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

I

However, it is clear that Stone foresaw only a conflict between
mining and agriculture, for he then suggested an amendment to the
effect that water for domestic purposes should have preference "over
any other purpose," followed by the agricultural preference over
manufacturing. 103 This was adopted by the convention, and the sec-
tion, as amended, was sent to the Committee on Revisions and Adjust-
ments, which was chaired by Wells.

I

I

I

104 105
The March 6 and March 8 reports of this committee left
the preference clause intact. On the 8th, however, Wells moved that
the entire article on mining and irrigation be recommitted for final
adjustment. It was in his committee that the preference clause was
put into its present form, which, on its face, does leave mining
completely unrestricted.

I

I

One other type of preference was suggested in the convention and
its rejection has important implications for water law today. On
February 18, Mr. Stone offered an amendment to the preference clause
to the effect that "lands lying within the natural valley of any
stream shall have preference in right to the use of the water of such
stream, over lands lying without such natural valley."106

I

I

Bromwell supported this provision, interestinfl, enough, in order
to provide some protection to riparian landowners. 0 However, this
preference was rejected. Chairman Plumb's argument against it was
probably representative of the prevailing sentiment. Many men, he
said, had taken up lands lying along streams, holding them until
they could see if the territory would be a success and allowing their
neighbors to work to ensure that success. The land needed to be
developed if the agricultural economy was to survive and his committee
wanted to encourage settlers to make appropriations of water and
reward those who built diversions, even if that involved transport-
ing the water out of its basin of origin.l08

I

I

I

I

The preference prov1s10n has been interpreted by the Colorado
Supreme Court as conferring only the right of condemnation on the
preferred user.l09 Some commentators have suggested that the framers
of the constitution intended "true preference" without compensation.110
In light of the recorded debates over this provision, and the specific
inclusion of a compensation clause in the right-of-way section, this
is probably correct. However, it is odd that the convention, which
included several distinguished jurists and which sought recognition
of the existing rights of private owners in the debates over the
"property" section, should be so insensitive to those rights in
this context.

I

I

I

I

I

II-14

I
I