dissenting:
In my opinion, the resumé notices published pursuant to Monaghan Farms’ applications in this case were misleading and confusing, causing Denver not to oppose the application or amended applications. Thus, I would hold that the water court’s decree granting to Monaghan Farms rights to the groundwater in this case is void. I would require Monaghan Farms to reapply for a determination of water rights in a manner that provided adequate notice to all parties as to the type of water claimed and as to the right to that water sought. Accordingly, I respectfully dissent.
Denver seeks review of the original decree of the District Court, Water Division No. 1 (water court), dated April 29, 1987, determining that the groundwater in the Denver aquifer was not nontributary and ruling that the water right was not subject to reasonable diligence requirements but was to be exercised only pursuant to a court-approved plan for augmentation under section 37-90-137(9)(c), 15 C.R.S. (1990). Denver seeks this appellate review even though Denver neither protested the water referee’s original rulings nor appealed the original decree of the water court within the statutory time limit set forth in C.A.R. 4(a).
Appellate review of the original decree is not precluded if the resumé notices were insufficient under the Water Rights Act. State Engineer v. Smith Cattle, Inc., 780 P.2d 546 (Colo.1989); Stonewall Estates v. C.F. & I. Steel Corp., 197 Colo. 255, 592 P.2d 1318 (1979). To prove that the re-sumé notices were insufficient, Denver must show that the resumé notices did not put Denver on adequate “inquiry notice of the nature, scope, and impact of the pro*21posed” determination, Closed Basin Landowners Ass’n v. Rio Grande Water Conservation Dist., 734 P.2d 627, 634 (Colo. 1987); Smith Cattle, 780 P.2d at 552, based on the particular facts of this case. Closed Basin, 734 P.2d at 635; Smith Cattle, 780 P.2d at 552. If the resumé notices would cause confusion or were in any way misleading as to the type of water claimed or the nature of the right sought, the re-sumé notices were inadequate and the decree approved by the water court is void. Closed Basin, 734 P.2d at 634; Pueblo West Metropolitan Dist. v. Southeastern Colorado Water Conservancy Dist., 717 P.2d 955, 958 (Colo.1986) (“Pueblo West II”); Pueblo West Metropolitan Dist. v. Southeastern Colorado Water Conservancy Dist., 689 P.2d 594, 602 (Colo.1984) (“Pueblo West I”).
The facts of this ease are most closely analogous to Stonewall Estates v. C.F. & I. Steel Corp., 197 Colo. 255, 592 P.2d 1318, where we held that a resumé was defective because it did not state that nontributary water was involved. We described the failure to mention the nontributary character of the water in Stonewall Estates as an omission of “material” information because, if the water were tributary (as interested parties were then entitled to assume), senior appropriators would not challenge the application in reliance on the tributary priority system’s protecting their rights to the water. Pueblo West II, 717 P.2d at 958; Pueblo West I, 689 P.2d at 602; Stonewall Estates, 592 P.2d at 1320, 197 Colo, at 258-59; cf. Smith Cattle, 780 P.2d 546 (resumés that did not identify waters as nontributary were nevertheless sufficient where complainant’s contention was that Arkansas River Rules should apply to the water at issue and the complainants were advised adequately that the applicants sought a decree that the water came from a source independent of the Arkansas River system).
In this case, Denver seeks to assert that not nontributary groundwater in the Denver aquifer is subject only to a conditional right. The fact that Monaghan Farms sought rights to not nontributary water, therefore, was material information. For Denver to be put on adequate notice to assert its interest, the resumé notices must have specified clearly that the water in the Denver aquifer for which the right was sought was not nontributary groundwater. In my opinion, the resumé notices published pursuant to Monaghan Farms’ application and amended applications did not provide such notice.
In none of the resumé notices is the source of water described as anything but “nontributary.” In the May, 1985 resumé, paragraph 3 read as follows:
Source of water:
Nontributary Denver, Arapahoe and Laramie-Fox Hills Formations.
Any impact on a natural stream from the pumping of these wells will be de min-imis.
Paragraph 3 of the December, 1985 resumé provided in relevant part:
Source of water:
Nontributary Denver aquifer. Any impact on a natural stream from the pumping of these wells will be de minimis, and withdrawal of groundwater from the Denver aquifer as requested herein will not deplete the flow of any natural stream at an annual rate greater than one-tenth of one percent (.1%) of the annual rate of withdrawal. The groundwater in the Denver aquifer involved in this Application is “nontributary groundwater” as defined in C.R.S. section 37-90-103(10.5)....
