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Show 588 THE APPROPRIATIVE RIGHT Some supreme court decisions refer to decrees of adjudication entered in 1888 and 1889, both of which had both absolute and interlocutory or conditional features. The practical reasons for including conditional decrees in the 1888 general adjudication were stated.734 Inclusion of both absolute and interlocutory features in the decree of 1889 were thus explained:735 At the time of the entry of the decree, the court established in each ditch an absolute right to the full amount of water per second of time that had been applied to a beneficial use, and gave such appropriation a number, and, to that extent, it was absolute. It tentatively recognized an inchoate right to additional water, which inchoate right, if of any validity, might become an absolute right, under the doctrine of relation, if the water was applied to a beneficial use with due diligence.* * * The question of abandonment of an inchoate or conditional appropriation was the subject of some debate. In the two decisions just noted, the Colorado Supreme Court held that the principles of abandonment are not to be applied to these contingent interests, inasmuch as in the absence of diligence no appropriation would exist and so the inchoate interest, tentatively recognized, would terminate.736 Kinney criticized this, stating that the better rule is to treat such an inchoate right as abandoned where there has been an unreasonable time in the final consummation of the right, after the rights of others have intervened, unless there should be a failure to comply with some specific statute in which case the right should be treated as forfeited.737 This statement by Kinney is inconsistent with a statement several sections later in which he points out correctly the decided distinction in legal significance between "abandonment" and "forfeiture" which "should be observed," abandonment being the "relinquishment of the right by the owner with the intention to forsake and desert it." Several years later, the supreme court referred to the decisions and to Kinney's criticism of them, but did not find it necessary to decide the question in this case. The court said: "However that may be, the party may not, in the same defense, plead that his ad- versary never had any rights, and that such rights, as once existed, had been abandoned.* * * "738 1MConley v.Dyer, 43 Colo. 22, 23-25, 95 Pac. 304 (1908). ™ Crawford Clipper Ditch Co. v. Needle Rock Ditch Co., 50 Colo. 176, 181, 114 Pac. 655 (1911). 736 Conley v. Dyer, 43 Colo. 22, 28-29, 95 Pac. 304 (1908); Crawford Clipper Ditch Co. v. Needle Rock Ditch Co., 50 Colo. 176, 182, 114 Pac. 655 (1911). 737 Kinney, C. S., "A Treatise on the Law of Irrigation and Water Rights," 2d ed., vol. 2, §§ 1102 and 1118(1912). V'Bieser v. Stoddard, 73 Colo. 554, 560, 216 Pac. 707 (1923). The court apparently believed that abandonment of a conditionally decreed right could be shown, but de- cided that it had not been established herein. |
