ation; and in most of the water districts in which the question of priorities has assumed importance the law was promptly complied with. One hundred and two pages of State Engineer Nettleton's report for 1885 are devoted to giving the names of the ditches whose owners have complied with the law for the establishment of priorities. They are arranged by water districts, and show, in tabular form, the name of the ditch, the stream from which the water is diverted, the order of priority, the date of appropriation, the number of cubic feet of water per second appropriated to each priority, the summation of appropriations of each ditch or canal, and the number of cubic feet of water previously appropriated. In a few districts, however, the farmers have failed to act in the matter, some through indifference, others under the advice of counsel that the law is unconstitutional. This latter point has never been passed on directly by our Supreme Court; but in Dorr vs. Hammond, 7 Colo., 79, a point of procedure under the act was passed upon, the court apparently not having thought of any constitutional objection as existing; and in view of the importance which the question may some day assume in all the districts, it will hardly be advisable to "chance it" on this ground. In an adjudication by a referee, under the statute as to priority of water rights, the decree may be modified for error of the referee in his judgment upon the weight of the testimony.

Dorr vs. Hammond, 7 Colo., 79.

The report above referred to contains (pages 30-45) a very interesting and suggestive resume of the working of this law in the various districts in which it has

been complied with; and we may add that it is, as a whole, a veritable mine of data and general information on the subject, and a monument to the efficiency of the officer who prepared it.

CHAPTER VIII.

RIGHT OF WAY AND SERVITUDE.

Constitution of Colorado.

Art. II., Sec. 14. When Private Property may be taken for Private Uses.]

Private property shall not be taken for private use unless by consent of the owner, except for private ways of necessity, and except for reservoirs, drains, flumes or ditches, on or across the lands of others, for agricultural, mining, milling, domestic or sanitary purposes.

Art. II., Sec. 15. Compensation for Property taken.]

Private property shall not be taken or damaged for public or private use without just compensation. Such compensation shall be ascertained by a Board of Commissioners of not less than three freeholders, or by a jury when required by the owner of the property, in such manner as may be prescribed by law, and until the same shall be paid to the owner, or into court for the owner, the property shall not be needlessly disturbed, or the proprietary rights of the owner therein invested [divested]; and whenever an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be really public shall be a judicial question, and determined as such without regard to any legislative assertion that the use is public.

Art. XVI., Sec. 7. Right of Way for Ditches, etc.]

All persons and corporations shall have the right of way across public, private and corporate lands for the construction of ditches, canals and flumes, for the purpose of conveying water for domestic purposes, for the irrigation of agricultural lands, and for mining and manufacturing purposes, and for drainage, upon payment of just compensation.

The above sections entirely eliminate the question of "public use" in condemnation proceedings for irrigation purposes.

The "Eminent Domain" act, incorrectly printed as partof the "Code of Civil Procedure" in the compilation of 1883, "provides a complete system of procedure for the taking or damaging of private property, and determining the compensation therefor, when the same is authorized by law. It complies with the constitution in providing for a Board of Commissioners or jury, but is a special proceeding, and differs in many respects from our ordinary civil action."

Tripp et al. vs. Overocker et al., 7 Colo., 72.

G. S. 309. Right of way-Of water-Crossing-Priority.] Any ditch company formed under the provisions of this (corporations) act shall have the right of way over the line named in the certificate. [Sec. 275 (85), p. 171, G. L. full text of this may be found in ch. XVI.)

G. S. 1712. Right of way of Owners near Streams.]

(The

When any person owning claims in such locality (on the bank, margin or neighborhood of any stream) has not sufficient length of area exposed to said stream to obtain a sufficient fall of water to irrigate his land, or that his farm or land used by him for agricultural purposes is too far removed from said stream, and that he has no water facilities on those lands, he shall be entitled to a right of way through the farms or tracts of lands which lie between him and said stream, or the farms or tracts of lands which lie above or below him on said stream, for the purposes herein before stated. [Sec. 2, p. 67, acts 1861 --Sec. 2, p. 362, R. S.--Sec. 1373 (2), p. 515, G. S.

Said purposes are for the availing himself of the use of the water of such stream on his claim. (G. S. 1711., ch. II.)

In Yunker vs. Nichols, 1 Colo., 551, a case decided in 1872, this right was held to exist in favor of those

holding lands so situated as to make it necessary to cross the lands of others, independent of any statutory provisions. The court, Hallett, C. J., says: "When the lands of this Territory were derived from the general government, they were subject to the law of nature, which holds them barren until awaked to fertility by nourishing streams of water, and the purchasers could have no benefit from the grant without the right to irrigate them. It may be said that all lands are held in subordination to the dominant rights of others who must necessarily pass over them to obtain a supply of water to irrigate their own lands, and this servitude arises, not by grant, but by operation of law.”

G. S. 1713. Extent of such Right of Way.]

Such right of way shall extend only to a ditch, dyke or cutting sufficient for the purpose required. [Sec. 3, p. 67, acts 1861--Sec. 3, p. 363, R. S.-Sec. 1734 (3), p. 515, G. L.

G. S. 1715. Condemnation of Right of Way.]

Upon the refusal of the owners of tracts of land or lands, through which said ditch is proposed to run, to allow of its passage through their property, the person or persons desiring to open such ditch may proceed to condemn and take the right of way therefor (under the provisions of the "Eminent Domain Act"). [Sec. 1376 (5), p. 516, G. L.

G. S. 1716. Only one Ditch if practicable.]

No tract or parcel of improved or occupied land in this State shall, without the written consent of the owner thereof, be subjected to the burden of two or more irrigating ditches constructed for the purpose of conveying water through said property to lands adjoining or beyond the same, when the same object can feasibly and practicably be attained by uniting and conveying all the water necessary to be conveyed through such property in one ditch. [Sec. 1, p. 164, acts 1881.