The February, 1986 resumé did not amend paragraph 3 and no “source of water” paragraph was published. Thus, a party seeking to assert that only conditional rights could be awarded for not nontribu-tary groundwater who read this paragraph of the resumé notices would be misled to believe that the applicant sought only rights for nontributary groundwater.
I emphasize that the location of the water specified in the above descriptions of the source of water was adequate. It was the description of the nature of the water as nontributary that was misleading and confusing. This distinguishes the present case from Pueblo West I, upon which the *22majority relies. In Pueblo West I, the protestants argued that resumés were insufficient because the water came from a source different from that specified in the description of the source of water. Pueblo West I, 689 P.2d at 598-99. We held that the protestants had failed to carry their burden of proving that a genuine issue of fact existed on the notice issue. Pueblo West I, 689 P.2d at 601. We distinguished Stonewall Estates on the grounds that “Stonewall Estates involved a serious omission of material information from the application and resumé, whereas in the instant case neither the application nor the resumé prepared from it was in any way misleading as to the nature of the conditional water storage rights sought to be made absolute.” Pueblo West I, 689 P.2d at 602 (emphasis added). We did not discuss any impact which the assertedly incorrect description of the source of water had in discouraging protestants from challenging the applications. The assertedly incorrect description of the source of water in Pueblo West I, therefore, was not shown to be material information. In the case now before us, on the other hand, the distinction between nontributary and not nontributary was material. Monaghan Farms’ failure to distinguish adequately between nontribu-tary and not nontributary water caused Denver not to oppose the application.1
The case captions in the resumé notices also were confusing and misleading. The case caption in the May, 1985 resumé simply was, “Application for Underground Water Rights From Nontributary Sources In ADAMS COUNTY.” (Emphasis in original.) The case caption for the December, 1985 resumé was, “Amended Application for Underground Water Rights from Non-tributary Sources, IN ADAMS COUNTY.” (Emphasis in original.) The February, 1986 resumé amended the case caption to read, “Amended Application for Nontributary Groundwater Rights in the Nontributary Denver Aquifer, or in the Alternative for Nontributary Groundwater Rights in the Nontributary Denver Aquifer and Quantification of Amount and Depletive Effects of Withdrawal of Not Nontributary Groundwater in the Denver Aquifer.” The amended case caption for the February, 1986 re-sumé was the only caption that mentioned not nontributary groundwater and that reference was ambiguous at best. Although this amended case caption mentioned not nontributary groundwater in the Denver aquifer, the caption did not indicate adequately that Monaghan Farms sought water rights with respect to the not nontribu-tary groundwater.
The only mentions of a claim for rights to not nontributary water were in the alternative prayers for relief in the December, 1985 and February, 1986 resumés, near the end of the body of those resumés. In my opinion, this did not provide adequate notice of the critical distinction between seeking rights to nontributary and not nontribu-tary water. This distinction was material information that caused Denver not to oppose the application in this case.
The nature of water rights in not nontri-butary groundwater in the Denver aquifer is an important and undecided question. As the majority points out, “neither the statute nor our decisions address whether water rights concerning not nontributary ground water outside designated ground water basins are to be absolute or conditional prior to application of water to bene*23ficial use.” Maj. op. at 17. question is so important, I am unwilling to agree with the majority that Denver’s opportunity for judicial review is foreclosed on the basis of the misleading resumés filed in this case. For these reasons, I respectfully dissent. Because the
I am authorized to state that Justice VOLLACK joins in this dissent.
. The materiality of the confusing and misleading information in the resumé notices also distinguishes the present case from the other cases cited by the majority. See Closed Basin, 734 P.2d at 635 (holding that resumé notices that did not specify location of wells and amount of water to be withdrawn by each well provided adequate notice given the nature of the project, which called for the construction of over 100 wells in an area containing over 100,000 acres); Pueblo II, 717 P.2d at 958 (holding that a resumé that failed to specify two wells as alternate points of diversion provided adequate notice because “the omission of the two wells from the resumé notice was not sufficiently material to deprive the water court of jurisdiction”); compare Danielson v. Jones, 698 P.2d 240 (Colo.1985) (holding that a resumé notice that did not indicate that the applicant sought a right that authorized the use of water for fish culture and storage provided insufficient notice in the face of a challenge by the state engineer who presented testimony that the well to be used to supply water for those purposes would divert water away from an already overappropriated stream system).