dissenting:
I respectfully dissent. The water rights in issue were acquired in an eminent domain proceeding in 1911. In that proceeding, the condemnor sought to acquire 300 statutory inches of water, which is equivalent to 7.81 cubic feet of water per second of time. A municipality or governmental entity, subject to statutory limitations, can invoke the right of eminent domain to acquire water rights, but an eminent domain proceeding cannot be utilized to adjudicate water rights or change the use of existing water rights.
The City of Grand Junction, as condemnor, named the holders of direct flow water rights as condemnees. The water judge concluded that the only rights condemned in 1911 were direct flow rights and denied the City of Grand Junction the right to store the direct flow water that it was able to capture. In my judgment, his decision is correct. Neither adverse possession nor prescription is an issue. '
In Handy Ditch Co. v. Greeley & Loveland Irrigation Co., 86 Colo. 197, 280 P. 481 (1929), this court delineated the differences between direct flow rights and storage rights. Water which is diverted for direct flow is put to immediate beneficial use. Water which is stored is *292subsequently put to beneficial use.
The water rights which were condemned were specifically set forth in the condemnation petition and in the subsequent judgment. The rights were direct flow rights and not storage rights. To characterize the condemnation proceeding as one in which “the City acquired rights from and paid damages to every appropriator for the loss sustained” (emphasis in majority opinion) is thus to beg the question. See Baker v. City of Pueblo, 87 Colo. 489, 289 P. 603 (1930).
The condemnor stands in no better position than the prior direct flow owners who were the condemnees in 1911. Farmers Co. v. Golden, 129 Colo. 575, 272 P.2d 629 (1954). See State Highway Department v. Dawson, 126 Colo. 490, 253 P.2d 593 (1953). That the 1911 condemnation judgment recognized this principle is reflected in the designation that the city acquired rights to a “continuous flow” of 7.81 c.f.s. Thus, the majority conclusion that “[i]n the City’s exercise of its power of eminent domain, all parties had notice that the water was taken unconditionally,” is not supported by the record or as a proposition of law.
Storage rights are defined in static storage terms, such as “acre feet” or “cubic feet.” In contrast, “direct flow rights” are defined in terms that are appropriate to diversion from a flowing stream and are represented by such terms as “cubic feet per second” or by the equivalent definition — “statutory inches.”
The 1911 judgment specified that the property condemned by the City of Grand Junction was 300 inches, or the equivalent of 7.81 cubic feet per second of water. The 1911 judgment does not mention the term “store” or any derivative or synonym thereof. Moreover, the difference between the right to store water and the right to divert the direct flow of a stream to put the water to immediate beneficial use was recognized long before 1911. See New Loveland & Greeley Irrigation & Land Co. v. Consolidated Home Supply Ditch Co., 27 Colo. 525, 62 P. 366 (1900).
The majority opinion ignores the distinction and grants water rights acquired in an eminent domain proceeding a special status. The record reflects that neither the court nor counsel was able to find authority which treats a direct flow decree acquired in an eminent domain proceeding in a manner that would be different than any other decree.
Moreover, the implications of the majority opinion ignore the basic tenet of Colorado water law that there is no “fee simple” in water. See Coffin v. Left Hand Ditch Co., 6 Colo. 443 (1882). Water rights are usufructuary — the entire public of the state holds ultimate title to the waters of the state. Any holders of subordinate rights, including those purchased or condemned by a municipality, can exist only by virtue of some appropriation and as explicitly determined by decree. The majority apparently equates the fact that “necessity of holding waters in reservoirs was obvious then as now,” with the proposition that the necessity creates the *293right. This is not the law. Being so bound, a city cannot be “unquestionably entitled to do what is reasonably necessary to carry out the public purpose for which the water was taken.”
In City of Westminster v. Church, 167 Colo. 1, 445 P.2d52 (1968), the City of Westminster had purchased both direct flow rights and storage rights from a private party who had historically used the rights for agricultural purposes. The city sought to have the point of diversion of the direct flow rights, and the usage of all the rights, changed to accommodate certain municipal purposes, including water storage. We were then guided by the following language:
“Equally well established, as we have repeatedly held, is the principle that junior appropriators have vested rights in the continuation of stream conditions as they existed at the time of their respective appropriations, and that subsequent to such appropriations they may successfully resist all proposed changes in point of diversion and use of water from that source which in any way materially injures or adversely affects their rights.”
City of Westminster v. Church, supra, quoting Green v. Chaffee Ditch Co., 150 Colo. 91, 371 P.2d 775 (1962). Accord, Farmer’s Highline Canal & Reservoir Co. v. City of Golden, 129 Colo. 575, 272 P.2d 629 (1954); Enlarged Southside Irrigation Ditch Co. v. John’s Flood Ditch Co., 116 Colo. 580, 183 P.2d 552 (1947). The court then noted that any direct flow rights were limited by prior historical use of the municipality’s predecessor in interest and concluded:
“Defendant City of Westminster could not enlarge upon its predecessors’ use of the water rights by changing periodic flow for irrigation to a continuous flow for storage. Such a change would necessarily increase the ultimate consumption from the stream to the detriment of other appropriators.”
Accordingly, I would affirm the water judge.
MR. JUSTICE LEE has authorized me to say that he joins me in this dissent.