If at any time any ditch or reservoir from which water is drawn for irrigation shall not be entitled to a full supply of water from the natural stream which supplies the same, the water actually received into and carried by such ditch, or held in such reservoir, shall be divided among all the consumers of water from such ditch or reservoir, as well as the owners, shareholders, or stockholders thereof, as the parties purchasing water therefrom and parties taking water partly under and by virtue of holding shares and partly by purchasing the same to each his share pro rata, according to the amount he is then entitled, so that all owners and purchasers shall suffer from the deficiency arising from the cause aforesaid each in proportion to the amount of water which he should have received in case no such deficiency of water had occurred.
Source: L. 1879: p. 97, § 4. G.S. § 1722. R.S. 08: § 3175. C.L. § 1635. CSA: C. 90, § 18. CRS 53: § 147-3-13. C.R.S. 1963: § 148-3-13.
ANNOTATION
This section provides for prorating the water actually received into and carried by any irrigating ditch, canal, or reservoir among all the consumers therefrom in time of scarcity, so that all such consumers shall suffer proportionately from the deficiency of water. Farmers' High Line Canal & Reservoir Co. v. Southworth, 13 Colo. 111, 21 P. 1028 (1889); Larimer & Weld Irrigation Co. v. Wyatt, 23 Colo. 480, 48 P. 528 (1897).
This section does not take away the consumer's right to water; it simply regulates the use of this right. Farmers' High Line Canal & Reservoir Co. v. Southworth, 13 Colo. 111, 21 P. 1028 (1889).
The consumer is allowed only his percentage of such proportion of the priority as is available. Johnston v. Wanamaker Ditch Co., 95 Colo. 551, 38 P.2d 907 (1934).
Although in times of shortage these water owners may be best served by resorting to rotation and sectionizing, but when necessity demands a resort to these expedients they are as applicable to him as to others. Johnston v. Wanamaker Ditch Co., 95 Colo. 551, 38 P.2d 907 (1934).
The consumer is presumed to know that in times of scarcity his use may be subjected to two interruptions, viz.: First, that canals and ditches holding priorities antedating the diversion of his carrier may demand all the water in the natural stream, so that there will be none for him or any of his co-consumers; and second, that if there is water, but not the full quantity appropriated, he will be obliged to prorate with such co-consumers, and under these circumstances the consumer is hardly in position to resist the enforcement of the prorating statute or to assert that it operates harshly and unjustly upon him. Farmers' High Line Canal & Reservoir Co. v. Southworth, 13 Colo. 111, 21 P. 1028 (1889).
It cannot be so construed as to interfere with the constitutional rights of prior appropriators. Larimer & Weld Irrigation Co. v. Wyatt, 23 Colo. 480, 48 P. 528 (1897).
Giving this section a literal and unqualified interpretation, it manifestly conflicts with the constitution. Farmers' High Line Canal & Reservoir Co. v. Southworth, 13 Colo. 111, 21 P. 1028 (1889).
For those consumers using the water of natural streams for the same beneficial purpose, priority of use gives superiority of right, irrespective of the mode of diversion; and this rule is applicable to individual consumers, as between themselves, when they receive the water through the agency of an artificial stream as well as when they receive the same direct from the natural stream, and this section must be limited accordingly. Farmers' High Line Canal & Reservoir Co. v. Southworth, 13 Colo. 111, 21 P. 1028 (1889); Nichols v. McIntosh, 19 Colo. 22, 34 P. 278 (1893).
There is nothing in the assertion that this section, the prorating statute, insofar, at least, as it applies to cases like the one at bar, is class legislation, and for that reason void. It is in this respect purely remedial, and it was not intended, nor does it operate, to inflict burdens; its intent and its operation was and is to distribute them. It reaches all consumers having secured priorities through diversion by carriers alike; it makes no distinction among them; each and all are equally within its purview. Farmers' High Line Canal & Reservoir Co. v. Southworth, 13 Colo. 111, 21 P. 1028 (1889).
The provision may be properly carried into effect when the rights of all the consumers are equal in the matter of their respective appropriations, as when a ditch has been constructed as a common enterprise by and for the mutual and equal benefit of all the consumers therefrom, or when, by reason of contractual relations, waiver, or other circumstances, certain consumers stand on a footing of substantial and practical equality, having no priority of appropriation one over another. Farmers' High Line Canal & Reservoir Co. v. Southworth, 13 Colo. 111, 21 P. 1028 (1889).
Consumers taking water from the same carrier within a reasonable time after the carrier's diversion have the same constitutional priority dating from such diversion, and as to such consumers the prorating statute is constitutional. Farmers' High Line Canal & Reservoir Co. v. Southworth, 13 Colo. 111, 21 P. 1028 (1889).
The consumer who first uses may be compelled to prorate with another whose use is subsequent in date, but each consumer has a perfect right to go to the natural stream for the water he needs, and there is no law forcing him to deal with the carrier, and it is no answer to say that the overpowering law of necessity takes away his volition to choose, for he in fact makes his election when he purchases land so far from the natural stream as to compel reliance upon the carrier. Farmers' High Line Canal & Reservoir Co. v. Southworth, 13 Colo. 111, 21 P. 1028 (1889).
Evidence held insufficient to provide basis for apportionment. Grimes-Brooks Reservoir Co. v. Kayser, 180 Colo. 111, 502 P.2d 1104 (1972).