The Colorado Doctrine: Water Rights, Corporations, and Distributive Justice on the American Frontier

Abstract

More words have been diverted to the “Colorado doctrine” of prior appropriation and the 1880 case Coffin v. Left Hand Ditch Co. than necessary for a beneficial look at the development of western water law and its role in U.S. history. Historians and lawyers like to gaze in this stream and see their favorite theory about American history or law reflected, be it environmental determinism, economic efficiency, interest-group manipulation of the law to favor wealth and power, instrumental judicial decision making, environmental degradation in the service of economic growth, or, as in David Schorr's new book, distributive justice. Schorr seems to have the details correct, and that makes his book important and useful. He goes beyond the usual story of how courts in Colorado washed out of the law every iota of riparian rights, establishing the purest version of the appropriation system of water rights gained only by diversion and beneficial use. Through analyses of how lawmakers limited the meaning of priority, the role of ditch companies and water corporations, market transfers, and even the measure of beneficial use, Schorr shows how at every possible fork lawmakers limited water rights to those actively using water (mostly for irrigation) and only for the amounts actually used. They prevented results that could directly or indirectly allow someone to hold rights to water but not use them, to hold water for speculation or for sale, or to use as leverage to control other resources. And they did so often in opposition to the interests of powerful business and political leaders. When the waters settled, what lawmakers had fashioned were private property rights spread widely among the citizenry that served individual users well (the intent and design) and that were otherwise so constrained that they prevented not just speculation but also efficient transfers and the markets we normally associate with private property: an anticommons.