needs, and if that result be obtained, through return waters after first use by junior appropriators up the stream, the senior appropriator has no just ground of complaint." Vogel v. Minn. Co., 47 Colo. 534-540, 107 Pac. 1108.

Sec. 80. Riparian rights-Distinguished from constitutional and statutory rights.

"At common law the water of a natural stream is an incident of the soil through which it flows; under the constitution the unappropriated water of every natural stream is the property of the public. At common law the riparian owner is, for certain purposes, entitled to the exclusive use of the water as it flows through his land; under the constitution the use of the water is dedicated to the people of the state subject to appropriation. The riparian owner's right to the use of water does not depend upon user, and is not forfeited by non-user; the appropriator has no superior right or privilege in respect to the use of water on the ground that he is a riparian owner; his right of use depends solely upon appropriation and user; and he may forfeit such right by abandonment or by non-user for such length of time as that abandonment may be implied. A riparian proprietor owning both sides of a running stream may divert the water therefrom, provided he returns the same to the natural stream before it leaves his own land so that it may reach the riparian proprietor below without material diminution, in quantity, quality, or force; the appropriator, though he may not own the land on either bank of a running stream, may divert the water therefrom, and carry the same withersoever necessity may require for beneficial use, without returning it, or any of it, to the natural stream in any manner. The appropriator may, under certain circumstances, change the point of diversion as well as the place of application of the water; he has a property right in the water lawfully diverted to beneficial use, and may dispose of the same separate and apart from the land in connection with which the right ripened to anyone who will continue such use without injury to the rights of

others." Oppendlander v. Left Hand D. Co., & Colo. 142148, 31 Pac. 854; Sieber, et al., v. Frink et al., 7 Colo. 148, 2 Pac. 901; Fuller v. Swan River P. M. Co., 12 Colo. 12, 19 Pac. 836;Strickler v. City of Colo. Springs, 16 Colo. 61, 26 Pac. 313; Combs v. Agricultural D. Co., 17 Colo. 146, 78 Pac. 966; Farmers H. L. C. Co. v. Southworth, 13 Colo. 111, 21 Pac. 1028; Platte Water Co. v. Northern C. I. Co., 12 Colo. 525-531, 21 Pac. 74.

Sec. 81. Right to water appropriated is a freehold estate.

"The plaintiffs allege a right to have a certain quantity of water flow through the irrigation company's ditch. This right is an easement in the ditch. It is a right annexed to reany, and, being a perpetual right, is an incorporeal hereditament descendible by inheritance to plaintiff's heirs, and hence, a freehold estate." Wyatt v. Irrigation Co., 18 Colo. 298-307, 33 Pac. 144.

"The right acquired to water by an appropriator is of the same character **** as an incorporeal hereditament and easement." Id. 316.

Sec. 82. Same quantity may be appropriated for use at different times.

“One may make a prior appropriation of a certain quantity of water to be enjoyed for a designated period of time, and another person an appropriation of a like quantity from the same source during another period, and as to the same be a prior appropriator himself. In other words, there is no difference in principle between ‘an appropriation measured by quantity and an appropriation measured by time'." Cache la Poudre R. Co. v. Water S. & S. Co., 25 Colo. 161-167, 53 Pac. 331.

"For if the water company did not make such an appropri ation to be enjoyed during the winter season *** until after the plaintiff made its appropriation, and limited to that season, the latter, as to the volume of water actually appropriated

by it, becomes a senior appropriator as to the winter flow." Id. 166.

Sec. 83. Senior appropriators cannot enlarge rights to injury of junior appropriators.

"An appropriator of water from a stream already partly appropriated acquires a right to the surplus or residuum he appropriates, and those in whom prior rights in the same. stream are vested, can not extend or enlarge their use of water to his prejudice, but are limited to their rights as they existed when he acquired his (*** 6 Nev. 83; 25 Colo. 161; Kinney on Irrigation, Secs. 230-232; ***34 Cal. 109) because in such case, each with respect to his particular appropriation is prior in time and exclusive right. * * * There was presented in this case an entirely new question, namely, the right of the irrigation company to divert water for storage as against the plaintiff for power purposes, which depended for determination upon what the evidence established with reference to the time of the appropriation of each for these respective purposes, which was not settled by the statutory adjudication." Mill & E. Co. v. Irrigation Co., 26 Colo. 47-49, 56 Pac. 185.

