tft> COKNELL 
 
 /?/ UNiymiSITY 
 
 7?f LIBRARY 
 
HEARINGS 
 
 BEFORE THE 
 
 COMMITTEE ON THE PUBLIC LANDS 
 
 HOUSE OF REPRESENTATIVES 
 
 ON 
 
 H. R. 20493 
 
 A BILL FOR THE PROTECTION OF WATER SUPPLY 
 FOR MANITOU AND COLORADO SPRINGS 
 
 MARCH 14 AND 15, 1912 
 
 
 ■WASHINGTON 5 
 
 GOVERNMENT PRINTING OPriOE 
 1912 
 

 
PROTECTION OF WATER SUPPLY FOR MANITOU AND COLORADO 
 
 SPRINGS. 
 
 Committee on the Public Lands, 
 
 House of Representatives, 
 Washington, D. C, March I4, 1912. 
 
 The committee met at 10 a. m., Hon. Edward T. Taylor (acting 
 chairman) presiding. 
 
 The Chairman. I have taken the liberty of asking the committee 
 to grant a hearing to the city of Colorado Springs upon H. R. 20493. 
 That is the bUl, gentlemen, that was introduced by myself, author- 
 izing the city of Colorado Springs and the town of Manitou to buy 
 something like 14,000 acres of land on the north side of Pike's Peak 
 for the protection of their water supply. I introduced a bill along 
 this line over two years ago, but at that time there was some objec- 
 tion to the measure, and since that time we have endeavored in every 
 way possible to eliminate the objections that were made to the bill 
 then, and now the measure comes up again for consideration. The 
 duphcate of this bill is now in the Senate and has been referred by 
 them to the Interior and Agricultural Departments. I have not 
 referred this to the departments yet, but I expect to do so, unless the 
 bill first comes over from the Senate, together with the reports from 
 over there. But these gentlemen, Mr. Avery, the mayor of Colorado 
 Springs; and also the city attorney and two other prominent citizens 
 of that city are here, and they want to make statements to the com- 
 mittee as to the necessities, from their point of view, for this legisla- 
 tion, and I will ask the committee, if you will, to listen first to Mr. 
 C. L. McKesson, the attorney for the city of Colorado Springs, who 
 will present this matter to you. I may say, before Mr. McKesson 
 starts, that we have on the table in front of us a relief cast here of 
 Pike's Peak and the surrounding country. It is drawn to scale and 
 is accurate, and they have had it prepared and brought here at a 
 great deal of expense. The city authorities had it made for the pur- 
 pose of showing to this committee clearly and definitely what they 
 want and why these cities must have this relief, and also to explain 
 more in detail the matters contained in this bill introduced by myself. 
 Mr. McKesson, you may now proceed. 
 
 STATEMENT OF MR. C. I. McKESSON, CITY ATTORNEY OF 
 COLORADO SPRINGS, COLO. 
 
 Mr. McKesson. Mr. Chairman and gentlemen of the committee, 
 we are here in behalf of House bill No. 24903, introduced by Mr. 
 Taylor, of this committee, which is a bill asking for a grant of lands 
 to the city of Colorado Springs and the town of Manitou, in El Paso 
 County, State of Colorado. We believe, gentlemen, that when you 
 
4 PROTECTION OF WATER SUPPLY. 
 
 understand the conditions which surround our cities ia our part of 
 the country you will see that we are makiag a reasonable request in 
 asking for the grant of the land described in this bill. The city of 
 Colorado Springs is asking for about 10,000 acres of land, and the. 
 town of Manitou is asking for about 4,000 acres of land. We are 
 asking for these lands for the purpose of protecting our water supply. 
 The town of Manitou and the city of Colorado Springs are peculiarly 
 situated ; they are practically at the base of Pikes Peak, a mountaia 
 that is known throughout the entire world. They are the centers of 
 large tourist travel. There annually visit these cities and this region 
 from seventy-five to one hundred thousand persons, and this number 
 is increasing very rapidly from year to year. 
 
 We also have a resident population that is supplied with the water 
 which arises on these watersheds of Pikes Peak of about 35,000 to 
 37,000 people, so that, gentlemen, we have to supply annually from 
 13.5,000 to 140,000 people with water. I call your attention, gentle- 
 men, to this fact : That we are a center of attraction, a tourist center, 
 a center, I think, which is visited more than any national park in the 
 Northwest, by people from all over the world, as well as from all parts 
 of the United States. We feel that there is laid upon us a most serious 
 and binding duty, not only to those who permanently reside in that 
 district, but to those who are coming to us from all parts of the world, 
 and that is, gentlemen, that we shall have pure water, and that these 
 municipalities in the valley and at the foot of Pikes Peak shall not 
 become centers from which disease shall be spread to every part of the 
 country. Gentlemen, throughout the entire length and breadth of 
 this land there is a feeling among thousands and tens of thousands of 
 people that at some time during their lives they will visit Pikes Peak, 
 just as there is a desire among those of us born on the Western Plains 
 to see the Capital of our Nation. 
 
 Some of you gentlemen have been out there, and others of you will 
 no doubt go at some time or other. When you visit that beautiful 
 section of the country, which is one of the most interesting spots in 
 the Nation, you will want to come away from there at least as healthy 
 if not healthier than when you went. But you must have pure water, 
 if you are to come away recuperated, invigorated, and strengthened, 
 and unless you have pure water you can not enjoy yourselves while 
 you are there. So, gentlemen, we feel that we have a proposition 
 that will appeal to you differently from that which might or can 
 arise in many other localities, because of the fact that we are prac- 
 tically a park which is visited annually by so many people from 
 dilferent parts of the world. We are asking for the things which are 
 necessary to enable us to furnish pure water to ,those who are in that 
 locality, not only for our home people, but for those who are coming 
 to us from year to year, and it seems to me, gentlemen, if I can make 
 it appear to you that we actually need the lands asked for in this bdl, 
 in order that we may have an adequate supply of pure water for our 
 citizens and the visitors who come there, that I have presented a 
 matter to you which will receive your favorable consideration. I 
 believe that I can shoW you clearly that we need these lands. for this 
 purpose. 
 
 I first call your attention to the fact, gentlemen, that we are 
 peculiarly situated in this regard: That we must draw our entire 
 water supply from the watersheds of Pikes Peak. Perhaps no other 
 
PROTECTION OF WATER SUPPLY. 5 
 
 section in the world of equal size has such a watershed. This moun- 
 tain that towers 14,000 feet above sea level and 6,000 feet above the 
 adjoining towns, gathers the snows during the winter; these snows 
 melt during the summer and the water flows down into the valleys 
 and becomes the source of water supply for the villages and towns 
 in the valley. Having this small area from which we must draw our 
 water supply, we are confronted with this most unusual condition: 
 The very mountain from which we must draw our water supply is 
 the center of tourist travel. The moimtain from which our water 
 must come pure is overrun every summer by thousands and tens of 
 thousands of people ; they come on foot and with all sorts of convey- 
 ances; camping parties, fishing parties, and hunting parties are 
 tramping over this watershed of ours all summer. This mountain is a 
 center of attraction to which people from every part of the country 
 come every season. 
 
 As soon as they reach the villages at the base of this mountain 
 their first thought is to get out on this mountain, our watershed. 
 It is estimated that from 25,000 to 30,000 people walk to the top of that 
 peak each summer of every year, and a much larger number who never 
 reach the top of that peak scatter over and through the mountains 
 and valleys and along the streams on the sides of that peak. Gentle- 
 men, we must draw our water supply from a small section of the 
 country which, during the summer season, is overrun with people. 
 The question with us is, how we can keep the streams that feed oui 
 water reservoirs from carrying contamination, thereby rendering the 
 water impure for the cities and towns at the bane of the peak. We 
 are confronted with a problem that is very hard to solve; that is, 
 how can we under the conditions described keep our water supply 
 pure. Manitou's water supply is drawn from the eastern slope of 
 Pikes Peak, indicated on this rehef map by these blue areas here 
 [indicating], and comes from an elevation of about 11,000 feet. This 
 rehef map shows in the center here [indicating] Pikes Peak, which 
 reaches an elevation in excess of 14,000 feet. The brown area and 
 reddish area show the lands above timber line. This land lays from 
 11,000 to 14,000 feet in elevation. It is too cold for timber to grow 
 here. From the top of the peak here [indicating] down these several 
 sides there is no timber whatever! The areas that are marked in 
 drab show the mountains where the timber has been burned off in the 
 past and has not become reforested. There is practically no timber 
 on these burned areas. 
 
 Mr. Raker. Where is Colorado Springs located on this map ? 
 
 The Chairman. You can see from this map here. 
 
 Mr. McKesson. Here it is, right here [indicating]. 
 
 Mr. Raker. Where is Manitou on this cast ? 
 
 Mr. McKesson. Manitou is right down in the corner and Colorado 
 Springs is about 6 miles to the east of that. Colorado City lies 
 between these two places. Colorado Springs supplies Colorado City 
 with water. The land-embraced in the bill covers two sections, as I wiU 
 indicate to you in a moment. Our present water supply is drawn 
 from the south and southeast slopes of Pikes Peak, as you see here. 
 These blue spots represent different reservoirs, and from these [indi- 
 cating] the water is carried down to here [indicating] and to Colorado 
 Springs in a pipe line. Colorado Springs is about 18 miles from the 
 top of the peak. 
 
6 PROTECTION OF WATEE SUPPLY. 
 
 Mr. Raker. Which is north on the map ? 
 
 Mr. McKesson. North is over there [indicating]. This relief map 
 is not correctly drawn to indicate the points of the compaiss. 
 
 The city at the present time owns certain lands, and for the pro- 
 tection of its present water supply has fenced these lands. 
 
 Mr. Raker. When did you get them ? 
 
 Mr. McKesson. They were granted by Congress in 1893, I beliere. 
 These lands lie within that area there [indicating]. 
 
 Mr. Volstead. How much an area is that ? 
 
 Mr. McKesson. Seven thousand five hundred acres. 
 
 Mr. Volstead. Where is that located ? 
 
