado water law is terminology found at the Colorado Constitution of 1876, which says, in Article XVI:
“Sec. 5. The water of every natural stream, not heretofore appropriated, in the State of Colorado, is hereby declared to be the land of the general public, and the exact same is devoted to using the people of this State, subject to appropriation as hereinafter provided.
Sec. 6. The best way to divert the unappropriated waters of any natural stream to beneficial uses shall never be refused. Priority of appropriation shall give the better right as between those with water to exactly the exact same function; but whenever the waters of any natural stream aren’t enough for the support of those needing using the same, those using the water for domestic purposes will have the preference over those claiming for any other function, and people with the water for agricultural purposes shall have preference over those with exactly the exact same for manufacturing purposes Montana water rights.”
Unappropriated water is owned by the general public, is available for appropriation for beneficial uses in addition to rights-of method for ditches, canals and flumes with the goal of distributing the water to the location of usage.
Water from Colorado is a kind of property. It could be bought, sold, transferred, loaned, and hauled in much the exact same manner as other kinds of property. This is essential since, under the older riparian philosophy, water has been deemed more or less attached to the property. In other words, the person who owns the property where the river flowed could utilize the water for livestock and crop production. His neighbor, a couple miles out of the river, had no right to get or utilize the water for any use, except possibly navigation.
This riparian philosophy was comparatively useless in the very arid West. Crops and livestock were frequently found miles from the closest water. The natives, followed with the legislature and the judges, decided that the one thing which made practical and financial sense was to allow the transport of the water into the location it could be utilized. This became the legislation through the 1876 Colorado Constitution (“The right to divert the unappropriated waters of any natural stream to beneficial uses shall not be refused.”)
Since water is seen as independent property it could be moved absent any link to the property. (NOTE: This isn’t necessarily true with regard to molds.) Therefore, a totally distinct market came into existence for the purchase, lease or purchase of water rights. Though this is an energetic and intensely competitive marketplace, with tens of thousands of dollars riding on the results of several trades, it ought to be borne in mind that Colorado long ago announced its public policy was to promote the utilization of water and also to discourage speculation and profiteering from water rights.
Water has something of a double nature as land. It’s been treated as both real and personal property. The best way to divert water below a particular priority date was known as a real property interest, and will in most cases be conveyed by a deed. But following the water is redirected to a ditch or storage container of some type, it’s been called private property. In West End Irrigation Co. v Garvey, the Court explained: “… water ownership is private property; the best to divert water from a stream is an interest in real estate” (117 Colo. 109, 184 P2nd 476 (1947)