dissenting.
I dissent because the majority, for the first time, articulates the requirement that for a successful adverse possession claim against water rights, the party asserting the claim must show he beneficially used a specific quantity of water expressed in acre feet. I believe this is an inappropriate case in which to announce this new legal principle. The argument that beneficial use of a specific quantity of water is an element of an adverse possession claim was not directly raised at trial, and is not necessary to resolution of the issues before this court. Accordingly, I dissent.
Ralph Archuleta brought suit seeking an injunction to prevent Theodore Gomez from interfering with the use of certain water rights for which Archuleta is the deeded owner. Gomez counterclaimed, seeking a determination that he acquired title to these water rights through adverse possession. The only issue before the water court was whether Gomez adversely used Archuleta's water rights for the statutory period of eighteen years. Based on the evidence before it, including testimony from Gomez, Archuleta, and neighboring property owners, as well as rotation agreements governing the ditches in question, the water court determined Gomez's account of water usage was more credible than Archuleta's.
Although based on disputed evidence, the water court found Gomez used all of Archule-ta's deeded water rights. While not explicit in the trial court's order, the record supports a finding that Gomez used the water for irrigation purposes, particularly since the only evidence of use was for irrigation. In reaching this conclusion, the water court accepted the parties' starting point that the water Gomez used was the water for which Archuleta had a deeded interest. The disputed question at trial was whether Gomez had used all of Archuleta's water rights for eighteen years. The water court concluded the quantity of water for which Gomez made continual, actual, adverse, hostile, notorious, and exclusive use constituted all of Archule-ta's water rights in the ditches in question. The majority does not utilize the standard of review that we apply to a water court's factual findings, but instead prefers to argue the disputed evidence as if the majority were the fact finder. Similarly, the majority does not claim the inferences made by the water court were unsupported by the evidence, but instead prefers to ignore the water court's resolution of disputed facts.
Until this appeal, the only matter for determination was whether Archuleta's or Gomez's account of water use was more eredi-ble. However, on appeal, Archuleta argues the claimant must show abandonment of the water plus a new appropriation by the claimant for a successful claim of adverse possession of water rights. This argument is incorrect, and easily resolved. Matter of Water Rights of V-Heart Ranch, Inc., 690 P.2d 1271, 1278 (Colo.1984) ("A party seeking to establish ownership of a water right by adverse possession has the burden of establishing that such possession is actual, adverse, hostile, and under a claim of right, as well as open, notorious, exelusive and continuous for the prescribed statutory period."). In the course of making this easily refuted argument, and in arguing that Gomez didn't use all of his water rights for eighteen years, Archuleta made several statements regarding the necessity of an adverse possession claimant to show the precise amount of water he used. The majority grasps at these few statements in order to claim he raised the issues the court resolves; however, when the statements are read in context, it is clear Archuleta was not making the argument the majority finds compelling.
I agree with the logic that, because new appropriations require beneficial use, an adverse possessor of water rights should also show beneficial use. However, this element is not statutorily required and has never before been articulated by a court in this *350state. The majority states the beneficial use requirement as if it has always been part of adverse possession law. This requirement may be a logical addition to the elements of adverse possession of a water right; however, it is a new proposition.1. I believe that, given the small amount of water in question, the amount of time this litigation has already taken," and the issues at stake, this is an inappropriate case in which to announce a new legal requirement.
In addition to the beneficial use requirement, the majority asserts that in order to successfully claim adverse possession of water rights, the claimant must mathematically quantify the exact amount of water beneficially used. The majority suggests this should be done in consultation with experts and include testimony regarding historic water consumption and the nature and extent of crop production on the land. This is a new requirement for an adverse possession claimant of decreed ditch water rights.
Further, even with the additional elements of beneficial use and precise quantification of the amount of water used added to the requirements for adverse possession of water rights, I do not believe reversing the water court and remanding the matter for determination of beneficial use is required. The trial court determined the quantity of water Gomez used was all of the water to which Archuleta had deeded interests. Quantification of Archuleta's deeded water rights appears in the deeds quoted by the majority. A water right is a use right and, for a successful adverse possession claim, the claimant must prove he used the water. The act of using water necessarily implies a beneficial use. In Colorado, irrigation is a beneficial use of water. Farmers' Indep. Ditch Co. v. Agricultural Ditch Co., 22 Colo. 513, 521, 45 P. 444, 450 (1896) (application of water to land constitutes a beneficial use). Therefore, the evidence that Gomez was using all of Archuleta's deeded water rights for irrigation is sufficient to support the water court's conclusion that Gomez satisfied the elements of adverse possession even given the beneficial use and precise quantification requirements articulated by the majority.
Given that a beneficial use requirement has not previously been articulated in our adverse possession law, and beneficial use is implied in the trial court's findings, I would not reverse the water court. Accordingly, I respectfully dissent.2
. While stating the beneficial use requirement as if it has always been an element for adverse possession of a water right, the majority seems to recognize this is a new requirement because it takes the unusual step of sending the case back to the water court for particular findings, generally recognized as a remedy for newly announced legal principles, when a simple reversal would otherwise be appropriate.
. This matter was initially tried in district court in Huerfano County in 2003. On appeal, the court of appeals held water courts had exclusive jurisdiction over cases involving adverse possession of water rights, and remanded the matter to the water court. The only issue throughout these multiple proceedings has been that of credibility.