 Mr. McKesson. It is on the south and southeast sides of the peak. 
 Now, the city, in order to protect its water system from pollution, has 
 found certain things that were necessary for it to do. First, that the 
 land should be fenced with high barbed-wire fences, so as to prevent 
 cattle from straying in on the lands along the streams and to keep peo- 
 ple and campers and teamsters from entering these lands without per- 
 mission. People can enter these fenced areas if they have permission. 
 If it was not for these fences, the people could enter from every side. 
 
 Mr. RxjBBY. These present lands that are now owned by the city, 
 are these fenced in ? 
 
 Mr. McKesson. Yes, sir. 
 
 Now, an analysis of that water in the city's present water system by 
 an expert from Chicago shows the water in that system to be the purest 
 found in the country. 
 
 Mr. Rubey. Is not the supply that you get from that source 
 inadequate ? ^ 
 
 Mr. McKesson. No, sir. This system that we have is well pro- 
 tected, but we need about 1,100 acres more to fully protect this sys- 
 tem. We are asking at the present time for a little land, about 1,200 
 acres, and we are asking for this land in the present bill. Our water 
 system at the present time is indaequate. Almost every season we 
 are compelled to cut down the supply of necessary water because we 
 can not supply the present demand of our people for water. The 
 necessity has been laid upon us to extend our water system. This can 
 be done only by extending our system to the north slope of the peak. 
 The snows melt early on the south slope of the peak and in the early 
 part of the season we have an abundance of water, but as the season 
 progresses the water supply becomes short, so we have to cut down the 
 supply to our people. On the north side of the peak there is an 
 amount of snow that equals that which falls on the south side of the 
 peak. This snow melts later and the result is that when the snow has 
 practically gone from the south slope the north slope is furnishing a 
 good body of water. The city of Colorado Springs has bought land 
 for the purpose of building reservoirs on the north side of the peak. 
 It has bought lands for six reservoirs on this slope of the peak. These 
 reservoirs are indicated at the points I am showing you there. 
 
 The city already owns this land and it is ready to develop the 
 water on that portion of the slope. In order to develop that water 
 and buUd reservoirs, the city will be compelled to expend a million 
 and a half or two millions of dollars. Before expending that amount 
 of money we want to know that we can keep that part of our water 
 supply free from impurity and disease, so that you and others can 
 
PKOTECTION OF WATEB SUPPLY. 7 
 
 visit Pikes Peak without carrying away disease. We want all who 
 visit us to find recreation and comfort, and not disease and death. 
 We must have more water, and when we get it we want it as pure 
 as the water is in our present system. In order to keep the water 
 pure we must be able to protect these basins from which the water 
 flows into our reservoirs that we are about to buUd. These lands 
 are open at the present time so that cattle can stray upon them. 
 The Forestry Department of the Government has been kind enough 
 to refuse to allow grazing permits, but they can not prevent cattle 
 from straying over these lands. 
 
 Gentlemen, I have known of cases where cattle have gone in there 
 and become weakened by the winter and unable to get out of the 
 streams where they were found dead. It was suggested by the 
 Forestry Department that we might patrol this country. Gentle- 
 men, that can not be done without having an army of men on this 
 area to protect and keep out those cattle and the numerous people 
 who visit this section. In this rough, broken country animals 
 go up through these ravines and all in these timbers here [indicating], 
 and it is impossible to find them. We would have to station men 
 as close as fence posts around this section of the country to keep the 
 cattle off these watersheds. We have found from experience that 
 the lands must be fenced so that eattle can not get in and people can 
 enter only through gates like going into a national park. These 
 watersheds are open on all sides so that cattle and campers and 
 miners and woodcutters, all of these, can go into here [indicating]. 
 Many of these people who camp along the streams in this watershed 
 do not seem to realize the fact that people down here in the valley 
 have to drink the water from these streams, and they are so forgetful 
 of their fellow men that they throw the germs of disease in these 
 streams to be carried into the stomachs of their friends not far dis- 
 tant. 
 
 We are asking for these lands, which you see here are indicated by 
 this red mark [indicating], that lie in the basins around our reservoirs. 
 We are asking for the grant of these lands so that we can control them; 
 we are asking a grant of these lands so that we may have jurisdiction 
 over them, and I want to emphasize that proposition : So tidat we may 
 have jurisdiction over them, so that we can punish trespassers. As 
 long as the Government owns these lands the Forestry Department 
 can not keep persons out of there. This department has no right to 
 prevent a man from going on public land for a lawful purpose. You 
 may have your rules and regulations, but unless you can enforce them 
 you can not secure protection. 
 
 Mr. Rakee. Your idea, then, is that the rules and regulations of 
 the Forestry Department are not strict enough and severe enough 1 
 
 Mr. McKesson. No, sir; they are not strict enough and not severe 
 enough. Now, in the discussion before Secretary Wilson and Mr. 
 Potter the latter admitted these three propositions : First, that while 
 they might be able under existing legislation to give these cities 
 the right to fence these lands, there was no legislation at the present 
 time that would enable them to prevent trespassing upon these lands, 
 that any persons might enter upon those lands at the present time, and 
 there was nothing that would prevent them from doing so; second, 
 that he admitted there was nothing to prevent mining and prospect- 
 
8 PROTECTION OF WATER STJPl'Iiy. 
 
 ing, and persons entering upon those premises for such purposes; 
 thu-d, that only revocable permits could be granted for the use of 
 these lands by the municipalities. 
 
 Mr. Raker. Is it your contention, then, that there ought to be a 
 statute passed, or rules and regulations, providing that miners going 
 upon these lands should be prosecuted criminally for trespassing ? 
 
 Mr. McKesson. No, I think not. There ought to be nothing done 
 criminally; no rule of that kind. But I think the prospectors should 
 be kept out, because I think the health of the cities and citizens is of 
 greater value than the mineral that might be found in a country 
 which has been prospected from the time that men first went to the 
 mountains. 
 
 Now, in relation to the mining proposition of which mention has 
 been made. The lands we are asking for have been thoroughly pros- 
 pected. You can not go any distance on these lands but what you 
 will find prospect holes and tunnels from a few feet long to 800 feet 
 long. This mountain being next to the valley it was the first pros- 
 pected. The prospectors thought that as soon as they got to the 
 mountains they had found the place where gold naturally lies and 
 they have been working in this locality since men first went to the 
 mountains to find gold. The fact remains, however, that in this 
 locality, which is covered by the lands for which we are asking a 
 grant, no mineral of value has ever been found. I think that no one 
 can say that there has ever been shipped from this entire locality a 
 single ton of profitable ore, but it is still being prospected, not by 
 the men who understand prospecting, who understand what is neces- 
 sary in order to find minerals, but it is being prospected by the 
 tenderfeet who come to the West and like the old-timers believe 
 that they can ply their Vocation successfully wherever there is a 
 high mountain. They are still plying their trade. 
 
 Mr. Volstead. The digging habit ? 
 
 Mr. McKesson. Yes, sir. And you can understand whstt it 
 means for a prospector to go and establish a camp on one of those 
 streams from which we get our drinking water; they are not thought- 
 ful of the health of the people in the valleys. We want to keep the 
 campers, fishers, and others out, but we can not do it except by 
 fencmg those lands. 
 
 Mr. Raker. Are there any private lands there owned by 
 individuals ? 
 
 Mr. McKesson. Yes, sir; they are indicated by the lines here 
 [indicating], but of course we will have to buy out those lands. We 
 want the title to this land, so that it will not be open to entry. The 
 land must be withdrawn from entry, so that we can protect the 
 city from the man who makes entries for the purpose of selling 
 rights of way to the city. We want the title so that we may "not 
 be constantly meeting conditions of that kind. 
 
 There is one other point that I want to bring to your attention: 
 The only character of permit that can be granted by the Forestry 
 Department is a revocable permit. 
 
 Mr. Raker. Is not that a good one? 
 
 Mr. McKesson. No, sir. 
 
 Mr. Raker. Why not ? 
 
 Mr. McKesson. My reason for thinking that is this: You do not 
 know how long that permit will be good because you do not know 
 
PROTECTION OF WATEE SUPPLY. 9 
 
 what the next administration is going to be ; you do not know what 
 their pohcy is going to be. 
 
 Mr. Raker. Is it not to the interest of the Government that they 
 should have a revocable permit ? 
 
 Mr. McKesson. I think so far as individuals are concerned that 
 might be true, but we can not build cities on revocable permits, 
 because we do not know what moment we may be shut out of a water 
 supply. 
 
 Mr. Rakee. How much of water power is there in these places ? 
 
 Mr. McKesson. There is considerable. If we invest or expend, 
 say, $2,000,000 for fencing these lands and for building these reser- 
 voirs on a revocable permit, the next administration may have a 
 Forestry Department that takes an entirely different view of things 
 from that which granted us the right to use the lands, and we might 
 lose all by a revocation of our permit. Now, can we be expected to 
 build a water system on a territory over which we have control 
 simply by a revocable permit ? 
 
 Mr. Rakee. You think there is any difference between a citj' asking 
 for that and a private individual ? 
 
 Mr. McKesson. Yes, sir; I think there is a vast difference in this. 
 Cities are permanent institutions; Pikes Peak will be here when we 
 are gone; the cities are there now and will be there permanently. 
 Pikes Peak will never lose its interest. 
 
 Mr. Rakee. As a legal feature of it, what difference will it be as 
 between a private individual or corporation developing a water supply 
 and the public ? 
 
 Mr. McKesson. I would think that there would only be this dif- 
 ference: As things are developed for the interest of the public, they 
 have a better standing than thmgs developed for a private corporation. 
 
 The Chaieman. If you bond a city for 12,000,000, they would not 
 want, and would not do so, to put that much money in an enterprise 
 unless it is a permanent investment ? 
 
 Mr. McKesson. When the Secretary of Agriculture reported unfav- 
 orably on our bill before, he suggested that they would give us cer- 
 tain kinds of use permits. Yfe found we could not develop the 
 water system under such permits and our business men, who are 
 interested in the welfare of our city, declared that we could not afford 
 to develop this system under that character of permit and that the 
 only thing was to ask for these lands in order to build this system 
 and adequately protect it after it has been built and erected. 
 
