CO Code § 37-86-113 (2021)
2021 Colorado Code|Title 37 - Water and Irrigation|Article 86 - Rights-of-Way and Ditches|§ 37-86-113. Irrigation of Meadows

 All persons who have enjoyed the use of the water in any natural stream for the irrigation of any meadow land by the natural overflow or operation of the water of such stream, in case the diminishing of the water supplied by such stream, from any cause, prevents such irrigation therefrom in as ample a manner as formerly, shall have right to construct a ditch for the irrigation of such meadow and to take water from such stream therefor. Their right to water through such ditch shall have the same priority as though such ditch had been constructed at the time they first occupied and used such land as meadow ground.   History. Source: L. 1879: P. 106, § 37. G.S. § 1723. R.S. 08: § 3176. C.L. § 1636. CSA: C. 90, § 19. CRS 53: § 147-3-14. C.R.S. 1963: § 148-3-14. History. Source: L. 1879: P. 106, § 37. G.S. § 1723. R.S. 08: § 3176. C.L. § 1636. CSA: C. 90, § 19. CRS 53: § 147-3-14. C.R.S. 1963: § 148-3-14.    ANNOTATION   Law reviews. For article, ”Water for Recreation: A Plea for Recognition“, see 44 Den. L.J. 288 (1967). For comment, ”Colorado River Water Conservation Dist. v. Colorado Water Conservation Bd.: Diversion as an Element of Appropriation“, see 57 Den. L.J. 661 (1980).   Under this section plaintiff acquired valid rights to the overflow of the stream for his meadow lands, and these rights were vested before defendant began the construction or operation of its mill. Humphreys Tunnel & Mining Co. v. Frank, 46 Colo. 524 , 105 P. 1093 (1909).   Plaintiff's rights paramount to any rights defendant has in the waters of the stream. Humphreys Tunnel & Mining Co. v. Frank, 46 Colo. 524 , 105 P. 1093 (1909).   Plaintiff's rights were subject only to the rights acquired by prior appropriators of the water for some useful purpose and his right, as well as theirs, as against defendant, is to have the natural waters and all accretions come down the natural channel undiminished in quality as well as quantity. Humphreys Tunnel & Mining Co. v. Frank, 46 Colo. 524 , 105 P. 1093 (1909).   Though other appropriations, to the full capacity of the stream during its ordinary flow, were made before plaintiff's rights accrued, this does not prevent him from building a ditch and diverting and using its waters whenever his seniors do not need it. Humphreys Tunnel & Mining Co. v. Frank, 46 Colo. 524 , 105 P. 1093 (1909).   When the demands of the senior upon the stream cease the rights of the junior attach, and, as against a wrong-doer like the defendant, the junior is entitled to protect the stream from pollution, the same as if he were the senior and only appropriator, and if the acts of defendant interfere with such rights of plaintiff, as they have, defendant must be held responsible for the resulting injury. Humphreys Tunnel & Mining Co. v. Frank, 46 Colo. 524 , 105 P. 1093 (1909).   In a class action for declaratory judgment by the United States to adjudicate the rights of the affected parties to the use of water of the Colorado river arising out of a federally financed water diversion project where intervenors had vested rights under this section in the overflow of the Colorado river for the natural irrigation of their meadow lands, those rights cannot be taken for public purposes, such as this project, without imposing upon the government the constitutional duty to pay just compensation therefor. United States v. Martin, 267 F.2d 764 (10th Cir. 1959).   One who has acquired an appropriation for his meadow lands, as the result of the natural overflow of the waters of the stream, may not, when the same has become diminished in quantity, and whenever thereafter it suits his convenience, construct a ditch and have a priority awarded to date back by way of relation to his meadow appropriation, where such priority antedates the priorities fixed by a previous statutory decree. Broad Run Inv. Co. v. Deuel & Snyder Imp. Co., 47 Colo. 573 , 108 P. 755 (1910).   On appeal from a statutory proceeding adjudicating priorities of water rights under this section, a contention that the same priorities of right adjudicated and determined by the decree appealed from were adjudicated and determined by a former decree in the same water district, will not be considered where neither the decree appealed from, nor the former decree, nor the proceedings in which it was pronounced appear in the abstract of the record. Means v. Gotthelf, 31 Colo. 168 , 71 P. 1117 (1903).   Where no exception was taken to the decree by bill of exceptions, and the transcript does not contain a bill of exceptions and there is no certificate under the hand and seal of the judge that the transcript contains all the evidence, the question as to whether the decree is supported by the evidence cannot be considered. Means v. Stow, 31 Colo. 282 , 73 P. 48 (1903); Means v. Gotthelf, 31 Colo. 168 , 71 P. 1117 (1903).   Applied in Colo. River Water Conservation Dist. v. Colo. Water Conservation Bd., 197 Colo. 469 , 594 P.2d 570 (1979).