THE COMMON LAW OF IRRIGATION. 299 



it to revert to the public. In the present condition of 

 the law in Colorado, as established by these decisions, 

 wi'iv it not for the legal and physical impossibility of 

 preventing the water of natural streams from being used 

 by settlers who need the same for irrigation, a monopoly 

 of non-using proprietors could, and might bo, main- 

 tained, to the serious detriment of the agricultural inter- 

 ests of the State, and an express statute of limitation 

 upon this subject would avert any evil from the source 

 indicated. One holding a water right should be required 

 to use the same for a beneficial purpose every year or 

 else forfeit his right. 



Acquisition of the Right. The right can only 

 be acquired by appropriation and application to beneficial 

 use, and the true test is the successful application to the 

 beneficial use designed ; and the method or means of 

 diverting or carrying the same is immaterial. 



Thomas vs. Guinarcl, 6 Col. 533 



Farmers H. L. Canal & R. R. Co. vs. Southworth, 13 Id. 114 



An erroneous notion for some time prevailed that 

 the construction of a ditch with a given capacity was 

 equivalent to the appropriation of water to the capacity 

 of the ditch, but recent decisions have exploded that 

 idea. A party may employ any means he chooses to 

 conduct the water from the stream to the lands irri- 

 gated ; open physical acts, such as the construction of a 

 ditch, flume, or other conduit is usually evidence of, but 

 does not constitute, appropriation. But our courts have, 

 by a line of decisions, established what may be termed 

 constructive as distinguished from actual appropriation. 



Siber vs. Frink, Supra 



Larimer Co. Res. Co. vs. People, 8 Col. 617 



Wheeler vs. North Col. Irr Co., 10 Id. 588 



Farmers' H. L. C. & R. Co. vs. Southworth, 13 Id. 115 



These decisions have led to much confusion and 

 uncertainty, and the doctrine will be fruitful of litiga- 