 Mr. Mondell. You were speaking about the adverse report of the 
 Department of Agriculture on the former bill. As you recall the 
 former bill, was it a grant of these lands to the three municipalities — 
 Colorado Springs, Manitou, and another one that was purported to 
 be a municipality. Cascade, which was disclosed at the hearing to be 
 not a municipality at all — and furthermore, that at that time, as I 
 understood the measure, it involved getting the land for practically 
 nothing, I believe, and the Forestry Department reported that the 
 timber on that land was worth $45,000 ? The bill has been changed 
 and as I undertstand it, this alleged municipality of Cascade has been 
 omitted. Do you know what now is the attitude of the department 
 referred to ? 
 
 Mr. McKesson. The attitude, as I gather from Secretary Wilson 
 and Mr. Potter, is this : Mr. Potter stated very frankly to Secretary 
 
10 PROTECTION OF WATER SUPPLY. 
 
 Wilson that these municipalities needed the protection of their 
 water systems asked for, but that it was evident to him that 
 the present law was not adequate to grant the relief required, 
 and that there must be a change of existing legislation which would 
 enable the municipalities named to adequately protect the water 
 supply. He stated the cities should have jurisdiction over the land 
 to prevent trespassing; that the permits should not be revocable; 
 and that the lands should be withdrawn from entry. Secretary Wil- 
 son realizing that the department could not grant us the relief asked 
 for, asked Mr. Potter to formulate some general biU which would 
 grant us and all other municipalities similarly situated the relief 
 asked for, and urged upon Mr. Potter to cooperate with the Interior 
 Department so that they might at the earliest date possible formulate^ 
 some general legislation which would meet the necessity of cases like 
 this one. 
 
 Mr. MoNDELL. Does the land now included in this bill correspond 
 with the land included in the other bill ? 
 
 Mr. McKesson. Almost entirely. Here [indicating] is the land 
 that we are asking for at the present time, this reddish line. This red 
 line indicates the 9,000 acres asked for. 
 
 Mr. MoNDELL. What further land did the other measure include? 
 
 Mr. McKesson. That other measure went farther over here [indi- 
 cating]. We found that we had gone over into this watershed from 
 which we draw no water. 
 
 Mr. MoNDELL. Where is the town of Cascade ? 
 
 Mr. McKesson. That is here [indicating]. 
 
 Mr. Mondell. Where is that Cascade Creek which the testimony 
 seemed to disclose had enough power to heat and light a whole com- 
 munity ? 
 
 Mr. McKesson. That is right in there [indicating]. 
 
 Mr. Mondell. Over in these blue lines ? 
 
 Mr. McKesson. Manitou is asking for that. 
 
 Mr. Mondell. What is the name of this creek here [indicating] ? 
 
 Mr. McKesson. This is Fountain Creek here [indicating], and this 
 is Cascade Creek. 
 
 Mr. Mondell. And the Cascade Creek flows into the Fountain 
 Creek? 
 
 Mr. McKesson. Yes, sir. 
 
 Mr. Mondell. So you do not seek to control the waters of the Cas- 
 cade Creek which flow into the' Fountain Creek from which you get 
 your supply ? 
 
 Mr. McKesson. No, sir; we get our supply away above that. 
 
 Mr. Mondell. You get your supply from this Crystal Creek here ? 
 
 Mr. McKesson. In order that you may understand that, I will say 
 that if we developed these lands here [indicating], this water system 
 here, our water stored in this place here [indicating] is carried from 
 here [indicating] to here [indicating] ; it never gets into the Fountain 
 Creek at all. 
 
 Mr. Mondell. What is the reason for excluding this strip through 
 here [indicating] ? 
 
 Mr. McKesson. We have no reservoirs on this creek here [indi- 
 cating] at the present time. This little creek supplies the town of 
 Cascade. It is a town, but it never has been incorporated, and it is 
 owned by private parties, although a great many people in the 
 
PROTECTION OF WATER SUPPLY. 11 
 
 summer time go in there and spend the summer. This water from 
 this creek down here supplies the people with water down here. 
 
 The Chairman. That was in the former bill ? 
 
 Mr. McKesson. Yes, sir; because these people were asking for a 
 grant of these lands. It ought not to be granted to them until they 
 are incorporated as a municipality, and we cut them out this time, 
 which I tnink is right. 
 
 Mr. Raker. Manitou is down about here, is it not ? 
 
 Mr. McKesson. Yes, sir. 
 
 Mr. Raker. This particular blue-line mark, is that the particular 
 tract that you desire to be granted to Manitou ? 
 
 Mr. McKesson. Yes, sir. 
 
 Mr. Raker. What creek is that [indicating] ? 
 
 Mr. McKesson. French Creek. The city of Colorado Springs is 
 asking for a grant of land in here [indicating], as they expect to build 
 two reservoirs in here [indicating], and Manitou is to build a reservoir 
 in here [indicating]. 
 
 Mr. Raker. Suppose you get this land over on the north side that 
 you have marked here for Colorado Springs, how are you going to 
 get that into your system for the springs ? 
 
 Mr. McKesson. We will carry that across the mountains by pipe 
 line over into this system over here [iadicating]. The city will build 
 two reservoirs, one on Catamount Creek and one on Crystal Creek. 
 It will carry the water from these reservoirs at an altitude of about 
 9,000 feet around the base of the mountains into its present water 
 system that flows down Ruxton Creek. The fall here would not be 
 very great. 
 
 Mr. Raker. What is the elevation of the present reservoirs ? 
 
 Mr. McKesson. The lowest 10,237 and the highest 12,000 feet. 
 
 Now, one word further in regard to Manitou. Manitou lies between 
 the two systems to be developed by Colorado Springs. Its watershed 
 consists of the French Creek and its branches. It desires to build a 
 reservoir on the French Creek. It is asking for the lands which shed 
 the waters into this stream. I call your attention to how this situa- 
 tion must seem to people who are on the grounds. Manitou is a city 
 with a population of about .3,000 people, with a large summer popula- 
 tion, on account of the iron springs and the mineral springs being at 
 Manitou, and the fact that it lies at the base of Pike's Peak. The 
 present bill provides that we shall purchase these lands on the 
 stumpage basis, paying the Government the present stumpage value 
 on these lands. This means that Manitou will have to pay $25,000 
 or $30,000 for the land asked for in this bUl. 
 
 Mr. Raker. That is because the Forest Service reported that bill 
 two years ago, because you were trying to get $45,000 worth of 
 timber for nothing practically ? 
 
 IVIr. McKesson. Yes, sir. 
 
 Mr. Raker. And now you claim that you will buy all of that timber 
 on the basis of the stumpage value? 
 
 Mr. McKesson. Yes, sir. 
 
 Mr. Pickett. There were some other gentlemen here representing 
 some other interests; what are they? 
 
 Mr. McKesson. The Empire Co. 
 
 Mr. Pickett. They came to see me, but I did not go into the matter 
 with them ; but in view of the fact that they were going to hold hear- 
 
12 PROTECTION OF WATER SUPPLY. 
 
 ings, I thought it would be well to have Mr. McKesson explain the 
 whole situation. 
 
 The Chairman. Wliy didn't the people come in here? 
 
 Mr. McKesson. I do not know. 
 
 The Chairman. I saw Mr. Holland here this morning and he 
 declined to come in here. I feel that he ought to come in here. 
 These people I have kept a week. 
 
 Mr. McKesson. I was going to ask Mr. Pickett whether he had 
 learned from Mr. HoUand this morning whether the Empire Co. was 
 disposed to enter objections against the grant of these lands. There 
 have been negotiations pending between the Colorado Springs and the 
 Empire Co., which we thought had been consummated, which would 
 amicably settle their differences, but they did not reach a conclusion. 
 Yesterday the committee from Colorado Springs had a conference 
 with the representatives of the Empire Co. WhUe we were not able 
 to reach an agreement, and perhaps never will be able to reach an 
 agreement, it seemed as a result of that conference that there was a 
 disposition upon the part of the Empire people to take what we 
 thought was a fair view of the matter. 
 
 Mr. Pickett. Who is Mr. Hall ? 
 
 Mr. McKesson. He represents the chamber of commerce. 
 
 Mr. Pickett. He is on your side, then ? 
 
 Mr. McKesson. Yes, sir. 
 
 Mr. Pickett. He came to see me a few weeks ago. 
 
 Mr. McKesson. Let me explaiii our situation with reference to the 
 Empire Co. A number of years ago, when we were building this 
 water system, we had to run some tunnels — when I speak of "we" I 
 mean Colorado Springs 
 
 Mr. Raker. Two companies ? 
 
 Mr. McKesson. Yes, sir. 
 
 Mr. Raker. And opposed to you ? 
 
 Mr. McKesson. Yes, sir. They are practically one company, under 
 the same management, but just simply two corporations under differ- 
 ent names. Now, in order to carry this water down and get it into 
 our reservoirs there had to be a tunnel run through the backbone of 
 the peak about a mile long. The contractor took the contract to do 
 that work for a certain amount. He encountered some difficulties 
 which made it impossible for him to complete the contract without 
 losing a great amount of money. The city faced the proposition of 
 not getting its tunnel completed and made some kind of arrangement 
 with him. That was in the year 1898. They granted to this man 
 Jackson and his assigns a franchise for 25 years, giving them the right 
 to take the power, and put up power plants for the purpose of taking 
 the power from the water in the then water system of the city, and any 
 addition to that system during the life of the franchise. We are in 
 this pecuhar situation under that franchise: All the power that is 
 developed by this water going down these slopes on Pikes Peak, or 
 that we might develop between now and 1923, which is the period 
 covered by this franchise, can be used by the owners of that franchise; 
 they can put up their power plants at any point on our present system 
 as now developed or as may be developed up to 1923. The city 
 council started to annul this franchise, but the courts refused to do 
 that. The citizens of Colorado Springs are bitterly opposed to this 
 franchise. 
 
PROTECTION OF WATER SUPPLY. 13 
 
 Mr. Rakek. Then, Colorado Springs or the city has no right to use 
 the power developed by any of its present systems? 
 
 Mr. McKesson. No, sir; and that apphes to the future up to 1923. 
 
 Mr. Pickett. Have they ever done anything in the way of con- 
 structing a plant? 
 
