dissenting:
I respectfully dissent. The water court denied the application for a conditional water decree because it concluded as a matter of law that the Twin Lakes Reservoir and Canal Company had not established the requisite intent to appropriate and the first step toward appropriation.
The purpose of a conditional water decree has always been to allow an ultimate appropriation of water to relate back to the time of the “first step” toward that appropriation. This permits long-term construction projects to be financed and commenced with the security of priority date which will insure available water upon completion of the project. See Taussig v. Moffat Tunnel Water & Development Co., 106 Colo. 384, 106 P.2d 363 (1940); Metropolitan Suburban Water Users Ass’n v. Colorado River Water Conservation District, 148 Colo. 173, 365 P.2d 273 (1961); Four Counties Water Users Ass’n v. Colorado River Water Conservation District, 159 Colo. 499, 414 P.2d 469 (1966). Accordingly, the “first step” entails two prongs: formation of an intent to appropriate a definite quantity for a definite beneficial use, and an overt manifestation of that intent so that others will have adequate notice. See Central Water Conservancy District v. City and County of Denver, 189 Colo. 272, 539 P.2d 1270 (1975); Baca Irrigating Ditch Co. v. Model Land & Irrigation Co., 80 Colo.398, 252 P. 358 (1927); Holbrook Irrigation District v. Fort Lyon Canal Co., 84 Colo. 174, 269 P. 574 (1928). A guiding principle in applying these elements has been whether the applicant seeks to “invoke the benefit of remote contingencies to unduly extend the doctrine of relation.” Fruitland Irrigation Co. v. Kruemling, 62 Colo. 160, 162 P. 161 (1916).
The majority opinion departs from the purposes of the doctrine of conditional water rights and the appropriate application of its elements. In so doing, it encourages abuse of the doctrine.
At stake in this case is a conditional water right of 100 c.f.s. for the New York Canal. The canal presently carries a conditional decree for 171 c.f.s. The only evidence of an “intent to appropriate” was the filing of the application for a conditional decree on April 30, 1973. Compare Central Colorado Water Conservancy Distrct v. City and County of Denver, supra; Oak Creek Power Co. v. Colorado River Conservation District, 182 Colo. 389, 514 P.2d 323 (1973). The requisite intent must be not merely an intent to appropriate, but an intent to appropriate for a beneficial use. See, e.g., Larimer County Reservoir Co. v. People, 8 Colo. 614, 9 P. 794 (1886). The evidence amply supported the conclusion of the water judge and should be affirmed on appeal. See Central Colorado Water Conservancy District v. City and County of Denver, supra.
The only evidence of an overt, physical manifestation of the requisite intent was testimony that, in the year 1935, “they built a ditch that had *217271 foot carrying capacity.” The issue was thus correctly stated by the majority: can physical acts, when performed “long before” the formation of the intent to appropriate, provide the basis for a conditional water decree? To accede to that proposition is unwise in several respects:
First and most obvious, it renders meaningless the long-established requirement that an overt physical act accompany the intent to appropriate. As we said in Fruitland Irrigation Co. v. Kruemling, supra: “Certainly the first step demanded by the rule is nothing short of an open and notorious physical demonstration, conclusively indicating a fixed purpose to diligently pursue and, within a reasonable time, ultimately acquire a right to the use of water, and as its primary function is to give notice to those subsequently desiring to initiate similar rights, it must necessarily be of such a character that they may fairly be said to be thereby charged with at least such notice as would reasonably be calculated to put them on inquiry of the prospective extent of the proposed use and consequent demand upon the water supply involved.” (Emphasis added.)
The purpose of the act is thus to inform the public of the existence of an intention to appropriate. Under the rule set forth by the majority, the purpose of the act is irrelevant, so long as it fortuitously happens to conform to a subsequently generated intent. This elevates the use of legal fiction, which provided a salutory function in the original doctrine of relation-back, into a logical absurdity which serves no legitimate purpose.
Second, the majority opinion invites litigation and abuse by leaving several questions unresolved. The majority opinion gives no guidance as to how long the interim vacuum between the act and the future intention may be. It clearly leaves the matter open-ended by approving a 41-year hiatus in this case. How does one construe an act whose only evident purpose was fulfilled long ago? In this case, the “enlarged” ditch carried its decreed and intended capacity for many years. The record indicated that obvious purposes for the “additional” capacity of the canal were protection from leakage and avalanche damage in the mountainous area. See Fruitland Irrigation Co. v. Kruemling, supra; Holbrook Irrigation District v. Fort Lyon Canal Co., supra.
Third, the majority position creates open-ended, lingering clouds on water rights. To allow wholly unrelated physical acts in the distant past to perfect a present, naked intention into a water right is to effectively give developers free preemptive rights over subsequent water allocations.
Fourth, the majority position gives the green light to abuse of the doctrine of conditional water rights. We have carefully considered the potential for overreaching and undue leverage in our past decisions. See Holbrook Irrigation District v. Fort Lyon Canal Co., supra; Fruitland Irrigation Co. v. Kruemling, supra. By allowing this departure from reality, where no concurrent or subsequent physical *218development is required, the majority endorses the creation of paper rights for phantom appropriations.
Fifth, the complete absence in this case of a meaningful physical element or “first step” signals a gross departure from the policy of conditional water rights. See Central Colorado Water Conservancy District v. City and County of Denver, supra. Here no structure was built, no pipeline laid, no earth moved in furtherance of the appropriation. No long-term construction, planned or evident, benefits from the invocation of the doctrine. What remains is only a present intent to take as much water as possible, based upon the fortuity of some prior, unrelated physical acts and a distortion of the policy and prerequisites of conditional water rights.
Finally, the majority opinion states that testimony that the Twin Lakes Company “intended from the outset to take the full amount of water available there” was “without conflict.” The defect in this analysis is that the testimony was by an agent for Twin Lakes who was employed in 1969 and made the current claim. Wittemeyer’s other testimony clearly indicated that the Twin Lakes Company had no inkling that it could appropriate additional water until the present action was contemplated in the early 1970’s. Moreover, every landowner, water board, and developer in the state obviously may have a similar abstract intent to acquire all water that is available. Such an intent is not enough. To allow such an “open-ended” intention to appropriate to be substituted for the traditional concept of an intention to appropriate a specific quantity for a specific use is to abandon the foundation of our water law. We have always insisted on concrete intentions to achieve concrete results. The testimony regarding an unbounded intent to appropriate was thus not only patently self-serving, but irrelevant.
Accordingly, I would affirm the water judge.
MR. JUSTICE LEE and MR. JUSTICE CARRIGAN have joined in my dissent.