ISFAPP00648 - Laserfiche WebLink

Home Browse Search

I' '\': I "h . ~ :. ~~::~~:.:" " " . ',' ., " "j". .-t ", ~,..,. " '~'}", .' i , Sinilarly, tho Court in Thomas v. Guir,aud, supra, , recognizeJ th~t actual diversion is not necessarily a pre- requisite to the establishment of a lawful appropriation: "The true test of appropriation of water is the successful application thereof to the beneficial use deSigne~ and the method of diverting or carrying the same,or making such application, is inunaterial." (Emphasis supplied.) .:~ :~~~" !.!!. at 533. More rece.!Jtly, in Town of Genoa v. Westfall, supra, /~ the Court stated that: "It is not necessary in every case for an appropriator of water to construct ditches or artificial ways through which the water might be taken from the stream in order that a valid appropriation be made. The only indis- ensable re uirements are that the a" roprlator nten 5 to use t e water or a ene ~c a1 purpose and actually applies them to that use." (Emphasis supplied. ) !.!!. at 547. The Guiraud, Larimer, and ~ cases, supra, differ from the present action in that these cases were primarily con- earned with whether natural methods of diversi.on, such as natural depressions and river overflO'."', may lawfully be "sed to appropriate water. The objectors' claim, on the ot!H::r hand, is that none of the claimed water will be diverted at all. ~on~- theless, the language set forth in the above cases is suffi- ciently broad to support a claim for water where nn diversion is contemplated, provided that the water is put to honeficial use. It is significant that most of the rolor~do C~3e5 which have held that an actual diversion is re<]'uired, ,no ,'ases which involve the appropriation of water for municipal and i:ri- gation purposes, e.g., Northern Colo~ado, supra; Board of County Conunissioners v. Rocky ~lountain Water Companr, 102 Colo. 351 (193C). For obvious reasons, such appropriations nearly ah.:a:ts require the actual ~iversion of water from the nn~~ral s~rearr. bed t.o the site whare the water will be applied to a beneficial use. On thu other hand, instream uses of water are clearly not dependent upon actual diversion.