 Mr. McKesson. The light company is supplying the towns of 
 Colorado Springs and Manitou with light. They have a power plant 
 that generates from eighteen to forty thousand kilowatts. 
 
 Mr. Pickett. Where do they get that from ? 
 
 Mr. McKesson. From this power plant. 
 
 Mr. Pickett. At some creek? 
 
 Mr. McKesson. Ruxton Creek. The water is carried down in 
 pipes on the banks of Ruxton Creek to the top of Manitou Mountain, 
 and from there it has a.fall of about 1,000 feet. 
 
 Mr. Pickett. Is their franchise a power franchise? 
 
 Mr. McKesson. Their franchise is to extract this power from the 
 city's water system. We are facing this other unfortunate condi- 
 tion, too. The concluding paragraph of the franchise says that the 
 city wiU extend the franchise, if Jackson and his assigns wish it ex- 
 tended, on such terms and conditions as the then city council may 
 see fit to grant. Now, there is the clause that fills our people with 
 apprehension. We do not know just how the courts may interpret 
 this provision. The light company has the power franchise until 
 1923, and how much longer they may have we do not know definitely. 
 
 Mr. RuBEY. This legislation that we are talking about will not 
 affect that? ' 
 
 Mr. McKesson. No, sir. 
 
 Mr. Raker. If they develop this they have the same right on this 
 as the present one ? 
 
 Mr. McKesson. Yes, sir; that is true. I want you to distinctly 
 understand that they would have the same right on that. 
 
 Mr. Raker. If they get the full power of the reservoir here [indi- 
 cating] it would flow your town away, if the pipes bursted; from 
 the lake down to the present point where the company puts its pipes 
 in here [indicating], there would be a plenty of fall down there ? 
 
 Mr. McKesson. Yes, sir. 
 
 Mr. Raker. With all of that power developed there already, the 
 city could now put in a sufficient amount of pipes, that they could 
 develop more power than the people are developing on the lower part 
 of the stream ? 
 
 Mr. McKesson. No, sir. 
 
 Mr. Raker. From the lake down to this point ? 
 
 Mr. McKesson. You would have to let the water in open cuts. 
 You could not pipe that water down there. If we developed the 
 power there, they would have the right to that power. They have 
 the- right to all the power on that system during the life of that 
 franchise. 
 
 Mr. Raker. You are, then, under their control ? 
 
 Mr. McKesson. Yes, sir; but they can not contaminate the water, 
 though. The Empire Co. has holdings on the north side of the peak, 
 and they located certain reservoirs over here to use this water on the 
 north side of the slope for power purposes, and the city came in and 
 bought the lands that the Empire Co. intended to use and got their 
 reservoir sites. The Empire Water & Power Co. is wanting the city 
 
14 PEOTEGTION" OF WATER SUPPLY. 
 
 to buy its holdings. The president of the Colorado Springs Light, 
 Heat & Power Co. and the president of the Empire Water & Power 
 Co. are the same, and a number of the directors in both companies 
 are the same people. In our negotiations we reached this point: 
 The city of Colorado Springs agreed to buy all the Empire Co. lands 
 and water rights provided the light company would release these 
 lands and the water rights from the operation of the Jackson fran- 
 chise. 
 
 Mr. Rakee. Are you under any other agreement with these corpora- 
 tions, or either of them, that if you got permission from the Govern- 
 ment to go up there and develop a new system that they would have 
 you under the present contract ? 
 
 Mr. McKesson. I think there is no such agreement, but the Jackson 
 franchise would give them the use of the power. 
 
 Mr. Rakee. Suppose you went to the department, and the reser- 
 voirs which you have there now are entirely new, and develop a system 
 and got permission from the Government to use that water to supply 
 your people with, is there a contract by which the city of Colorado 
 Springs is bound up in advance, before they got any property at all, 
 to turn right over to these two corporations ? 
 
 Mr. McKesson. Those who have examined the franchise believe 
 that any water we develop or any power during the Ufe of that fran- 
 chise will go to them. 
 
 Mr. Rakee. So you have no system at all ? 
 
 Mr. McKesson. No, sir. 
 
 Mr. Rakee. You haven't any rights except these contracts 
 
 Mr. McKesson. Yes, sir. 
 
 Mr. Rakee. You haven't any right to develop any electricity, 
 or 
 
 Mr. McKesson. Yes, sir. 
 
 Mr. Rakee. Or the springs for town purposes ? 
 
 Mr. McKesson. We have some rights there. 
 
 Mr. Rakee. Suppose you developed an entirely new system. I 
 understand that you are still bound up in the future by contract that 
 will prevent you from doing that and that these corporations will still 
 have a right to use your property as you stated ? 
 
 Mr. McKesson. There is a possibility for our escape. 
 
 At this juncture the committee took a recess until 10.30 a. m. 
 tomorrow, March 15, 1912. 
 
 COMMriTEE ON THE PuBLIC LaNDS, 
 
 House of Repeesentatives, 
 
 Washington, March 15, 1912. 
 The committee met at 10.30 a. m., Hon. Edward T. Taylor (acting 
 chairman) presiding. 
 
 STATEMENT OF HON. C. L. McKESSON, CITY ATTORNEY OF 
 COIOEADO SPEINGS, COIO.— Continned. 
 
 Mr. McKesson. I expect to take but very little of the time of the 
 committee this morning. At the conclusion of the remarks which I 
 made on yesterday, I was trying to inform you of the situation in 
 
PROTECTION OF WATER SUPPLY. 15 
 
 Colorado Springs with relation to certain utility corporations that 
 have franchises or water rights on Pikes Peak. My reason for men- 
 tioning this matter is that when this bill was before the House and 
 before this committee there was an extensive brief filed by the repre- 
 sentatives of the Empire Co. protesting against the grant of these 
 lands to Colorado Springs, stating as their reasons, "which were set 
 forth in their statement which was made at that time, that their 
 rights would be greatly prejudiced if such a grant were made to these 
 municip alities . 
 
 Mr. VOLSTEAD. "What did they base that prejudice on ? 
 
 Mr. McKesson. They contended, briefly, that if this grant was 
 made to Colorado Springs that it would cause a loss to them of certain 
 water rights which they hold on the north slope of the peak. 
 
 Mr. Raker. I would like to ask you, Mr. McKesson, whether or 
 not there were any hearings taken ia writing ? 
 
 Mr. McKesson. No, sir; it was just simply a brief filed by the 
 Empire Co. 
 
 Mr. Raker. And no hearing had? 
 
 Mr. McKesson. No, sir. 
 
 The Chairman. I do not think it was reported, if there was any 
 hearing. 
 
 Mr. Raker. Have you got a copy of that brief? 
 
 Mr. McKesson. We have a copy of both briefs that were filed at 
 that time. 
 
 Mr. Pickett. Was a copy filed with the committee ? 
 
 Mr. McKesson. Yes, sir. Wliat I was going to say in regard to 
 that matter was that negotiations have been pending for some time 
 between the Empire Co. and the city of Colorado Springs looldng to 
 an adjustment of their differences, but no adjustment has been 
 reached up to this date. 
 
 Mr. Pickett. Have the negotiations been terminated or are they 
 stOl pending ? 
 
 Mr. McKesson. They are still pending, but with very little chance 
 of settling the matter; but a conference with the representatives of 
 the Empire Co. day before yesterday led us to think that they do 
 not feel it their duty at the present time to appear before this com- 
 mittee and oppose the grant of these lands. We invited them here 
 yesterday, and we invited them here again to-day. I do not know 
 why they do not come here. I do not know whether they wOl file 
 anything here for the purpose of opposing these grants. 
 
 Mr. Raker. Can they make use of their water rights to any advan- 
 tage without making use of Government lands ? 
 
 Mr. McKesson. No, sir; they can not. Briefly, I will state the 
 situation as it exists between Colorado Springs and these com- 
 panies at the present time. The Empire Co. purchased certain sur- 
 veys on the north side of the slope through a promoter, who said 
 that he was going to develop power rights on that slope of the peak. 
 
 Mr. Fergusson. Was this all inside of the forest reservation ? 
 
 Mr. McKesson. Yes, sir. The company started to buy certain 
 lands for the purpose of locating reservoirs thereon. They refused 
 to pay the price which the owner of the lands wanted and began con- 
 demnation proceedings. At the time the condemnation proceedings 
 were begun the city of Colorado Springs took an option on these 
 
16 PROTECTION OF WATBE SUPPLY. 
 
 lands, and they purchased them before the condemnation proceedings 
 had gone any more than simply being filed in court. So the city 
 acquired practically all the land in order to buy reservoirs. The 
 Empire Co. still has 1,080 acres of land. 
 , Mr. Raker. The Empire people ? 
 
 Mr. McKesson. Yes, sir; and scattered in different parts of the 
 district on the north side of the slope. 
 
 Mr. Rakee. Inside of the land that you are seeking to get ? 
 
 Mr. McKesson. Yes, sir; I think all of it. 
 
 Mr. Raker. If you succeeded in getting this, it would be your 
 idea in condemning other land that the company owns and have it 
 go to the city? 
 
 Mr. McKesson. Yes, sir. 
 
 Mr. Raker. And the reservoir? 
 
 Mr. McKesson. There is no reservoir built at the present time, 
 and they are unable to build any reservoir by reason of the fact that 
 the city or the Government owns the lands, and they can not con- 
 demn to build the reservoir. They can not condemn the city's lands. 
 
 Mr. Raker. And the Government has not given them these rights ? 
 
 Mr. McKesson. They have been unable to get any permit to use 
 the Government's lands and so they have been unable to develop any 
 power on the peak. 
 
 Mr. Raker. Had they spent any money on that branch of it ? 
 
 Mr. McKesson. Yes, sir. Last year they put in a little power 
 plant which probably cost ten or twelve thousand dollars, and they 
 utilize the flow of the stream for the purpose of furnishing lights to 
 the little village of Green Mountain Falls. They have spent about 
 ten or twelve thousand dollars in connection with that plant. 
 
 Mr. Raker. They will have to deal with the city ? Do they pro- 
 pose to enlarge that plant at that point ? 
 
 Mr. McKesson. They can not without flooding either the city or the 
 Government lands. 
 
 Mr. Raker. Is that what they aim to do ? 
 
