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14 in deciding coffin the colorado supreme court

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Unformatted text preview: in right" system of mining claims in Colorado.35 11 The Colorado State Constitution, which took effect in 1876, stated quite clearly in Article sixteen, section six that, "Priority of appropriation shall give the better right as between those using the water for the same purpose," and, "the right to divert the unappropriated waters of any natural stream to beneficial uses shall never be denied."36 This language was a codification of existing practices, as even the US Congress had in the Mining Act of 1866 declared that water rights were to be "recognized and acknowledged by the local customs, laws, and the decisions of the courts."37 Much later, in the precedent setting Colorado Supreme Court case Coffin v. Left Hand Ditch Co. (1882), the court reached back to even before the 1866 Mining Act and ruled, somewhat controversially, that prior appropriation was the only system of water rights the state had ever harbored within its borders. The Court found that the State's 1876 codification of the prior appropriation doctrine was merely "the acknowledgement by the legislature of a doctrine already existing," thus forever banishing riparian water rights from Colorado.38 And indeed, the Leadville Weekly Herald printed in 1880 a brief historical piece which reported that huge surface diversions for the purposes of mining, and therefore under a system of priority, were already talking place during the early 1860s. In part, the piece read: For a couple of years [after 1859] some of the gulches were worked with bedrock flumes, but these were gradually abandoned... until the great portion of the county was under production by extensive ditches and giant hydraulics... the main flume, which is fourteen miles long, has a capacity of twenty- five hundred inches of water and covers without a doubt the richest hydraulic mine east of California. The Mount Guyot flume, which has a capacity of forty inches, and is two miles in length, crosses the divide at Georgia pass, and is the only place on the continent where the Atlantic waters are diverted to the Pacific ocean.39 12 What is most interesting from this and other examples, however, is that it elucidates the fact that the technologies employed by the miners – in this case massive flumes – played a significant role in shaping the institutions which came to govern the resource. For if surface diversions of this...
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