The first water-privatization debate: Colorado water corporations in the Gilded Age

Contemporary debates over the worldwide trend toward privatization of water systems and supplies have a historical precedent in the controversies that raged in Gilded Age America over the control of irrigation-canal systems by eastern- and foreign-owned corporations. This Article shows how the law developed in Colorado in this period advanced the agrarian ideal of wide distribution of property in water by applying the principles behind the appropriation doctrine to water corporations claiming ownership of this crucial resource. The involvement of corporations funded by outside capital in Western water projects was seen as a threat to the contemporary yeoman ideal of small, family farms, an ideal that many hoped would solve the social and economic ills of the time. This Article discusses several concrete legal issues that arose in Colorado in the 1880s and '90s, demonstrating how the principle of public ownership of water and the use requirement were applied to curtail the power of water corporations and preserve the profits of irrigated agriculture for small-scale farmers. In conclusion, the Article discusses several implications of this early western water-corporation law. First, it calls into question the view of Gilded Age law as primarily serving the interests of the wealthy and powerful. Second, it challenges the common typology of property, in which private property is opposed with public, demonstrating that these two ideas can be in harmony, with the more important dichotomy distinguishing between widespread, diffuse ownership and concentrated ownership. Finally, the Article briefly points to several implications of this history for today's water-privatization controversies.