 Mr. McKesson. That is what they would like to do. I think that 
 is the reason why they are not opposing this bill to-day. They will 
 be in no more position after the grant to the city than they are now. 
 
 Mr. Raker. Suppose in making this grant we should put in some 
 restriction under which some one might be authorized to fix the 
 maximum price of power, would it be of any advantage to your people ? 
 
 Mr. McKesson. I think not. If you will bear with me I will give 
 you briefly the matter of the negotiations, just where we stand at the 
 present time. The Empire Co. told us very plainly that they had 
 sufficient influence in Congress to prevent us from securing the grant 
 of lands in this locality, and that unless we made terms with them 
 any efforts that were put forth in this direction would be futile. 
 
 Mr. Raker. Did they tell you where the influence lies ? 
 
 Mr. McKesson. No ; they did not, except that they said to us that 
 the Susquehanna Light & Power Co., one of the largest general holding 
 companies in the East, was the owner of the Colorado Springs Light, 
 Heat & Power Co., and the president of that company and the presi- 
 dent of the Empire Co. were one and the same person; that we should 
 realize the fact that through the influence of a company so large as 
 that the matter might be stalled, and it could not be put through 
 
PROTECTION OP WATER SUPPLY. 17 
 
 except by the earnest cooperation of all parties and no opposition 
 from any source. 
 
 Mr. Raker. They did not tell you how they were going to use their 
 influence ? 
 
 Mr. McKesson. No, sir; they did not. 
 
 Mr. Raker. Or in what way or what particular method they were 
 going to use ? 
 
 Mr. McKesson. No, sir; they did not. 
 
 Mr. Raker. Did you take from their statement that their power 
 was such that they could prevent this legislation ? 
 
 Mr. McKesson. We feel that if this company, connected as it is 
 with large corporate interests, should use all its influence and power 
 against us, it would be a hard matter for us to get any grant of lands. 
 
 Mr. Raker. Your application is not made in the interest of these 
 companies ? 
 
 Mr. McKesson. I hardty see how that could be. I know that no 
 just claim of that kind can be made. I was in the House the other day, 
 and I listened with a great deal of interest to statements made there 
 about a small matter concerning the course of a department being in 
 the interests of certain corporations against the Government's public 
 policy. 
 
 Mr. Rakek. Is it not true that the city of Colorado Springs and the 
 town of Manitou have at all times and have in this bill expressly 
 waived any claim to any right whatever that the Empire people now 
 have with regard to water rights or anything else and disclaimed any 
 desire or intention of interfering with any oi their vested rights ? 
 
 Mr. McKesson. Yes, sir. 
 
 The Chairman. And is not the position of the company, as ex- 
 pressly stated by Mr. Holland, not because of the city's willingness to 
 recognize all rights then and not interfere with them, but that they 
 do not want the city to get rights that will allow it to expand its irri- 
 gation system or waterworks system in the hope that they may get it 
 themselves ? 
 
 Mr. McKesson. Yes, sir. 
 
 Mr. Raker. But if this grant is made, will not these companies get 
 the opportunity to develop this water power ? 
 
 Mr. McKesson. Not to develop; but if it was developed by the 
 city during the life of the Jackson franchise — its francliise expires in 
 1923 — they might have the right to use that water for that length of 
 time. 
 
 Mr. Raker. If you buUt the reservoirs that you speak of, would 
 not the fact that you built them create a water power ? 
 
 Mr. McKesson. Water would be conducted from these reservoirs 
 to Colorado Springs. 
 
 Mr. Raker. You would have to throw the water back over some 
 of this Government land and letting it out from your other town, 
 which would have given a fall that would be utilized for water power, 
 wouldn't they, under the ordinance or the franchise that you have 
 referred to, have a right to make use of that water in creating electric 
 energy ? 
 
 Mr. McKesson. We would dispute that proposition with them, but 
 the chances are that they would be able to utilize that power during 
 the life of the franchise. Mr. Raker suggested a matter that I was 
 39682—12 2 
 
18 PBOTECTIOK OF WATEK SUPPLY. 
 
 thinking about a few moments ago, and that is whether the develop- 
 ment of a system so far distant 
 
 Mr. Raker. Supposing that the committee report favorably upon 
 this bill and the biir should be passed, could not a provision be placed 
 in the bill binding the city of Colorado Springs so that they could not 
 allow these people to exercise any right of control under any agree- 
 ment that they have had heretofore ? 
 
 Mr. McKesson. I would not be able to say a provision of that 
 kind could be made without rendering the grant void. 
 
 Mr. Rakee. a new right and a new interest, wouldn't Congress have 
 the power to say that they should not contract it away, any water 
 power generated by this grant, and would not that of itself prevent 
 the consiunmation of any attempted arrangement that they had made 
 before on something that Colorado Springs never had ? 
 
 Mr. McKesson. They might be able to accomplish it along that line. 
 
 Mr. Raker. As I understand you, the courts have already decided 
 that this franchise is a contract right ? 
 
 Mr. McKesson. Yes, sir. 
 
 Mr. Raker. Wouldn't this question be answered by stating, in so 
 far as Congress is concerned, that it would not be an act infringing the 
 obligation of contracts ? 
 
 Mr. McKesson. That is what I had in mind. 
 
 Mr. Pickett. Have you any statute in Colorado giving the mu- 
 nicipalities the right to fix the prices of these public-service corpo- 
 rations ? 
 
 Mr. McKesson. No; we have no statutes on that subject. 
 
 Mr. Volstead. I presume that we coiild put into this grant a pro- 
 vision that it should be void provided it was subject to the provisions 
 of this franchise. 
 
 The Chairman. I think we can attach such condition to the grant 
 as we saw fit, and if they do not like it they need not take it. The 
 Empire Co. has spent a whole lot of money — more than their plant is 
 worth — and the city of Colorado Springs is willing to pay them all 
 that their plant is worth to-day, and what a board of arbitration will 
 set as their value this municipality will pay. The company is not 
 willing to do that, and they want to prevent the city from acquiring 
 rights to prevent their enjargement or development hereafter. 
 
 Mr. Volstead. Why can't the city condemn that plant? They 
 have the 
 
 The Chairman. There is a forest reservation there. 
 
 Mr. Volstead. I mean the company's plant, not the reservation. 
 
 Mr. McKesson. The city of Colorado Springs and the Empire 
 Co. began negotiations which terminated in what was termed an 
 arbitration agreement, which was satisfactory to the city of Colorado 
 Springs and to the local representatives of the Empire Co. and the 
 local representatives of the Colorado Springs Light, Heat & Power 
 Co. I have with me a copy of that arbitration agreement which was 
 thus formulated and which the city council of the city of Colorado 
 Springs authorized the mayor and clerk to sign on behalf of the city 
 of Colorado Spring. 
 
 Mr. Volstead. Does that contain the franchise that you speak of ? 
 
 Mr. McKesson. Just a moment, if you will permit. The parties 
 to this arbitration agreement were the city of Colorado Springs, the 
 Empire Water & Power Co., and the Colorado Springs Light, Heat & 
 
PROTECTION OF WATEE. SUPPLY. 19 
 
 Power Co., whicli is the present holder and owner of the Jackson 
 franchise. The city of Colorado Springs agreed to buy the holdings 
 of the Empire Co., both its lands and its water rights, at such price 
 as might be fixed by a board of arbitration appointed by the city of 
 Colorado Springs and by the Colorado Springs Heat, Light & Power 
 Co., and by the Empire Water & Power Co., on the award made by 
 such arbitration board provided for; and here is where the trouble 
 came. The fourth section of that agreement reads as follows : 
 
 In the event of the purchase by the city, whether under said agreement to purchase 
 or said option — 
 
 This agreement was conditioned upon the city of Colorado Springs 
 securing a grant of the lands asked for in this bill and that it would 
 buy the holdings of the Empire Co., but if this gi-ant was not made 
 the option to purchase should be binding on the city — 
 
 the light company shall, as an incident thereto and as a part thereof, and for the con- 
 sideration aforesaid — 
 
 Which was a nominal consideration of $1 — 
 
 moving to the company, forthwith effectually release and forever surrender and 
 abandon to the city all rights heretofore granted or which may be claimed to have 
 been granted by said Jackson franchise to said George W. Jackson, or his assigns, in 
 respect of all or any part of the water or watershed of the Fountain Creek above the 
 confluence therewith of Ruxton Creek, and to that end shall duly execute and deliver 
 such instrument of writing as in the opinion of counsel for the parties hereto shall be 
 effectual to that end, before any part of said consideration or purchase price shall be 
 paid or payable by the city to the company; Provided, always: (a) That such release, 
 surrender, and abandonment shall not abridge, curtail, or in any manner affect any 
 other right, privilege, or easement granted by said Jackson franchise; (b) that such 
 release, surrender, and abandonment shall not apply to water developed on the said 
 north slope by the city or by any person, firm, or corporation for it and made tributary 
 to the city's water system on the south slope at a point above the high-pressure line 
 as now installed, which terminates at or near the upper station of the Manitou Inclin < 
 Railway Co. on Mount Manitou; (c) that the city will not grant to any person, firm, 
 or corporation the right to utilize, during the life of said Jackson franchise, any water 
 developed from the watershed of Fountain Creek above the confluence therewith of 
 Ruxton Creek, not made tributary to the south slope system as provided in the fore- 
 going subdivision 6, for the generation of electric energy. 
 
 By the terms of that agreement the Jackson franchise would have 
 been removed from all these lands which we are asking for at the 
 present time. 
 
 The Chairman. Wouldn't that be affected under the present 
 system on the south slope ? 
 
 ilr. McKesson. It would not affect the Jackson franchise on the 
 south slope, but would prevent the Jackson franchise operating on the 
 developments made on the north slope. 
 
 Mr. Volstead. That is, as to the right to generate power ? 
 
 Mr. McKesson. Yes, sir. As 1 started to say, this draft of agree- 
 ment was made after much negotiation and the city authorized its 
 being signed. It was sent to New York for approval, and we were 
 informed that they would not approve the agreement, that the Empire 
 Co., was ready to sign the agreement, but that we must strike out of 
 this agreement all of that which related to the operation of the Jack- 
 son franchise. The light company absolutely refused to enter into 
 this agreement. 
 
