specially concurring;
I agree with the majority’s determination that Doris Gibbs was properly granted a conditional water right in a well located on property owned by Wolf Land Company. I write separately, however, in order to expand on the analysis by which the majority achieves its result.
The majority concludes “that the water court did not err in determining that Gibbs possesses both the ability and intent to use the conditionally decreed amounts of water for a residential community on property that Gibbs is the authorized agent to develop.” Maj. op. at 799. In other words, Gibbs was able to meet the “can and will” requirement of section 37-92-305(9)(b), 15 C.R.S. (1990), which is necessary for the granting of a conditional water right. This section provides as follows:
No claim for a conditional water right may be recognized or a decree therefor granted except to the extent that it is established that the waters can be and will be diverted, stored, or otherwise captured, possessed, and controlled and will be beneficially used and that the project *804can and will be completed with diligence and within a reasonable time.
This court has previously found that the “can and will” requirement must be proven by a preponderance of the evidence that the appropriation will be completed with diligence. FWS Land & Cattle Co. v. State Div. of Wildlife, 795 P.2d 837, 840 (Colo.1990).
Wolf argues that FWS is controlling on the question of whether an applicant must prove a right of access to the subject land before a conditional water right may be granted. In FWS, the FWS Land and Cattle Company (FWS) sought a conditional storage right in two lakes. FWS owned 10 percent of the underlying land, and the State Division of Wildlife (DOW) owned the remaining 90 percent. FWS wanted to increase its existing storage capabilities in the two lakes, and the resulting higher water level would have been to the complete detriment of DOW’s use of the lakes. The water court dismissed FWS’ application without prejudice on the grounds that FWS could not meet the requirements for a conditional water right at that time, and it would have to bring an action in district court to establish its right to use state lands. This court affirmed the dismissal by the water court, stating that the applicant “must be able to establish” the “can and will” requirement through proof of ownership or proof of right of access. Id.
Wolf contends that Gibbs cannot rely on the prospective right of private condemnation as proof of access and that, under FWS, Gibbs has no proof of access. The majority first states that this argument is not at issue since Gibbs is claiming access to the well through a recorded easement. Maj. op. at 802 n. 11. The majority then goes on to distinguish FWS, presumably with regard to Gibbs’ recorded easement as proof of access, even though Wolf chose to rely solely on the grounds of private condemnation. It is necessary to note that in the present case, the right to the well itself and the right to cross Wolf’s land to access the well are separate rights, while in FWS the two were the same — the right of FWS to increase its water storage necessarily involved the right-of-way over the underlying land.
The majority characterizes FWS as being “premised on the fact that under no circumstances, absent the consent of DOW, could the applicant have obtained access to DOW lands for the purposes of increasing the storage capacity of the lakes.” Maj. op. at 802. The majority also states that “FWS could not have obtained possession of the necessary lands by condemnation or eminent domain.” Maj. op. at 803 n. 13 (emphasis in original). The opinion in FWS itself does not expressly support these contentions and a comparison of the majority opinion in this case with FWS may leave the distinction between the two cases unclear or unpersuasive. However, an examination of the constitutional provisions applicable to the situation therein reveals that the majority’s statements about FWS are accurate.
Article XVI, section 7 of the Colorado Constitution states that:
All persons and corporations shall have the right-of-way across public, private and corporate lands for the construction of ditches, canals and flumes for the purpose of conveying water for domestic purposes, for the irrigation of agricultural lands, and for mining and manufacturing purposes, and for drainage, upon payment of just compensation.
This section clearly does not apply to storage situations. Such an application cannot be implied either, because the right to condemn must be specifically granted. As we stated in Potashnik v. Public Serv. Co., 126 Colo. 98, 101, 247 P.2d 137, 138-39 (1952):
The power [of condemnation] lies dormant in the state until the legislature speaks_ Statutes granting ... the powers of eminent domain ... grant no power in addition to that accorded by the specific provisions of the general law covering the subject....
Since FWS was attempting to secure the water rights for storage purposes, article XVI, section 7 did not apply to its situation. Thus, FWS was subject to article II, section 7 of the Colorado Constitution with regard to condemning land for use as a reservoir *805to store water. This section restricts any taking to private property only — and FWS was seeking to condemn public property. It is therefore clear that FWS could not have succeeded in bringing any sort of eminent domain or private condemnation claim, and it had no facially valid water right based on these theories.
Furthermore, it must be noted that FWS’ easement arguments were likewise invalid and are not comparable to Gibbs’ easement. These easements — by necessity and by prescription — must be adjudicated before they are enforceable by the one asserting the easement. Since they had not been adjudicated in that case, FWS had no facial right to water storage.
Essentially, then, the distinction between the situation in FWS and this situation is that Gibbs has a facially valid right to the water based on a recorded easement. In contrast, FWS had no such facially valid right. FWS did not have the ability to condemn the land, nor did it have a valid easement at the time of its application for a conditional water right. For that reason, FWS cannot be regarded as controlling. Thus, a facially valid easement, although it may be later contested and overturned, constitutes sufficient proof of access to grant a conditional water right.
For these reasons, I concur in the majority’s opinion.