| OCR Text |
Show INCHOATE APPROPRIATE RIGHT 589 In a 1939 decision, the Colorado Supreme Court reiterated the fundamental proposition that application of water to a beneficial use is essential to a completed appropriation, and that all acts preceding this-even diversion from the natural stream-constitute but an inchoate right or interest which terminates if beneficial use does not follow. In such event, the water goes to junior claimants who have complied with all requirements of the law. And to obtain a priority dating from the commencement of work, beneficial use must take place within a reasonable time, which depends upon the facts and circumstances of each particular case.739 As noted above, the 1969 legislation provides that in every second calendar year following the year in which a conditional right has been determined, the owner or user of the right must obtain a finding from the referee of reasonable diligence in the development of the appropriative right; failure to do so shall constitute an abandonment of the right.7*0 Abandonment of a conditional water right is defined as the "termination of a conditional water right as a result of the failure to develop with reasonable diligence the proposed appropriation upon which such water right is to be based."741 This definition differs from the act's definition of the "abandonment of a water right," apparently meaning a completed appropriation, as "the termination of a water right in whole or in part as a result of the intent of the owner thereof to discontinue permanently the use of all or part of the water available thereunder."742 739Denver v. Sheriff, 105 Colo. 193,199, 96 Pac. (2d) 836 (1939). Other cases dealing with conditional decrees regarding water appropriations include Four Counties Water Users Ass'n v. Colorado River Water Conservation Dist, 159 Colo.499,414 Pac. (2d) 469 (1966) ;/d., 161 Colo. 416, 425 Pac. (2d) 259 (1967);/d., 161 Colo. 424, 425 Pac. (2d) 266 (1967); Four Counties Water Users Ass'n v.1 Middle Park Water Conservation Dist., 161 Colo. 429,425 Pac. (2d) 262 (1967). 740Colo. Rev. Stat. Ann. § 148-21-17(4) (Supp. 1969). 14lId. § 148-21-3(14). 742/tf. § 148-21-3(13). |