 Mr. Raker. In other words, that agreement was never executed ? 
 
 Mr. McKesson. It was never executed. The Empire Co. then said 
 to us: "Can you buy these lands of ours and these water rights at the 
 
20 PROTECTION OF WATEE SUPPLY. 
 
 price that may be agreed upon by the board of arbitration," but we 
 said "No, for if we buy these lands and water rights of yours, the light 
 company can use them for nothing under this Jackson franchise, and 
 we tnink we ought not to buy from one company for the benefit of 
 another company, who have practical^ the same officers." 
 
 Mr. Kaker. Are the stockholders the same ? 
 
 Mr. McKesson. I understand the stockholders are not the same, 
 but the officers of the two companies are the same. Mr. Bullock is the 
 president of the Empire Co., and he owns all but four shares of the 
 Empire stock. 
 
 Mr. Pickett. Do I understand it that unless Congress or the Gov- 
 ernment grants some concession either to the Empire Co. or to the 
 ^ity, neither one of them can utilize this water ? Is that the idea ? 
 
 Mr. McKesson. No, sir; that is partially true, but not quite the 
 condition that exists there. The Empire Co. can not develop any of 
 its present holdings there unless it can get from the Government or 
 from the Forestry Department of the Government the right to lay 
 water mains on public lands. 
 
 The Chairman. The Government has not granted that right? 
 
 Mr. McKesson. No, sir. 
 
 The Chairman. And the Government does not propose to grant 
 those rights unless they propose to get a royalty on the system ? 
 
 Mr. McKesson. Yes, sir. I am speaking of the Empire Co., the 
 one that owns the rights. The light company is using the power now 
 developed upon the present water system of the city for the purpose 
 of lighting the town of Manitou, Colorado City, and Colorado Springs, 
 furmshing heat, light, and power for those three municipalities. 
 
 Mr. MoNDELL. Don't their business come under the act of 1905, 
 granting rights of way, water rights, for municipal purposes ? 
 
 Mr. McKesson. No, sir; it is not a municipal plant. 
 - Mr. Mondell. I know it is not a municipal plant, but do you hold 
 that that law only applies to applications by municipalities ? 
 
 Mr. McKesson. I do not know whether it does or not. Secretary 
 Wilson asked them whether they were able to get a permit to flood the 
 Government lands, and they said they were unable to get any permits. 
 
 Mr. Mondell. The act of 1905 very clearly grants rights of way for 
 municipal purposes. 
 
 Mr. McKesson. I suppose they claim that they want to develop 
 power on this north slope for municipal purposes, although it is not 
 being used for any such purposes at the present time. 
 
 Mr. Raker. If the company developed its system and took the 
 power to the city, wouldn't it be for municipal purposes ? 
 
 ilr. McKesson. Yes, sir. 
 
 Mr. Raker. And that would make it come directly under that act ? 
 
 Mr. McKesson. Except in so far as it applies to the reduction 
 mills and the power plants in the locahty, but it would be practically 
 all for municipal purposes. 
 
 Mr. Mondell. That act also authorizes the right of way for mining 
 purposes and the reduction of ore. 
 
 Tlie Chairman. The Empire Co. at the present time is at a 
 standstill. 
 
 Mr. McKesson. It has been at a standstill for some time, and it is 
 trying to unload this property on the city, for it feels that its hands 
 are so tied it can not do anything. They are unable to condemn 
 
PEOTEOTIOKT OF WATER SUPPLY. 21 
 
 our lands and we can condemn what land they have and take it for 
 municipal purposes; so they realize the fact that it is utterly impos- 
 sible for them to make any development on the north slope of the 
 peak, and it is a question with them now how they can get rid of 
 their holdings. 
 
 Mr. MoNDELL. Before you conclude I should like to have you give 
 the committee your views as to the probability of your being able to 
 protect your watershed if we had general legislation which would 
 authorize the Secretary of Agriculture to make leases for fixed periods, 
 of considerable length, to municpalities of lands upon the watersheds 
 of the city, which leases would give the city complete control and pre- 
 vent the location of mining and the establishment of other land claims 
 within the boundaries of such an area, such leases to be on a nominal 
 rental. 
 
 Mr. McKesson. I will be glacf to do that, but I desire to finish what 
 I have to say on the Empire situation. 
 
 Mr. Mondell. I simply make that suggestion at this time that 
 before you conclude you might give your views as to' whether that 
 sort of plan, or something of that kind, might not be an alternative if 
 Congress did not see its way clear to make grants to municipalities. 
 
 Ms. McKesson. I wdll be greatly pleased to do that. 
 
 In our conference with the Empire Co., day before yesterday, we 
 said to them frankly, ' ' We, representing the city of Colorado Springs, 
 can not and will not enter into an agreement to purchase the holdings 
 of the Empire Co., except in pursuance of the provisions of this con- 
 tract, that those lands and water rights, before being purchased by 
 us, shall be released from the Jackson franchise." The light com- 
 pany's representatives who were here refused to release any right of 
 the Jackson franchise. They then declared that they would oppose 
 this bill. We said to them, "Why do you want to oppose this bill? 
 If this grant of lands is made by Congress to Colorado Springs you 
 will be no worse ofT than you are at the present time. You are at 
 the present time unable to get any grant from Congress or from the 
 forestry department of the Government to flood the Government 
 lands or to lay your pipe lines. You absolutely can make no terms 
 at the present time for the purpose of utilizing any of the power or 
 any of the rights which you claim up there. You certainly would 
 not be in worse condition if this grant of lands was made to Colorado 
 Springs. Then, why do you wish to come in and defeat Colorado 
 Springs in securing that which you reahze, as citizens of that locahy, 
 it absolutely needs," and they said they would think the matter over, 
 and they have not yet been here before this conxmittee. Before, 
 they had appeared before the Secretary of the Interior and also 
 before the Secretary of Agriculture, and that was before the repre- 
 sentatives of the company had come over from the East. I do not 
 know whether they wfll appear before this committee or not. 
 
 Mr. Raker. Why do you say that they could not get the right from 
 the Government to build a reservoir and build ditches for the pur- 
 pose of establishing a plant for municipal purposes ? 
 
 Mr. McKesson. I say that for this reason : It must be apparent to 
 the forestry department of the Government and to anyone informed of 
 the conditions existing there that whatever water is developed on the 
 north slope of the peak must be used by the municipalities in the 
 valley for domestic purposes, and the power company must turn 
 
22 PEOTECTION OF WATER SUPPLY. 
 
 that water, after it has extracted the power from it, to the muni- 
 cipalities for their use, because the mumcipalities are so located that 
 they must liavo this water. Now, I believe that no one representing 
 the Government will grant to a power company the right to take the 
 water which is needed by municipalities and divert it for power pur- 
 poses; in other words, they will not permit them to use the Govern- 
 ment lands to divert water from the municipalities. 
 
 Mr. Eaker. You did not get the purport of my question. My 
 question went to this poiat : You stated that they could not get the 
 right from the Government to build reservoirs and ditches over the 
 Government land for the purpose of furnishing electric power to 
 municipalities, as well as f urnishiag the same water for use in generat- 
 ing the electric power to the municipality; in other words, the 
 .development of the reservoirs or thg building of ditches for both 
 purposes, namely, first, generating power for the municipalities, and 
 second, furnishing water for the municipality, if their application is 
 solely for that purpose. This is solely now for information. 
 
 Mr. McKesson. I know of no reason why they might not be able 
 to obtain such a grant. 
 
 Mr. Raker. Have they made any such application ? 
 
 Mr. McKesson. I do not know what they have done along that 
 line, except as stated by the attorney for the company to Secretary 
 Wilson, that it had been unable to get any permit to flood the Gov- 
 ernment lands. 
 
 Mr. Volstead. I beUeve they might be able to get a permit, such 
 as the one that they offered 
 
 Mr. Raker. I was asking for information to see what they were 
 doing. 
 
 Mr. McKesson. I do not know what they have done. 
 
 Mr. Raker. Have you a copy of this Jackson franchise ? 
 
 Mr. McKesson. I beUeve I have not with me, but I will be glad to 
 furnish it. 
 
 Mr. Raker. Will you present it to the stenographer so that it can 
 go into the record, and also this agreement that was made and 
 finally not executed ? 
 
 Mr. McKesson. Yes, sir. 
 
 M^r. Raker. Have you any other agreements entered into by the 
 city with either of these companies except these two — the franchise 
 wmch was consummated and this which was not consummated ? 
 
 Mr. McKesson. No, sir. 
 
 Mr. Raker. And no other agreements entered on the records of 
 the municipality or any written agreement by either of the com- 
 panies ? 
 
 Mr. McKesson. Let me state this fact: The Colorado Springs 
 Light, Heat & Power Co. has a franchise from the city of Colorado 
 Springs to use the streets and alleys for lighting purposes. 
 
 Mt. Raker. That is, in addition to the Jackson franchise ? 
 
 Mr. ]\IcKesson. Yes, sir. 
 
 Mr. Raker. Have you a cop}' of that ? 
 
 Mr. McKesson. No, sir. 
 
 ^h\ Raker. Can you furnish a copy so that it may go into the 
 record ? 
 
 Mr. McKesson. Yes, sir. 
 
PEOTECTION OF WATEE SUPPLY. 23 
 
 Jlr. MoNDELL. Would the use of this water })v tho powfir c()ni])any 
 for the generation of the electcic ener<2;y re(hieo its vohmu!, clum^.e its 
 character, or render it less available for use for municipal purposes'^ 
 
 Mr. McKesson. That would (h'[)end upon where they turned tlie 
 water after tliey liad taken the power out of it. If th<' water was 
 carried into the present city system on tlie top of ^Mount Manitou tlie 
 water can be used by the power company and the powcj' extracted 
 and the water turned into the city's present system without any loss 
 whatevei' to the city. 
 
 Mr. Fergiisson. j^s I understand it, th(^ Goyenunent author ties 
 have not yet sanctioned this bill before the committee ? 
 
 j\[r. McKesson. No, sir. 
 
 Mr. Fergusson. I would like to ask you this: As T understand it, 
 you want this water to increase the supply for municipal jjurposes 
 and to keep it pure for municipal purposes only '. 
 
