author: BRYNER, Justice. CARPENETI, Justice,

text:
    Robert J. RIDDELL, Appellant, v. Irvin H. EDWARDS, Appellee.
    No. S-10025.
    Supreme Court of Alaska.
    Sept. 5, 2003.

      Robert J. Riddell, pro se, Ward Cove.
    Bryan T. Schulz, Holman & Schulz, Ket-chikan, for Appellee (no brief filed).
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

BRYNER, Justice.

I. INTRODUCTION

In a probate proceeding involving the estate of his deceased wife, Robert J. Riddell petitioned as a surviving spouse to receive his statutory homestead allowance, family allowance, and elective share. Despite finding that Riddell had "ingratiated himself" to his wife before their marriage "for the purposel ] of obtaining her assets" and that his wife had suffered from dementia for the majority of their relationship, the superior court ruled that Riddell and his wife had been validly married and that the estate had no standing to argue that the marriage was voidable. The court nonetheless concluded that Rid-dell's unconscionable conduct warranted establishing a constructive trust to give the estate Riddell's statutory benefits. Because the superior court's finding that the marriage was valid is not disputed and because Alaska law unconditionally gives the surviving spouse of a valid marriage the right to marital allowances and a share of the estate based solely on the existence of a valid marriage, we hold that the necessary elements for a constructive trust are lacking and that establishing the trust exceeded the court's equitable powers. We thus vacate the trust and remand with directions to fix the amount of Riddell's statutory benefits.

II. FACTS AND PROCEEDINGS

In December 1993 Lillie Rahm-Riddell, who was in her early nineties, met Robert J. Riddell, who was in his mid-sixties. Riddell ingratiated himself to Lillie and became her handyman. He soon moved in with her and started to isolate her from her family and friends. Riddell married Lillie in Ketchikan in May 1995, while guardianship proceedings were pending to determine Lillie's competency to manage her personal and financial affairs. Those proceedings resulted in the appointment of the Public Guardian as Lillie's primary conservator; several months later, prompted by reports of domestic violence, the superior court entered an order restraining Riddell from contacting Lillie. Lillie moved to an assisted-living home in Washington state. Riddell spirited her away from the home and took her to Oregon, where they lived together until Lillie died in September 1997. The entire time that Lillie knew Riddell, she suffered from Alzheimer's disease and/or senile dementia.

Lillie's brother, Irvin H. Edwards, accepted the superior court's appointment as personal representative of her estate. Ensuing litigation between the estate and Riddell generated three appeals. In the first appeal, we affirmed the superior court's order invalidating for lack of testamentary capacity a will that Lillie executed shortly before her death leaving her entire estate to Riddell. In the second, we affirmed the superior court's order denying creditor claims that Riddell filed against the estate seeking compensation for alleged premarital and marital services to Lillie.

The third appeal, which we now consider, arises from two related superior court orders: (1) an order declaring Lillie's marriage to Riddell valid and finding Riddell eligible as Lillie's surviving spouse to claim his statutory rights to allowances and share; and (2) a subsequent order, based on a finding of fraudulent conduct by Riddell toward Lillie, establishing a constructive trust in the estate's favor to receive Riddell's payments of allowances and share. Our decision requires us to describe these orders in considerable detail.

In the course of the probate proceedings, after Riddell petitioned for his statutory al-lowancees and share, the superior court ordered briefing and conducted a hearing to determine the validity of the marriage. The estate sought to invalidate the marriage, arguing that it was voidable because Lillie had been incompetent and Riddell had fraudulently induced her to enter into the marriage. Following the hearing, the court issued a thoughtful and carefully reasoned decision that found clear and convincing evidence of Riddell's fraudulent conduct toward Lillie but nevertheless rejected the estate's challenge to the marriage and declared Riddell eligible to claim allowances and share.

The superior court began its decision by unequivocally recognizing the compelling evidence of Riddell's misconduct toward Lillie:

A review of the prior evidence and the new evidence leaves no question to any objective observer by clear and convincing evidence Mr. Riddell ingratiated himself to [Lillie] for the purposes of obtaining her assets. She was suffering from dementia, was alone and lonely and he did small things for her in a way that kept her from making decisions that she would have made when she was fully competent. He isolated her by changing her phone, bullying family and friends that were old and frail themselves in such a way that they were not able to be supportive of her.
Three separate court actions involving injunctions under the Domestic Violence law, a conservatorship and a guardianship were filed. Lawyers, a conservator, a temporary guardian and a guardian ad litem were appointed for [Lillie]. Mr. Riddell defeated them all. In his own words, he and [Lillie] sneaked to Juneau to get a marriage license and got married secretly in Ketchikan while conservator proceedings were pending.
Mr. Riddell physically intimidated friends, family, lawyers and caregivers. He spirited [Lillie] away from the nursing home in Washington and kept her from authorities despite attempts to locate her by lawyers, a private investigator and court orders that he disclose her whereabouts.
Mr. Riddell provided [Lillie] with the attention she craved and did small things for her that made her life better. He also abused her physically and cut her off from her friends and family so that she was utterly dependent upon him for all her needs.