In the above cited case the defendant sought to use water for storage during the non-irrigating season, based only upon its appropriation for irrigation.

Sec 84. Tenants in common.

"One tenant in common may preserve the entire estate held in common. This doctrine is applicable where the common estate is a water right, so long as the tenant in common has both the necessity for the use, and actually uses the water for a beneficial purpose." Cache la Poudre I. Co. v. Larimer & Weld R. Co., 25 Colo. 141-151, 53 Pac. 318.

Sec. 85. Title of land on which water is used is not necessarily in the appropriator.

"And the water diverted was immediately applied to the cultivation of lands then in his possession or under his con

trol, though several years elapsed thereafter before he obtained the title thereto." Thomas v. Guiraud, 6 Colo. 533.

Sec. 86. What does not constitute an appropriation.

a. A mere diversion.

"A mere diversion of water from a stream does not constitute an appropriation." Independent D. Co. v. Agricultural D. Co., 22 Colo. 513-521, 45 Pac. 444. There must be an ap plication to a beneficial use. Conley, et al. v. Dyer, et al., 43 Colo. 22-28, 95 Pac. 304. Tanghenbough v. Clark, 6 Colo. App. 235, 40 Pac. 153. Colo. L. & W. Co. v. Rocky Ford, etc. Co., 3 Colo. App. 545, 34 Pac. 580.

b. A grant.

"The acquisition of the right to the use thereof results from appropriation, and not from a grant by the state." New Mercer D. Co. v. Armstrong, 21 Colo. 357-366, 40 Pac. 989.

C. An enlargement of ditch.

Syl. "Held that the work voluntarily performed by defendant in enlarging the ditch, while in possession under the contract, should not be regarded an appropriation." McElravy v. Brooks, 48 Colo. 207, 109 Pac. 863.

d. Use by permission.

"Use of water by permission or by agreement with a municipality owning a ditch will not constitute an appropriation." Park v. Park, Executor, 45 Colo. 387, 101 Pac. 348.

e. Use during high water.

"The use of water from the creek, without regard to the decree, during high water only, can not be said to establish a use under the decree." Drach v. Isola, 48 Colo. 134146, 109 Pac. 748.

The length of time water can be used is analogous to an enlarged use. Bates v. Hall, 44 Colo. 360-369, 98 Pac. 3.

Sec. 87. Waste waters-Appropriation of.

a.

Excess water flowing on surface of land.

One can not appropriate an excess of water flowing on the surface from another party's land onto his own. The party allowing the water to so waste has no right so to do, and certainly he could not be enjoined from ceasing to do that which he had no right to do. Burkart, et al. v. Meiberg, 37 Colo. 187, 86 Pac. 98.

In the above cited case "A" had dug a ditch, along the boundary line between her land and "B's," on her land and had for a number of years used the waste surface flow from "B's" land for irrigation. "B" dug a ditch on her land and collected the waste water and transferred it to other land, thus depriving "A" of the water. Held, that "B" was in the right. Id. 187.

b. From ditch,

Syl. "Where an irrigation ditch at times ran a surplus of water, which surplus it discharged at its terminus into a natural drain, one who appropriated such surplus or waste water after it was discharged from the ditch acquired a right only to whatever water flowed from the ditch after the ditch company had supplied its own wants and necessities, and did not acquire a vested right to any specific quantity of water, and acquired no right to interfere with the water flowing in the ditch or any of its laterals, and the ditch company was under no obligation to permit any specific quantity of water to be discharged at the terminus of its ditch." Mabee v. The Platte L. Co., 17 Colo. A., 476, 68 Pac. 1058.

c. From tunnel.

See Sec's. 46, 51.

"The water from the tunnel finds its way to the stream and has become a part thereof. It inures to the benefit of all taking water therefrom. In this particular water the claimants have no interest or right which will permit them to segregate a volume of water equal to that flowing from the tun