 Mr. McKesson. Yes, sir. 
 
 Mr. Fergusson. Wouldn't it serye your purpose, therefore, to give 
 you some grant showing an absolute fee-simple title to the lands you 
 ask for in this bill ? 
 
 Mr. McKesson. In. reply, I would say that any reservation in the 
 lands made to the city that would leave tliis land open to miiieral or 
 other entry would be prejudicial to the pus'ity of our water system. 
 
 Mr. Fergusson. Would it not be in the power of the Government 
 authorities to regulate that by law, or otherwise, to protect the land 
 that you ask for and the purity of the water, consistently with reserv- 
 ing to the Government any mining rights that might hereafter be 
 developed on this land ? 
 
 Mr. McKesson. I think not. 
 
 Mr. Fergusson. Why not? 
 
 Mr. McKesson. For this reason: If these lands are granted to the 
 city they must be permanently controlled by the city. Now, if the 
 lands are open to entry, any one who desires to go upon them for 
 that purpose may do it. They can establish on those lands such 
 buildings and equipments as they feel necessary for the develop- 
 ment of their properties. 
 
 The Chairman. Their going in on those lands prospecting would 
 interfere with the purity of the water of the system, would it not ? 
 
 Mr. McKesson. Yes, sir; that is the proposition exactly. They 
 can not prevent persons from going on there for prospecting. 
 
 Mr. Fergusson. You ask in this bill for a pure fee-simple title to 
 this property? 
 
 Mr. McKesson. Subject only to reversion to the Government in 
 case the development mentioned is not carried out. 
 
 Mr. Raker. How about the prospecting on this land ? 
 
 Mr. McKesson. Let me call your attention to this: There will be 
 no prospecting on this land, as these lands which we are asking for 
 have been thoroughly prospected. 
 
 Mr. Fergusson. That does not count with me, because the Cripple 
 Creek country has been prospected for manj^ years and thrown aside 
 as worthless ? 
 
 Mr. McKesson. Cripple Creek lays way over to the western 
 
 ilr. Fergusson. I understand that, but it is the question of the 
 advisability of giving to the municipality such mining rights, if it 
 
24 PEOTEGTIOX OF WATER SUPPLY. 
 
 shall be possible to properly protect those cities by giving an ample 
 and pure supply of water, but I am not yet satisfied in my mind that 
 it will not be possible by regulation to preserve any possible right and 
 still preserve the rights and interests of those cities. 
 
 Mr. MoNDELL. Tlie law allows now the location of mining claims 
 and also homestead claims, authorizing the Secretary of Agriculture — 
 in fact, makes it his duty — to designate lands for homestead use. 
 Therefore, unless there was some act or law to the contrary, the Sec- 
 retary of Agriculture would have no authority under any agreement 
 that he might make to in any way lessen or reduce or affect the right 
 of individuals to enter upon these lands for the purpose of mining or 
 prospecting or selection of agricultural lands. 
 
 Mr. Fergusson. I admit that, but might not additional power given 
 by Congress 
 
 Mr. MoNDELL. As I said a moment ago, that might be an alterna- 
 tive, providing Congress did not see its way clear to make a grant. 
 
 Mr. McKesson. Just one statement further in regard to the utility 
 companies about which we have been speaking. There is one pro- 
 vision in the Jackson franchise which the city is seeking to take 
 advantage of that looks favorable to the city of Colorado Springs, 
 and that is a provision that the holders of the Jackson franchise will 
 furnish the city power at the price paid by its most-favored con- 
 sumer. Its franchise was first operated by the Hydro-Electric Co. 
 The name is familiar to some of you gentlemen. Wliile that company 
 owned the franchise it made a contract with the light company of 
 Colorado Springs to furnish them power at a half a cent per kilo- 
 watt per hour. The city immediately came in and demanded power 
 for a municipal plant at the price at which this power was being 
 furnished to the light plant. The Hydro Co. refused to sell power 
 to the city at this price and a suit was entered which was tried in our 
 district court and there decided in favor of the Hydro Co. 
 
 Mr. Volstead. On what grounds ? 
 
 Mr. McKesson. The Jackson franchise had a provision in it which - 
 read something like this : 
 
 That the said George W. Jackson and his assigns shall, after 90 days' notice, furnish 
 the city such power as it may require for municipal purposes at the price paid by its 
 most-favored consumer. 
 
 The court held that the words "municipal purposes" were re- 
 stricted to such power as the city might require for its elevators, of 
 which it had none, for its telephone and telegraph lines, of which it 
 had none; and other similar purposes. 
 
 Mr. Raker. Has that case been taken to the Supreme Court ? 
 
 Mr. McKesson. Yes, sir; but it has not been decided yet. I have 
 gone into the matter thoroughly, and it seems to me we must get a 
 decision favorable to the city of Colorado Springs in that case. If 
 that case is decided favorably to us, we have a chance to build a 
 municipal plant. Now, in regard to these power companies. If they 
 come before you and make representations which seem to indicate 
 that we are not trying to do the fair thing with them, ask them 
 simply this question, whether the mayor and the other representa- 
 tives of the city did not say to them: We do not desire to take from 
 you one single legal right that you have or a single foot of property 
 that you have. If there is anything in this bill which will do that. 
 
PROTECTION OP WATER SUPPLY. 25 
 
 we want it stricken'out, for we want to pay for everything that we 
 get from you, but we do not intend to have you hold us up." 
 
 Mr. Raker. Who is present in Washington representing these com- 
 panies ? Give their names, so that they may go into the record. 
 
 Mr. McKesson. Mr. E. L. Holland. He is stopping at the Willard 
 Hotel. He is attorney for the light company and also for the power 
 company; a director in one company and secretary and treasurer in 
 the other company. Mr. J. S. Dill, of New York, vice president of 
 the light company, was here yesterday. He left yesterday evening. 
 Mr. George Tripp. 
 
 Mr. Avery. There was Mr. R. L. Holland, attorney at law, Colo- 
 rado Springs, Colo., stopping at the New Willard Hotel; he is attor- 
 ney for the Colorado Springs Light, Heat & Power Co. and director, 
 and is also attorney and secretary and treasurer of the Empire Water 
 & Power Co. Mr. J. S. Dill, who is vice president of the Colorado 
 Springs Light, Heat & Power Co. and vice president of the Empire 
 Co. He lives at 40 Wall Street, New York. Mr. George B. Tripp, 
 of Harrisburg, Pa., the local manager of the Harrisburg Electric Co. 
 He has been the manager for 10 years for the electric company in 
 Colorado Springs on the 1st day of October, 1911. He has our light 
 contract. 
 
 Mr. Raker. These men were in the city yesterday ? 
 
 Mr. Avert. Yes, sir. 
 
 Mr. Raker. And you gentlemen conversed with them ? 
 
 Mr. Avery. Yes, sir. 
 
 Mr. Raker. I want to know whether or not this committee has 
 power to issue a subpoena for ■witnesses upon a matter before it. 
 
 The Chairman. I do not know that we have. Mr. Mondell, is it 
 your understanding that the committee has power to subpoena wit- 
 nesses on a matter that is pending ? I in\dtea Mr. Holland myself. 
 
 Mr. Mondell. It would be a good thing to invite liim by letter. 
 
 Mr. Raker. And have it delivered personally by a messenger. 
 
 Mr. Mondell. The messenger of the committee can deliver it 
 to him. 
 
 The Chairman. When will the committee say that we will invite 
 him to come; when shall we have another meeting? 
 
 Mr. Mondell. Whenever you fix it. 
 
 The Chairman. I want to say to the committee generally, there 
 is no other conceivable source from which a supply of pure water can 
 be had for the city of Colorado Springs and the city or town of Mani- 
 tou; the city of Colorado City, which is a city of 6,000 people, gets 
 its water supply from Colorado Springs and can not get any pure 
 water from any other source; they have simply got to get it right 
 there. The population in those places will increase to more than a 
 hundred thousand people in a few years, and they can by no possi- 
 bility get water from any other source. 
 
 Mr. Volstead. Has there ever been any examination of any other 
 sources of supply ? 
 
 Mr. McKesson. Yes, sir; and there is no other way to get it. You 
 can not have wells in that country. 
 
 Mr. Mondell. I would suggest to the chairman to fix a date and 
 advise these people that the committee has this matter under con- 
 sideration and would be glad to hear them in regard to the matter 
 
26 PEOTECTION OF WATEB SUPPLY. 
 
 at a given date or any other date wliich they might fix within a week 
 or 10 days. 
 
 The Chairman. These people who have been objectiag to this bill 
 are here in the city and in this building now, or some of them were 
 here, and the committee is ready to hear them, and the Colorado 
 Springs people should not be compelled to stay here indefinitely to 
 wait the convenience of the Empire people. 
 
 Mr. McKesson. I spoke to Mr. Holland yesterday, and I asked 
 him to come up, but he is not here to-day, I see. 
 
 Mr. Eaker. Have these men or any one of them been up to the 
 committee room in regard to the matter ? 
 
 The Chairman. Oh, yes; they have talked to the clerk of this 
 committee and they know all about it. 
 
 Mr. Raker. I want to know if they have been before the com- 
 mittee and made any request or suggestion that they have a hearing 
 upon this matter themselves ? 
 
 The Chairman. I think you had better ask the clerk. 
 
 Mr. Williams. Mr. Holland, and some other gentleman was with 
 with him; I suppose it was Mr. Dill, He said he would like to have 
 a hearing on the matter. I told him it was the policy of the com- 
 mittee to let any person be heard; that I would confer with the 
 acting chairman, Mr. Graham, and he said he would not only give 
 them an opportunity to be heard, but that they must be heard. 
 
 Mr. Raker. Did they say when they wanted to be heard ? 
 
 Mr. Williams. They said they did not want to be heard until next 
 week. 
 
 Mr. Raker. Did they give any reason why they were not here ? 
 
 Mr. Williams. They said they did not know that this hearing was 
 coming off until next week. I told him that we had regular meetings 
 on Wednesdays. 
 
 Mr. Raker. Did they say anything about these other people being 
 here and they would have to go home shortly ? 
 
 Mr. Williams. No, sir; they did not. 
 
