The common law doctrine giving the riparian owner a right to the flow of water in its natural channel upon and over his lands, even though he makes no beneficial use thereof, is inapplicable to Colorado. Imperative necessity, unknown to the countries which gave it birth, compels the recognition of another doctrine in conflict therewith. In the absence of express statutes to the contrary, the first appropriator of water from a natural stream for a beneficial purpose has, with the qualifications contained in the constitution, a prior right thereto, to the extent of such appropriation.
Appellee claimed to be the owner of certain water by virtue of an appropriation. Appellants were the owners of lands that were naturally irrigated by the same water. A portion of appellee's dam was torn out and its diversion of water seriously interfered with by appellants. Appellee brought an action for damages arising out of the trespass and for injunctive relief to prevent repetitions in the future. The trial court found in favor of appellee. Appelants challenged the order but the court affirmed the decision of the trial court.
Does the common law doctrine that allowed the riparian owner the natural flow of the water over his lands apply to the case at bar?
The common law doctrine that allowed the riparian owner the natural flow of the water over his lands was inapplicable. Instead, the court applied the rule that, in the absence of express statutes to the contrary, the first appropriator of water from a natural stream for a beneficial purpose had a prior right thereto.