The Colorado Doctrine

The Colorado Doctrine

David Schorr
Copyright Date: 2012
Published by: Yale University Press
Pages: 224
https://www.jstor.org/stable/j.ctt32bskc
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  • Book Info
    The Colorado Doctrine
    Book Description:

    Making extensive use of archival and other primary sources, David Schorr demonstrates that the development of the "appropriation doctrine," a system of private rights in water, was part of a radical attack on monopoly and corporate power in the arid West. Schorr describes how Colorado miners, irrigators, lawmakers, and judges forged a system of private property in water based on a desire to spread property and its benefits as widely as possible among independent citizens. He demonstrates that ownership was not dictated by concerns for economic efficiency, but by a regard for social justice.

    eISBN: 978-0-300-18904-9
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. PREFACE
    (pp. ix-x)
  4. ACKNOWLEDGMENTS
    (pp. xi-xiv)
  5. CHAPTER 1 INTRODUCTION
    (pp. 1-8)

    We conclude, then, that 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. And we hold that, 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...

  6. CHAPTER 2 THE SOURCES OF THE COLORADO APPROPRIATION DOCTRINE
    (pp. 9-31)

    As noted in the first chapter, the history of rules for water rights in the mining districts of the American West is not a new topic, and there would seem to be little left to add. (The uses to which miners put water are illustrated in Figs. 1 and 2.) Yet the analysis presented in this chapter leads to conclusions that diverge significantly from the conventional story. These new insights were made possible, first of all, by throwing as wide a net as possible, in an attempt to gather all surviving records of Colorado miners’ laws, as well as contemporaries’...

  7. CHAPTER 3 EARLY COLORADO WATER LAW AND COFFIN V. LEFT HAND DITCH CO.
    (pp. 32-64)

    Coincident with the organization of the first mining districts at the Gregory Diggings and elsewhere in the “Pike’s Peak” region, residents of the region were attempting to organize a territory that would gain federal recognition. The short-lived Territory of Jefferson, which held a legislative assembly in the winter of 1859–1860, failed in this respect, and was effectively terminated in 1860. Recognition of the Colorado Territory came in 1861, and with it the beginning of regular legislative sessions and territorial courts.¹

    As settlement of the territory intensified, agriculture began to replace mining as the sector principally concerned with and responsible...

  8. CHAPTER 4 THE REGULATION OF COLORADO WATER CORPORATIONS
    (pp. 65-103)

    While Colorado law in the territorial period and the first decade of statehood had not ignored the issue of water companies, its primary concern was the threat of water monopoly by riparian proprietors. In 1887, though, the state supreme court noted that a watershed had been reached:

    The subject of water rights has always been justly regarded as one of the most important dealt with in the legislation and jurisprudence of Colorado. Hitherto attention has been mainly directed to the adjustment of priorities and differences between individual consumers; but hereafter, owing to the rapid settlement of the eastern part of...

  9. CHAPTER 5 BENEFICIAL USE AND LIMITS ON TRANSFER
    (pp. 104-138)

    The three previous chapters began the exploration of the connection between distributive justice and the evolution of property institutions in the historical context of the development of the appropriation doctrine. We saw that the development of water law in Colorado (the leading water-law jurisdiction in this period) in the initial decades of white settlement was guided primarily by a concern to ensure as broad a distribution as possible of the crucial resource, and a desire to prevent its monopolization by capitalists and speculators. The adoption of a property regime based on appropriative rights was aimed firstly at preventing monopolization of...

  10. CHAPTER 6 CONCLUSION
    (pp. 139-164)

    To conclude this study, several aspects of the relationship between the early history of Colorado water law and property theory will be examined. After a review of the distributive-justice principles reflected in the appropriation doctrine, the classic claim that the adoption of the prior appropriation regime was a transition to a system of more specified private-property rights, driven by considerations of economic efficiency, will be examined. Next to be considered will be other economic explanations for the transition in property rights, especially those highlighting the inefficient institutions that may result from interest group pressure. The fourth section will highlight some...

  11. NOTES
    (pp. 165-220)
  12. INDEX
    (pp. 221-235)