 The Chairman. Mr. Pickett spoke to me about this matter about 
 10 days ago and said that Mr. Holland wanted to be heard before the 
 committee. I said he could have a full hearing and we would get the 
 two parties before the committee at the same time. Mr. Pickett 
 telegraphed him to come and he came here for that purpose. I saw 
 him in my office and asked him to come up here. 
 
 Mr. Raker. You mean Mr. Holland ? 
 
 The Chairman. Yes, sir. 
 
 Mr. Raker. As far as I am concerned, we will have a hearing for all 
 of them. 
 
 Mr. Avery. They filed a 35-page brief here, and I want to say that 
 the statements in that brief are not true. I want them to come 
 right up in here on this carpet and tell the truth. We would not want 
 to hang around and not come and face you. 
 
 The Chairman. They filed this 35-page brief against this bill after 
 those gentlemen had been here and gone home. The city has got to 
 have these lands. The city can not advantageously issue its water 
 bonds without them; they know what their water and legal rights are. 
 But they do not feel justified in going ahead and making an enormous 
 expenditure without having additional rights over the sources of their 
 water supply and authoritj'- to prevent their reservoirs from pollution. 
 
PEOTBCTION OP WATER SUPPLY. 27 
 
 Mr. Avery. I want to talk on the operation of the system. I want 
 to tell you why we have got to have more reservoirs, as to what we 
 consume, and what we have on hand. I will talk to you about the 
 operation of the system and what they have got to do. 
 
 Mr. McKesson. In the matter of the representatives of the Em- 
 pire Co. I want to say that Mr. Holland was here on Monday and went 
 with us to a hearing which was had before the Interior Department. 
 He was with us on Tuesday and we had a hearing before Secretary 
 Wilson of the Agricultural Department. They have been informed 
 of this hearing and we invited him to be here. That was this week. 
 He made some adverse statements both to Secretary Wilson and to 
 Mr. Adams at those hearings. At that time Mr. Dill and Mr. Tripp 
 had not come to the city. After his conference with them he has not 
 appeared here. Now, what it means, I do not know. 
 
 Mr. Rakeb. What was the nature of the conference before Secre- 
 tary Wilson — the purpose of it ? 
 
 Mr. McKesson. The purpose of it was to secure a recommendation 
 favorable-to this bill. 
 
 Mr. Raker. It was the same purpose in appearing before the 
 Secretary of the Interior? 
 
 Mr. McKesson. Yes, sir. 
 
 The Chairman. Neither one of those departments have reported 
 on it, yet, Mr. Raker. 
 
 Mr. McKesson. I would like to state the things which must be in 
 general land bill if one is granted, which would grant relief to munici- 
 palities situated such as ours is: First, the lands in the watersheds 
 must be fenced; second, they must be policed from the inside; 
 third, the municipalities should have such jurisdiction over the lands 
 in their watersheds as will enable them to arrest trespassers found 
 therein when necessary; fourth, municipalities should have a stable, 
 continuous control over the lands embraced within their watersheds; 
 fifth, they should have a perpetual right to build in these watersheds 
 such reservoirs, pipe lines, and other means for conducting water as 
 they shall find necessary; sixth, the lands in these watersheds should 
 be withdrawn from entry, either mineral or otherwise; seventh, 
 adequate provision should be made for the protection of the timber 
 within these watersheds, so that the existing timber may be pro- 
 tected, and the districts may, when necessary, be reforested. Now, 
 if a general land bill can be passed which wUl enable cities to secure 
 these seven propositions, we would have much better protection 
 with that general land bill than we would have by a special grant of 
 these lands to us. At the present time there is no way whatever of 
 doing the things which would be required to be done without having 
 a grant of the lands to us, giving us absolute control over them. 
 
 Mr. Volstead. Wouldn't it be possible to make that grant on the 
 part of the Government with a reservation or limitation that all the 
 power developed upon the land or in connection with it should be used 
 in these three places, three towns, and that the price charged for their 
 use should be regulated or determined either by the city council or the 
 Secretary of Agriculture, or both jointly, or some other body, to be 
 fixed upon in the bill? Now, I must confess that I am not very 
 enthusiastic over the proposition of deeding to the city, property, 
 when in connection witn that we practically give to these power com- 
 panies free use of these lands for power purposes and then on top of 
 
28 PROTECTION OF WATER SUPPLY. 
 
 that have the city go to work and put in the dams to get them. That 
 is, I anticipate, what is contemplated, because when you build large 
 reservoirs those reservoirs are used for dams. 
 
 The Chairman. In other words, you want to be sure that the city 
 will get the benefit of the grant instead of the private corporation ? 
 
 Mr. Volstead. Yes, sir. The old water power that is held under 
 the Jackson franchise would not be interfered with, but we are creat- 
 ing a new power, or authorizing, rather, the building of a new power, 
 and we have got to convey, or at least give the right to use Government 
 property. Now, I do not feel very enthusiastic toward the proposi- 
 tion to give that for the benefit of these corporations, because I do not 
 see what they have done to entitle them to this, and if we grant it we 
 ought to grant it so as to give a substantial advantage to those cities. 
 
 Mr. McKesson. Your purpose in that matter is certainly laudable 
 and one which the citizens of Colorado Springs will greatly appreciate. 
 But the situation is this: The Jackson franchise expires in 1923, with 
 a clause, as I stated, which means a lawsuit, which says the city will 
 extend. We have the initiative, referendum, and recall. .No fran- 
 chise can be granted without the vote of the people. No franchise 
 can be granted unless it is favorable to the citizens of Colorado 
 Springs. 
 
 Mr. Volstead. In case you refused to grant them terms and condi- 
 tions that were reasonable, and they were able to maintain that they 
 had a right, that you had violated your contract, the courts woulcl 
 most naturally hold in a condition of that kind, if it is valid at all, 
 that they are entitled to a reasonable franchise, even though, as they 
 might contend, that they had a right to maintain that franchise for 
 all time upon conditions that are reasonable. 
 
 Mr. McKesson. That contract provides that it may be granted for 
 such time and upon such conditions as the then city council may 
 determine, so that the time limit has been absolutely mentioned in 
 that franchise. 
 
 Mr. Volstead. I must confess that I am a little afraid of it. The 
 Supreme Court of Wisconsin has held that a provision for repealing a 
 franchise to build a dam across a river can not be repealed. They 
 undertook to cancel a very large number of franchises of that class 
 granted to various parties and corporations in that State, with a view 
 to imposing different terms upon them for the future, and the supreme 
 court held that they had a property right there and they could not 
 take it away. Unless I were satisfied that when we grant this thing 
 we are not granting it for the benefit of these electric light and power 
 companies, I would be very much opposed to any grant at all. 
 
 Mr. McKesson. I will grant that these lands will not affect the 
 right of the power company in any particular, either favorable or 
 otherwise. So far as the light company is concerned, that holds the 
 franchise. If their franchise can be extended, it can be extended 
 whether you grant it this land or not. Here is the proposition : We 
 must have this water; we must have it whether it comes under the 
 Jackson franchise or not; but we must have it. We are asking for a 
 grant of this land in order tp keep the city water pure. We are ask- 
 ing for the land to fence it, and control it, and keep the water pure. 
 We are buying it for that purpose. 
 
 Mr. Volstead. As long as the National Government owns this 
 land the power company will probably have considerable difficulty 
 
PROTECTION OF WATER SUPPLY. 29 
 
 in getting any kind of a right to cross it, or to use it, unless they meet 
 the conditions I am suggesting. If we make this grant in the form 
 that you have got it, we take this land out of the ordinary rules, or 
 the rules of the department, which impose these restrictions upon the 
 power company, and grant it to the city; and the city having con- 
 tracted away those rights, we practically give it to the power com- 
 Sanies. While we would put this provision in, that the Agricultural 
 •epartment now insists upon, with reference to all its lands inside 
 the reservation, for the purpose of protecting the public against exor- 
 bitant charges, we will, I think, in a measure relieve the city from its 
 responsibility under the Jackson franchise and secure to the citizens 
 cheaper water at the same time that we grant this land, so that you 
 can protect your water supply. 
 
 Mr. McKesson. If anything can be done along that line, we will 
 welcome it most heartily; but I am unable to see at present how we 
 can reach that end. All we want is the grant of the lands in such 
 form that we can protect the water system as it is now and must be 
 developed to give us an adequate supply of water. 
 
 Mr. VOLSTEAD. I think we can do it under our absolute right to 
 control our own property to suit ourselves, though it may be that the 
 condition we put in is in the nature of a police regulation to protect 
 your citizens. Still the courts have held that you might practically 
 add as a condition to a title a condition that is practically a poHce 
 requirement. They hold, for instance, this : That you can sell a piece 
 of property, an individual can, and provide that a man can not put a 
 saloon upon that property. They hold that that is a valid proposi- 
 tion. While I have not got very much sympathy with the idea that 
 we must undertake to protect citizens in a State in the sale of our Gov- 
 ernment lands, because, it seems to me, that is a matter that ought to 
 be taken care of by the States under their police powers, still here is a 
 situation where apparently a municipality has bartered away its police 
 powers. Now, we propose to sell this land, or donate it, to the city, 
 and I am very much impressed with the idea that we ought to try to 
 help that community. As to this new investment, they ought to get 
 the full benefit of this water power, which they have got to develop in 
 securing their water supply, and if we can use our proprietary rights 
 as owners of that land for the purpose of giving them this cheaper 
 water I think we ought to do this. 
 
 Mr. McKesson. That meets with hearty approval from us. 
 
 The Chairman. Mr. Volstead does not feel like giving that private 
 company a cinch upon the city in regard to these additional rights. 
 
 Mr. Avery. Our municipalities have certain police powers, and if 
 anything goes wrong the board of health or the city physician has the 
 power to correct it. The power given the city under the health law is 
 almost unlimited. 
 
 Mr. Volstead. This is purely for the purpose of protecting your 
 health. 
 
 Mr. Avery. It is also for the purpose of securing our health at a 
 reasonable rate. 
 
 The committee thereupon adjourned to Monday, March 18, 1912, at 
 10.30 a. m. 
 
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 Hearings before the ^°'"7i||[|fM|M||f|»|'«|?||r^ 
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