“The country was without law, but each individual brought with him the principles of equity and justice, which were a part of his education.”
— Armstrong v. Larimer County Ditch Co., 27 P.235, 237 (Colo. Ct. App. 1891) (discussing the adoption of the rule of prior appropriation and distributive justice in the arid West).
In The Colorado Doctrine: Water Rights, Corporations, and Distributive Justice on the American Frontier, author David Schorr details the historical development of Western water law. Schorr, a senior lecturer and chair of the Law and Environment Program at Tel Aviv University Faculty of Law, centers on the historical progress of the appropriation doctrine; a system of private rights in water divergent from the traditional eastern riparian doctrine, which affords water rights only to adjacent landowners. Schorr memorializes the development of the appropriation doctrine as part of a radical attack on monopoly and corporate power in the arid West. Colorado miners, irrigators, lawmakers, and judges forged a water-rights-as-property system based on a desire to spread property and its benefits as widely as possible among independent citizens, in place of speculative water rights based on land ownership.
In Chapter One, Schorr introduces the seminal 1882 decision, Coffin v. Left Hand Ditch Co. In Coffin, the Colorado Supreme Court firmly rejects the common law riparian doctrine giving the stream-adjacent landowner rights to water, even with lack of beneficial use, by finding the doctrine inapplicable to Colorado. Coffin laid out “pure appropriation,” under which a user may create water right by diverting water from a stream and putting such water to use, rather than water rights created by land ownership. Schorr explains the Western doctrine of prior appropriation advanced distributive justice at the expense of the property-based riparian right.
In Chapter Two, The Colorado Doctrine explores four historical sources documenting the development of Colorado Water law: (i) unofficial codes of Colorado’s mining districts in the late 1850s and early 1960s; (ii) sections of the 1876 state constitution and water-law statutes of Colorado’s legislature; (iii) decisions of the Colorado Supreme Court in the first decades of Colorado’s statehood; and (iv) ideological assumptions behind the law illustrated by contemporary sources. Schorr compliments the development of Western water law with an argument for questioning fundamental assumptions about the appropriation doctrine. Despite his profound departure from the established understanding of Colorado water law, Schorr effectively argues historical sources of water law collectively advanced the ideals of distributive justice as part of the broader nineteenth-century agrarian reform movement in American law.
Thus, Schorr’s analysis diverges significantly from the conventional story. The prior appropriation concept, qui prior est tempore potior est jure (“he who is first in time is first in right”), is not simply a reflection of the frontier ethics of individualism, initiative, and efficiency, but also the overarching principle of broad distribution of water rights. Both academic and legal institutions recognize early Colorado water law as a model for the Prior Appropriation Doctrine as it developed throughout the West. Adoption of prior appropriation eliminated the exclusive right of landowners with property adjacent to a stream the exclusive use of water, allowing a greater number of people to benefit. The original legal application of prior appropriation required actual beneficial use of water: no user could claim more water than needed and, therefore, no one user could profit from speculation in a resource belonging to all.
In The Colorado Doctrine, David Schorr closely examines the reasons for this rejection of Riparianism and the values embodied in the prior appropriation doctrine. According to Schorr, Colorado’s adoption of prior appropriation derived from two principles: (i) the limitation of appropriation to each individual the amount he could actually use, and (ii) the maximization of the number of owners able to stake a claim to water. In the arid west, limiting rights to riparian owners would deny the vast majority of citizens’ rights to an essential resource. Schorr argues the second principle of priority strikes a balance between equality and sufficiency within the concept of distributive justice because priority prevents appropriations that would leave another user without a viable share of water. Conflict resolution between such users depends on temporal priority, where “senior” users can demand a “junior” rights holder cease his diversion if it will not leave enough water for senior rights. Priority rules developed from the Lockean and Jeffersonian view of acquisition requiring actual use as an element of ownership, stressing the ideal of equality and limiting acquisition to an amount a person could directly use. Further, Schorr believes the appropriation doctrine is a prevention of speculation or “monopoly” control of water supplies in allowing “actual settlers” to trespass on riparian lands and divest land owners of common-law water rights those landowners did not apply to beneficial use.
