THE COMMON LAW OF IRRIGATION. 479 



rado, as established by these decisions, were 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 be, maintained, to 

 the serious detriment of the agricultural interests of 

 the State, and an express statute of limitation upon 

 this subjedl would avert any evil from the source indi- 

 cated. One holding a water right should be required 

 to use the same for a beneficial purpose every year or 

 else forfeit his right, and the Colorado Legislature has 

 latterly provided a statute covering the exigencies of 

 such a circumstance. 



Acquisition of the Right. — The right can only 

 be acquired by appropriation and application to bene- 

 ficial use, and the true test is the successf iil application 

 to the beneficial use designed ; and the method or 

 means of diverting or carrying the same is immaterial. 



Thomas vs. Guinard, 6 Col. 533 



Farmers H. L. Canal & R. R. Co. z'^. Southworth, 13 Id. 114 



An erroneous notion for some time prevailed that 

 the constru(5lion 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 

 condudl the water from the stream to the lands irri- 

 gated ; open physical adts, such as the construdlion 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 



