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Show ELEMENTS OF THE APPROPRIATIVE RIGHT 5 61 held that the reasonable value of the water right was a part of the total value on which the company was entitled to a fair return.601 (2) Ownership of water right by consumer, (a) Other decisions have been rendered to the effect that the consumer owns the water right, even though the company holds formal title for purposes of exercise of the right and for protection of the interests of all concerned. (b) In early years, the Colorado Supreme Court took the view that the carrier of water, while having a special status in some respects different from that of the ordinary common carrier, does not become "a proprietor of the water diverted."602 Rather, it must be regarded as an intermediate agency existing for the purpose of aiding consumers in the exercise of their constitutional rights, as well as a private enterprise prosecuted for the benefit of its owners.603 Such a company, by means of which consumers enjoy their appropriation, is their trustee and representative for protection of their rights.60* Years later, in an action to enjoin the enforcement of a rate established by a board of county commissioners, the Colorado Supreme Court concluded that neither the whole nor any part of the value of the water rights should be included in the rate base. But, the court pointed out, the decreed appropria- tions of the company were of necessity dependent upon the joint and practically concurrent acts of the company and the water users. "The cases in Colorado dealing with situations analogous to the one before us all hold that neither the ditch company alone nor the users alone are appropriators in the strict sense of that term." Both diversion of the water and its beneficial application are necessary not only to constitute an appropriation, but also to its continued existence, whether performed by the same person or by different ones.605 In a 1962 case, the Colorado court said, among other things, that: The carrier creates the means of diverting water from the natural stream, carrying it to the place where the consumer can economically accept delivery from the carrier ditch (along with other consumers) and apply it to irrigation. Until the water has been actually applied to beneficial use there is no water right. The legal title to the decreed appropriation from the natural stream, however, belongs to the carrier which has a duty to protect it for the benefit of the consumers under the ditch. The carrier also has sufficient interest in 601Reno Power, Light & Water Co. v. Public Serv. Comm'n, 300 Fed. 645, 648-650 (D. Nev. 1921). 602 Wheeler v. Northern Colorado In. Co., 10 Colo. 582, 587-588, 17 Pac. 487 (1888). 603Wyatt v. Larimer & Weld Irr. Co., 18 Colo. 298, 308, 33 Pac. 144 (1893). 604Combs v. Farmers' High Line Canal & Res. Co., 38 Colo. 420, 429-432, 88 Pac. 396 (1907). 605 Jefferson County v. Rocky Mountain Water Co., 102 Colo. 351, 355-361, 79 Pac. (2d) 373 (1938). 450-486 O - 72 - 38 |