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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drew considerable support until Wells pointed out that all water
originated as a small stream on someone's land.74

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Two final amendments were necessary before this prov1s1on could
be adopted. The first clarified any possible conflict between the
ownership of the waters by the public and the right of individuals
to appropriate water pursuant to the following section by inserting
the words "subject to appropriation as hereinafter provided" at the
end of the section.7s

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The second, along the same lines, substituted the words "the
use of the people of the state" for "their use." There is no record
of any debate over a distinction between the words "public" and
"people," and it appears that the delegates were not at all certain
about the exact relationship between the two. This was clarified
somewhat, however, in the next section on the right of appropriation.

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It is interesting to note that some delegates to the convention
believed that this entire section was meaningless, given the adopti,on
of the prior appropriation rule, and that the property interest . 76
acquired by appropriation should be left t~ the courts to determine.
The farmers, however, wanted to keep the allocation of water out of \
both the courts and the legislature, and wanted it clearly understood
that the water belonged to the people.77

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Although some commentators have suggested that the assertion of
public ownership in the waters was a repudiation of federal claims
to the water,78 there is no evidence in the record of such a concetn.
At the time, the federal government was not much concerned with
western water and, as evidenced by the 1866 statute,79 was willing
to recognize individual appropriations on federal lands.

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b. Prior Appropriation.

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There was never much doubt that the constitution would recognize
the doctrine of prior appropriation. Given the history of the state,
the miners' codes, and the territorial statutes, the general doctr:lne
was fairly well settled, except for certain preferences in the use of
water which would restrict the doctrine in certain areas '(see infri!).

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One issue which did arise was the meaning of the word "approp:ri-
ate." Chairman Plumb and certain other delegates wanted to make c,er-
tain that no rights in the water would vest in landowners simply by
virtue of the acquisition of riparian lands.80 Their intention was
to assure the right of newcomers to the state to appropriate water
which was not already in use, in order that the scarce resources of
the state could be put to full use in developing its econo~y.8l

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