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“First in time, first in right” became the common law for most western waterways. This<br />
principle was codified as governments formed in the area. Colorado Territory (and its 17<br />
original counties, including Boulder) was created on November 1, 1861. 4 The first-comefirst-served<br />
rule was then affirmed by the Colorado Territorial Legislature in 1862. By 1864,<br />
there were 23 ditch companies that had initiated claims for water rights on Boulder Creek<br />
based on actions taken to physically divert water out of the creek, but there would be a<br />
long way to go before an enforceable water rights system was developed. 5<br />
When Colorado became a state in 1876, its Constitution stated, “The right to divert the<br />
un-appropriated waters of any natural stream to beneficial uses shall never be denied.<br />
Priority of appropriation shall give the better right as between those using water for the<br />
same purpose.” 6<br />
If the miners had not established some system to fairly distribute the water, early Boulder<br />
residents might have resorted to “shovel diplomacy,” a term coined by a Colorado water<br />
attorney, the late George Vranesh, to describe what one miner would do if he discovered<br />
another miner diverting all the water upstream. The first miner simply “walked up the<br />
creek and hit the other miner over the head with his shovel.” 7<br />
This 2012 photo, or the headgate of Left Hand Ditch, shows the diversion dam that moves water from the<br />
South St. Vrain Creek into the Left Hand Ditch. Courtesy Donlyn Arbuthnot<br />
6
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