PUB00148

• Year: 1978
• Title: The Colorado Water Study Directions for the Future
• CWCB Section: Administration
• Description: The Colorado Water Study Directions for the Future
• Publications - Doc Type: Historical

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the use of water, (4) rights-of-way for ditches, and (5) rate-setting
by county commissioners. Although these issues are related, they
will be discussed separately.

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a. Ownership of the Waters.

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One problem with which the convention was soon confronted was
the question of who owned and controlled the waters of the state.
As evidenced by the Grange resolution in December, 1895, there was
a widespread feeling that the waters should not be monopolized by
private corporations.

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There was, however, another sentiment, strongly held by many
delegates, that the water not be subject to the control of the legis-
lature. On January 5, 1876, Mr. Carr (of the minority view) suggested
a provision that "[t]he primary right of ownership in the waters of
all the streams in this state is and shall be at all times in the
state, and the streams and waters therein are and shall be subject
to the control of the legislature.,,67

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The convention, led by Ebenezer T. Wells, who served on the 68
Territorial Supreme Court, was generally opposed to this suggestion.
The first report of Plumb's committee on irrigation on February 11
provided that "[t]he water of every natural stream within the State
of Colorado is hereby declared to be the property of the peo~le of
said state and the same is dedicated to their use forever.,,6

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This draft encountered strong opposition from those delegates
who felt that it threatened existing property rights. They perceived
it as denying the legitimate interests of those who already had con-
siderable investments in water diversions. They suggested an amend-
ment making this provision "subject to the rights and privileges of
private parties and municipalities to use the same as herein and
by law provided.,,70 Chairman Plumb tried to dispel some of the con-
fusion over the nature of the state's interest in the water by
explaining that this section was simply a declaration of existing
law and was subject to private rights in the water. Nevertheless,
an amendment was proposed limiting the declaration to the "unappro-
priated waters" of natural streams,7l and was ultimately accepted
by the convention.

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Another concern over this provision was that it might include
small streams which flowed entirely on one person's land. It was
felt that these streams should be the unrestricted property of the
landowner. 72 This sentiment echoed a California statute of 1854,73
but it was a curious assertion of riparian rights given the general
acceptance of the doctrine of prior appropriation in Colorado. It

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