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Show 164 COLORADO has never been a requirement of making an application to an ad- ministrator for a permit to appropriate water, although permits are required to drill wells91 and no priority will be awarded in court for a well unless either a well permit or evidence either of denial thereof by the State engineer or of his failure to act on an application therefor within 6 months of filing is presented to the water judge.92 a. Acts of Appropriation The first essential of an appropriation is the actual diversion of water with intent to apply it to beneficial use.93 What constitutes an actual diversion may depend on the facts of the case, but ordinarily a physical diversion by a structure is implied.94 Uses recognized as "beneficial" are domestic,95 agricultural,98 industrial,97 municipal,98 and recreational.99 b. Obtaining Priority The priority of a water right is determined in an adjudication proceeding before the water judge. An application for a determina- tion is made, as explained above, to the diversion water clerk and may be referred to a referee or decided by the water judge. At a minimum, applications must set forth a legal description of the diver- sion, a description of the source of the water, the date of initiation of the appropriation, the amount of water claimed, and the use of the water.100 (The steps in the proceeding are outlined in section 2.2, supra.) A priority date based on the date of initiation of appropria- tion is determined, but the legal priority of the right-that is, the seniority by date as of which the right is entitled to divert-must be determined in relation to all other rights deriving water from a common source101 subject to the rule that no award of priority made in any calendar year can be senior to any award made for rights for which applications were filed in a previous calendar year.102 Priorities may be obtained for conditional water rights in the same manner though, owing to a necessary lengthy period of develop- ment, no water under an application can be expected to be applied to beneficial use, even for many years, until after the initial applica- tion.103 In such cases, subject to the rule requiring due diligence in prosecuting a project to completion, the appropriation date is said to relate back from the date of completion to the earliest date on which a substantial act providing an open, physical demonstra- 81 Colo. Rev. Stat. Ann., see. 148-18-36 (1963 and supp. 1965). The State engineer must issue the permit if he finds that there is unappropriated water available for with- drawal by the proposed well and that the vested water rights of others will not be materially injured. ""Colo. Rev. Stat. Ann., sec. 148-21-18(2) (supp. 1971). ^Safranek v. Limon, 123 Colo. 330, 228 P. 2d 975 (1951). MLamont v. Riverside Irr. Dist., 498 P. 2d 1150 (Colo. 1972) ; see Thomas v. Guiraud, 6 Colo. 530 (1883) ; Town of Genoa v. Westfall, 141 Colo. 533, 349 P. 2d 370 (1960). 86 Colo. Const., art. XVI, sec. 6. "Id. os Denver v. Sheriff, 105 Colo. 193, 96 P. 2d 836 (1939). 88 Colo. Rev. Stat. Ann., sec. 148-21-3(7) (supp. 1969). 100 Colo. Rev. Stat. Ann., sec. 148-21-18(2) (supp. 1971). 101 Colo. Rev. Stat. Ann., sec. 148-21-3(10) (supp. 1969). i°2 Colo. Rev. Stat. Ann., sec. 148-21-22 (supp. 1971). "»Colo. Rev. Stat. Ann., sec. 148-21-18(1) (supp. 1971). |
