92 



reasonable diligence in securing settlers to make such application is 

 hard to answer. The courts of Colorado have avoided it by ignoring 

 it entirel}^ (see pp. 2(5-36 ) and decreeing rights usually on the basis of 

 the estimated capacities of the ditches or on the areas under the 

 ditches, dating the right to the full amount on the date of construc- 

 tion, regardless of when the water was finally put to use or whether 

 it has ever been used. In doing this the Colorado courts are, how- 

 ever, clearly within the law, since the statute providing for the 

 adjudication of water rights directs the courts to — 



* * * make and cause to be entered a decree determining and establishing 

 the several priorities of right, by appropriation of water, of the several ditches, 

 canals, and reservoirs in such water district, concerning which testimony shall 

 have been offered, each according to the time of its said construction and enlarge- 

 ments, or extensions, with the amount of water which shall be held to have 

 been appropriated by such construction and enlargements, or extensions, 

 describing such amount by cubic feet per second of time, if the evidence shall 

 show sutticient data to ascertain such cubic feet, and if not, by width, depth, 

 and grade, and such other descriptions as will most certainly and conveniently 

 show the amount of water intended as the capacity of such ditch, canal, or 

 reservoir, in such decree. (Mills Ann. Stat., sec. 2403.) 



The courts of Colorado have repeatedly held that the application 

 of the Avater to a beneficial use was necessary to the acquirement of 

 a right," and these decrees are, therefore, not final. The status of 

 rights thus decreed is brought out by Justice Campbell, of the supreme 

 court of Colorado, in two cases decided in 1895.'' In the first case a 

 ditch Avas awarded a right in excess of its use and did not after the 

 decree use the surplus, but after several years attempted to transfer 

 it. In the second case it was alleged that a ditch was awarded more 

 water than it had used up to that time; but after the rendering of 

 the decree had used the volume decreed. It was held that in the first 

 case the decree, not being appealed from Avithin the statutory period, 

 was conclusive as to the rights of the ditch company, but its failure 

 to put the volume of Avater decreed to it to a beneficial use Avithin a 

 reasonable time constituted an abandonment. In the second case, 

 also, the decree was conclusive,, but the water Avas immediately put 

 to a beneficial use and the ditch had the right to the quantity decreed 

 it, even if it had never used this volume prior to the rendering of the 

 decree. 



Under these decisions a decree becomes someAvhat analogous to an 

 approved application in Wyoming or Nebraska, Avith this differ- 

 ence: The approved application states the time Avithin Avhich the 



" Tlu' diversion ripens into a valid nppr()i)riati(m only when the water is 

 utilized by the consumer." (Platte Water Company v. Nortliern Colorado 

 Irrigation Company, 12 Colo., 5.31.) 



& New Mercer Ditch Company r. Armstrong, 40 Pac, 080 ; and Boulder and 

 Weld County Ditch Comi»any r. Lower Boulder Ditch Company, 43 Pac, 540. 