Next, Chapter Three of The Colorado Doctrine analyzes the genesis of the appropriation doctrine itself in light of how territorial statutes, the Colorado state constitution, and early judicial decisions, laid the foundation of the doctrine, with the Coffin v. Left Hand Ditch Co. decision as the confirmation of the doctrine. Water-rights law in the Colorado territory continued to forward the main principles originating in Colorado mining laws. Colorado’s Constitution of 1876 recorded such principles: public ownership of the state’s surface waters, the beneficial use requirement, and the complete abolition of riparian privileges. Later, the 1882 Coffin decision reaffirmed the Colorado Doctrine. In its decision, the Court emphatically rejects the riparian rule. In doing so, the Court explains the nature of the riparian rule prevents useful and profitable cultivation of fertile soil by sanctioning waste on sterile lands adjacent to streams. The case emphasized the clarity of the Colorado Rule: riparian lands have no water right incidental to them; and, all landowners acquire rights only by use, regardless of their land’s location. Importantly, Schorr encourages the reader to acknowledge the potential consequence of a failure to recognize prior appropriations protection of a legal right in future flows— a disastrous race among irrigators, attempting to capture flows further and further upstream. Ultimately such a race would lead upstream users to monopolization what few watercourses the West had.
In Chapters Four and Five, Schorr continues by describing how, in the decades following Coffin, the appropriation doctrine curbed the power of corporations and speculators, reserving the state’s water to bona fide users. The Colorado Doctrine focuses on Colorado’s strict regulation of water corporations, discussing the historical difference between private property and corporate property, which motivated prior appropriation. Schorr then moves to discuss the beneficial use rule, the difficulties in allocating water, and the desired distributive justice created by the legal property regime. For a time the threat of corporate monopoly of water hung over the agricultural industry, but legislative action and court decisions ended this danger. Court decisions favoring consumer interests over those of “monopolistic” canal companies rested on the doctrinal basis of public ownership of all surface water and beneficial use as an element of water rights that a user could satisfy, but not a canal company. Colorado Law came down in favor of local settlers over absentee capitalists, building a system of water distribution on the basis of consumers as true proprietors, where the distributor or canal company serves as a user’s agent to care for the works and bring the water to the consumer’s land.
Finally, Chapter 6 highlights some theoretical issues historical study of the Colorado Doctrine raises. Schorr points out that economic efficiency was not the primary goal of prior appropriation. Rather, the goal was limiting appropriations in order to maximize the number of appropriators. His examination of additional economic incentives supports the claim distributional ideology played the dominant role in shaping Colorado water law in the nineteenth-century. The Colorado Doctrine demonstrates ownership of water rights in Colorado relied not on concerns for economic efficiency, but on social justice. Schorr maintains these principles express the values of the West at the time, reflecting a utilitarian ideal of “the greatest good for the greatest number.”
The Colorado Doctrine is a reconsideration of the common understanding of the development of the appropriation doctrine. Schorr argues the widespread distribution of resources, rather than economic efficiency, is the foundation of the Colorado Doctrine and the water law of the West. Schorr concludes with the need for a paradigm shift—where classifications of property regimes fully consider distributive justice. Water users should understand the evolution of the institution of water rights as an element of riparian property, and evaluate its desirability as a legal system, so that concentration of a given water resource may be a more significant consideration than the form of its allocation.
The Colorado Doctrine advances a cogent argument full of interesting historical details of western water law. Schorr does an excellent job of introducing the reader to his novel perspective on legal theory surrounding Colorado water. In writing The Colorado Doctrine, Schorr develops a comprehensive insight on how the prior appropriation doctrine deliberately created an anti-commons for purposes of distributive justice. His perspective is highly important, not only to understand Colorado water law, but also as insight into critical implications of future policymaking. The Colorado Doctrine’s is an apt contribution to both legal and economic history.
David Schorr, The Colorado Doctrine: Water Rights, Corporations, and Distributive Justice on the American Frontier. Yale University Press, New Haven & London (2012); 235PP; $65.00 ; ISBN 978-0-300-13447-6; hardcover.