The Greeley tribune., 1905-11-30
DECISION OF HIGHER COURT
IN FISHING CASE
Takes on Importance of Inter.
state Water Suit and is
Contrary to General Ac-
cepted Ideas

oi COlOrauO except Such privileges as
might be granted by the owners of
the lands through which the streams
flowed, the supreme court has estab-
lished legal precedent that is de-
cidedly inimical to the interests of
this state in its controversy with
Kansas over the Use of Colorado
water for irrigation purposes.
Such is the original and forceful
argument used by Assistant Attor-
ney General l. b. Melville in the
hearing accorded by the supreme
court in the Gunnison county fish
case. Originally the case was a
simple dispute between A. Hartman,
a Gunnison county ranchman, and
George Tresise, who sought to fish on
his premises. But through the deci-
sion of the supreme court last June,
1t has grown in Importance until 1t
is said to have a direct bearing on
the outcome of the Kansas Colorado
water suit.
The decision of the court was that
the owner of land in Colorado had
control over the streams which pass
through that land. Mr.. Melville
contends that if this view is correct,
then Kansas farmer may take
priority with Colorado farmer in
appropriating the waters of this
state for irrigation purposes, and
that he may hold this priority over
any persons in Colorado who may
later desire to make appropriation.
In his argument Mr.. Melville
brought out the fact that the consti-
tuition of Colorado gives the water
to the public, and that since this
constitution was ratified by congress
therefore the people of this state
have congressional grant to the
streams which is superior to the
rights of any private owner of land.
In the Kansas Colorado water suit.
this state is claiming this as one of
its points. The decision of the
supreme court so modities the consti-
tutiona grant as to make the water
available for irrigation purposes
only, as water for this purpose is
used but temporarily, eventually
finding its way back to the streams,
and then passing on to the next
claimant. Mr.. Melville holds that
the water belongs absolutely to tEls
state under constitutional grant, and
that Colorado might build dam
over the Arkansas and keep all the
water here so far as the rights of any
other claimants are concerned.
In 1882 the legislature forbid fish
ing by the public in private bodies
of water of all kinds. Mr.. Melville
contends that, since there has never
been law forbidding fishing in the
public streams it has been the evil
dent intention of the legislature to
permit the public to enjoy the use OF
the streams in this way.
He also cites the law OF le'2'
which permitted timber to be floated
down the public streams in support
of his contention. He says this law
in effect, makes the streams public
HIGHWAYS. as much accessible as the
roads of the state.
Mr.. Melville argued that In the
twenty-six states where 1t was helo
that logs could be tloated down a
stream, the common law prevailed
with reference to fishing.
The arguments were had on the
petition of the state to come IN as
interyenor and secure modification
of the opinion. The petition was
filed at the request of State Game
and Fish Commissioner Woodard,
who believes The effect of the decl-
sion will render valueless the nsli
hatcherieS of the state, anu All liio
varied interests connected herewith
Mr.. Melville was assisted by Ethel
bert Ward and Thomas Ward, ]r., "
ID. Hoyt, Ralph Talbot, flal1
Rogers and Judge Gordon were pres,
ent as friends of the court, and VIII
file briefs.
d. c. Beaman of Denver an"
Spriyp Sbackleford of Gunnison rep
resented those interests wnrtn ,rsnsa oes,re y rs
the decision sustained. ihese "'1
mostly corporations who own iai'''
which they wish to convert iiioo
private fishing grounds. The argu-
ment of property rights was a'-
yanced to combat the states posloion'
The decision was reversal Oh '''o
Gunnison county district couiu'