concurring in part and dissenting in part:
I concur in parts I-VI of the majority’s opinion, affirming the water court’s decision in case No. 203. I respectfully dissent from part VII of the opinion which affirms the water court’s decision in case No. 202 and rejects the attempt of the Upper Gun-nison River Water Conservancy District *858(the “District”) to add fishery and recreational uses to the decreed water rights. I conclude that the District does have authority to apply for a change in a water right, even though the right is owned by the United States in trust for the Uncom-pahgre Valley Water Users Association (the “Association”).
I.
First, it is apparent that the proposed uses are consistent with the terms of the decree. The 1941 decree gave the United States the rights to 106,230 acre feet of water, the capacity of the Taylor Park Reservoir, for irrigation purposes “and for beneficial purposes other than irrigation,” including, without restriction, municipal, domestic, stock watering, and manufacturing purposes. Fishery and recreational uses are within the very general uses described in the decree.
Second, the water presently is used for fishery and recreational activities. In 1972, in order to stabilize flows in the Taylor River, and to ensure sufficient water for fishery and recreational purposes, the United States entered into the exchange agreement with the Association. That agreement was superseded by the 1975 contract (the “1975 Agreement”), which included the District as a party. The 1975 Agreement placed the District in a position to enhance and protect fishing and recreation interests because it was authorized to request releases from the reservoir, with the approval of the United States.
Third, the United States through the Bureau of Reclamation has recognized the District’s right to seek the proposed uses. At trial, two officials of the Bureau of Reclamation, Frederick Joseph Crabtree, Chief of the Operation and Maintenance Branch, and J. Ronald Johnston, Project Manager of' the Projects Office, testified that the District had the authority to appropriate and to add additional uses to the water in the Reservoir under the 1975 Agreement. In addition, Richard Bratton, the District’s attorney, testified that his understanding prior to the onset of the present litigation was that “surplus flows” meant all of the water in the Reservoir, appropriated or not, but subject to the priorities of the Uncompahgre Valley Water Users Association.1
Finally, the uses for which the District applied are the same as those for which the United States applied in its Application for Confirmation of Existing Right of Exchange, filed after the 1990 agreement. See maj. op. at 846 for a discussion of the 1990 agreement. There, the United States • named both the water rights granted to the District for recreation, fishery, wildlife, and irrigation purposes in case No. 203, as well as water rights which would be deeded over to the United States by the District if this court reversed the Water Court in case No. 202. Thus, the facts of record support the conclusion that the District was authorized to add fishery and recreational uses.
In my view, the majority reads too narrowly the requirements for standing to apply for a change in a water right in concluding that “only the owner of a decreed water right has the requisite legal interest in such decree to obtain a change in the water right subject to the terms thereof.” Majority op. at 855. As this case illustrates, interests in water rights are much too complex to be resolved simply by determining which entity has bare legal title to the water rights.
Here, the District has certain indicia of ownership over the water usage at issue. Pursuant to the 1975 Agreement, the approval of the District is required if the United States or the Association wish to sell, lease, or exchange water from the Taylor Park Reservoir. The District’s proposed “change” in water right is for a use which was within the 1941 decree as discussed above, and is clearly anticipated by the United States. See 43 U.S.C. § 620g and 16 U.S.C. § 460Í-18 (both of which authorize the building and maintenance of recreational and wildlife enhancement facil*859ities at reclamation reservoirs). Under the facts of this case where the title owner does not object to the added uses and the added uses will be deeded over to the title owner, I see no reason to deny the District’s request.
Further, the majority’s reliance on bare legal title is inconsistent with our prior cases defining the exercise of water rights. In the context of a mutual ditch company, for example, we have treated the owner of shares in the company as the holder of a water right even though legal title to the water right is held by the company. We have said that the shareholder has the “exclusive use” of a pro-rata share of the water rights held by the company and has the same right to change the water’s uses as any other appropriator. Jacobucci v. District Court, 189 Colo. 380, 387-88, 541 P.2d 667, 672 (1975). If legal title is dispos-itive, then this analysis must be wrong. In addition, private agreements can and do modify water rights, and we have given effect to such agreements. See Fort Lyon Canal Co. v. Catlin Canal Co., 642 P.2d 501 (Colo.1982) (enforcing bylaw of mutual ditch company which prohibited shareholder from seeking to change point of diversion without consent of company’s board of directors) and cases cited therein. In the present case, a private agreement permits the District to add the water uses which it seeks and we should enforce that agreement.
II.
The trial court ruled that the District was not entitled to a decree because the added uses did not relate to “surplus flows” within the meaning of the 1975 Agreement. I disagree.
The authority granted to the District to apply for a water right was limited by the 1975 Agreement to “surplus flows” in the Taylor River. The water court concluded that the District had no authority to make the application in case No. 202 because:
The District’s only authority was to make application for a water right which pertained to the “surplus flows of the Taylor River above the Taylor Park Reservoir....” The Court concludes that the parties to the 1975 Agreement intended the words “surplus flows” to refer to unappropriated water in the Taylor River. However, the 1904 irrigation decree for the Taylor Park Reservoir by definition identifies previously appropriated water.
(emphasis in original). Thus, the water court equated “surplus flows” with unappropriated water.
This conclusion is contrary to the basic principles of contract construction. The parties to the 1975 Agreement must be presumed to have intended the phrase “surplus flows” to have some meaning with regard to the purposes of the contract. Equating “surplus flows” with unappropriated water gives no new rights or protection to the District. The water court has misread the intent of the parties to the agreement, especially in light of the 1990 Agreement, the United States’ Application for Confirmation of Existing Right of Exchange and the other facts discussed above. A more plausible reading of the phrase would be that the District is limited to water uses that do not interfere with the primary purposes of the Uncompahgre Valley and the Colorado Basin Storage Project reclamation projects, i.e., agricultural irrigation use. Here, there is no evidence that fishery and recreation uses which are non-consumptive have or will interfere with irrigation use. Furthermore, because the District’s requested priority date is 1975, compared to the 1941 decree’s 1902 priority date, it does not appear that any such conflict is possible. We should remand this issue to the water court to consider the application in case No. 202 on its merits. We should order the water court to quantify the District’s proposed water uses, and, if necessary, to condition such uses in order to prevent injury to the holders of more senior water rights.
For these reasons, I respectfully dissent from the majority opinion as to part VII.
. Bratton also testified that, after the District had gotten into litigation, his understanding was that "[sjurplus waters means the waters in excess of that above the first filling of the United States under the original Uncompahgre decree.”