Arizona weekly enterprise., 1889-10-05
DECISION OF THE SUPREME COURT
 OF COLORADO.
Relative to Water and Water Rights.

| 1. The alternative writ in mandan1- us must state cause of action, and its sutiiciency in the regard may be tested by answer, as upon demurrer.
 ?. By the constitution title to the unappropriated water of the state is vested in the public, with perpetual right to its use in the people.
 3. A priority of right to its use for beneficial purposes, is, with certain limitation, acq quired by priority of ap | propriatiop.
 4. Alter appropriation, except per haps as to the quantity that actually is flowing in the consumers ditch or lateral, the title remains in the public with the paramount right of user, un- less forfeited in the appropriator.
 5. To constitute a valid appropria- tion the water diverted must within a reasonable time be applied to some beneficial use. But the priority of an appropris tion may date, proper dili- gence having been exercised, from the commencement of the ditch.
 6. The carrier acquires certain rights in connection with the water diverted, but it does not become pro- prietor thereof.
 '. It is a quasi public servant, charged with certain duties and sub feet to a reasonable control. It has, in general, monopoly of the business l and at common law, could not coerce I compliance with unreasonable regula tions or charges.
 9. The carrier is entitled to com pensation for carriage, but 1t canno i charge for the right to use the water : from its canal. Nor can it exact ir l. advance part or al If its transi o tation charges for the remaining year of it corporate life, as a condition pre- l. cedent to use the current irrIga in n season.
 l. 10. The consumers rights may b.
 waived and voluntary contract as t 10 these matters may be binding upol T. him.
 r. But giving these rights all due sig
 niiicance, I cannot consent to the pro
 position that the carrier becomes G. proprietor" of the water diverted. " A cursory reading of the statute 1t might convey the impression that tn Il legislature regarded the carrier a to possessing saleable interest in tn w water. And the constitutional phras ed ito be charged for the use of water h. relating to the carriers compensation e, might at first glance seem to recogni. od like ownership in such use. Bl b. construing all the provisions of thi it instrument bearing upon the suhlec I'd in pari malera, the or .ectne.s of bot d. of these inferences must be denied. rn Any unreasonable regulations or d IT, mands that operate to withhold prevent the exercise of this constit he tional right by the consumer must ul, held illegal, even though there is I
 expressed legislative declaration {
 the subject.
 If carrier may collect part of
 annual transportation charge in g
 vance for the remaining years of
 corporate life, it may collect all. Su
 pose the company just organized; U
 der counsel's view, the consumer m; there being no legislation on the sr
 ject, be compelled to pay the cost
 delivering water to him for the ent
 twenty years of its existence before
 can exercise his constitutional right n it during a single season. But there
 nothing in the law to compel him
 cultivate his land for any particu period.
 He may not want the water
 twenty years, or it may be utterly
 possible for him to advance sc larg
 sum at once In fact majority the those who till the soil are too pool
 comply with such demand; to bling that they must do so or have no WE
 Is to deprive them of its use just ,. etfectuaIiy as though no right 1t s' had existed. It Is true these pee
 would not themselves be able to bI so water from the natural streams to tl the farms and without the carrier t ap- might be compelled to abandon t ,tion attempts at agriculture. This ( Sur sideration, however only reinfo lany the position, that only reasons ohe- control was intended.