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Show 344 APPROPRIATION OF WATER beneficial use. This has always been the first essential step.581 The appropria- tion was completed by applying the water to the intended use.582 This is still the method of acquiring a right to the use of such unappropriated water. However, until 1969, there was a statutory requirement for filing which had value but which the claimant need not have complied with to insure the soundness of his appropriation. The statute provided that within 60 days after commencement of work, everyone who constructed or enlarged any works for the diversion or storage of water of a natural stream for any beneficial use had to file a sworn statement of his claim, with maps, in the office of the State Engineer. If the facts were adequately presented, the State Engineer accepted the claim for filing in his office. Reproductions were made and filed in the appropriate county records. A certified copy of such a filing was prima facie evidence, in any court having jurisdiction, of the claimant's intent to complete the construction and to utilize the rights described therein.583 The Colorado Supreme Court so construed the statutory requirements for filing maps and statements as to restrict their purpose and effect to matters of evidence. It cautioned that the purpose and effect of filing "must not be extended beyond the statute."584 Further, said the court, compliance with the statutory requirements is not strictly part of the act of appropriation, which is completed when the works are constructed and the water diverted and put to a beneficial use. "The filing of maps and statements under our irrigation statutes is a means of fixing and holding the rights which a party already has acquired by appropriation and are only prima facie evidence of the appropriation."585 In 1969, the Colorado Legislature repealed this filing requirement586 and enacted legislation providing that any appropriator who desires a determination of his water right and the amount and priority thereof, shall file an application for such determination with the water clerk.587 Jurisdiction to hear and 581 The rule is elementary that the first essential of an appropriation is the actual diversion of the water with intent to apply to a beneficial use: Denver v. Northern Colorado Water Conservancy Dist., 130 Colo. 375, 386, 276 Pac. (2d) 992 (1954). 582 Application of water to a beneficial use is essential to a completed appropriation: Denver v. Sheriff, 105 Colo. 193, 199, 96 Pac. (2d) 836 (1939); Sterling v. Pawnee Ditch Extension Co., 42 Colo. 421, 428, 94 Pac. 339 (1908). 583Colo.Rev. Stat. Ann. § § 148-4-1 to 1484-7 (1963),repealed,Laws 1969,ch. 373, § 20. 584De Hass v. Benesch, 116 Colo. 344, 351-352, 181 Pac. (2d) 453 (1947). The lack of filing maps or statements does not invalidate the appropriation: Black v. Taylor, 128 Colo. 449, 457458, 264 Pac. (2d) 502 (1953). S8SArchuleta v. Boulder & Weld County Ditch Co., 118 Colo. 43, 53, 192 Pac. (2d) 891 (1948). 586Colo. Laws 1969, ch 373, § 20. S87Colo. Rev. Stat. Ann. § 148-21-18(1) (Supp. 1969). Regarding "Conditional Decrees in Colorado," see in chapter 8, "Inchoate Appropriative Right." |