But the court also recognized that this evidence did not necessarily render Lillie's marriage invalid. Noting that "[plersons suffering from dementia have fluctuating periods of more contact with reality and ability to cope," the court reviewed the evidence and found eredible testimony indicating that Lillie was competent and understood the consequences of her actions at the time that she married Riddell. In the court's view, then, the evidence did not convincingly prove Lillie's incompetence when she entered into the marriage: "this court cannot say that at the time she applied for the marriage license or when she actually participated in the ceremony she did not understand that she was getting married."

The superior court then proceeded to consider the legal significance of this finding; in so doing, it drew an important distinction between marriages that are void and those that are merely voidable. The court noted that, in AS 25.24.020, the Alaska Legislature defined a narrow class of marriages as legally void. That statute provides:

A marriage which is prohibited by law on account of consanguinity between the persons, or a subsequent marriage contracted by a person during the life of a former husband or wife which marriage has not been annulled or dissolved is void.

In contrast, the court pointed out, AS 25.24.0830 defines a broader class of marriages as voidable. Alaska Statute 25.24.030 provides:

A marriage may be declared void for any of the following causes existing at the time of the marriage:
(1) [under the age of legal consent];
(2) that either party was of unsound mind, unless that party, after coming to reason, freely cohabited with the other as husband and wife;
(3) that the consent of either party was obtained by fraud, unless that party after-wards, with full knowledge of the facts constituting the fraud, freely cohabited with the other as husband and wife;
(4) that the consent of either party was obtained by force, unless that party after-wards freely cohabited with the other as husband and wife;
(5) [failure to consummate].

The court further noted an early Oregon Supreme Court decision construing statutory provisions similar to Alaska's to allow a marriage to be declared void on the ground of incapacity only when the party lacked capacity to understand the transaction and its quality and consequences. And the court also emphasized the legislature's intent to allow a challenge under this broader class of voidable marriages to be brought only by a party to the marriage; AS 25.05.0831 unequivocally states the limitation:

If either party to a marriage is incapable of consenting to it at the time of the marriage for want of marriageable age of consent or sufficient understanding, or if the consent of either party is obtained by force or fraud, or if either party fails to consummate the marriage, the marriage is voidable but only at the suit of the party under the disability or upon whom the force or fraud is imposed.

Given this statute, the court concluded that "[the personal representative of the estate may not bring a suit regarding the voidability of a marriage on ... behalf of a party under a disability after that party has died."

After surveying cases from other jurisdictions, the superior court further determined that Alaska's statutory scheme reflects the majority view, which the court characterized as precluding the personal representative of a deceased spouse from challenging the validity of the spouse's marriage in the absence of either an express statutory provision allowing post-mortem challenges or gross fraud coupled with mental disability.

Applying this analysis, then, the superior court examined the circumstances of the case at issue here to determine whether they established that Lillie's marriage was either void under AS 25.24.020 (as opposed to being merely voidable under AS 25.24.0830) or involved the kind of gross fraud that led other jurisdictions to entertain post-mortem claims of invalidity by personal representatives. Because the court found the evidence as a whole to show that Lillie "understood the nature of her decision to marry Mr. Riddell," it declined to find the marriage void. The court went on to consider whether the case fell within the gross-fraud exception, which allows postmortem challenges to a valid marriage upon proof of gross fraud arising from "a combination of incompetence and egregious behavior." Though it noted that "Mr. Riddell did isolate [Lillie] from her family and friends and he may have married her to obtain her property," the court found that "his conduct did not rise to the level of gross fraud."

Accordingly, the superior court's order declared the marriage valid under AS 25.24.020's voidness criteria and precluded the estate from challenging it under AS 25.24.030's provisions describing voidable marriages; on this basis the court ruled that Riddell was Lillie's surviving spouse and was therefore eligible to claim a surviving spouse's statutory allowances and share.

But the court's first order merely declared that Riddell was eligible to claim his statutory allowances and share; it did not actually direct the estate to pay. Moreover, in declining to allow the estate to pursue its challenge to Lillie's marriage, the court cited and discussed Patey v. Peaslee, a case involving analogous facts in which the New Hampshire Supreme Court construed New Hampshire laws to preclude a personal representative's action to invalidate the deceased spouse's marriage but nonetheless allowed the personal representative to pursue an equitable claim seeking to establish a constructive trust in favor of the estate. This discussion of Patey in the superior court's first order planted the seeds for the order that followed.

After receiving the order declaring him eligible to receive the statutory marital allowances and share, Riddell filed a motion seeking to enforce that order. In response, the estate cross-moved to establish a constructive trust requiring Riddell's allowances and share to be paid to the estate. The superior court's second order granted the estate's cross-motion for a constructive trust. The court preliminarily observed that "[al constructive trust can be imposed in any case where a wrongful acquisition or detention of property to which another is entitled has occurred." Relying on its earlier order, the court reiterated its view that the record "leaves no question to any objective observer by clear and convincing evidence [that] Mr. Riddell ingratiated himself to [Lillie] for the purposes of obtaining her assets." And quoting Patey v. Peaslee, the court emphasized that its earlier order validating the marriage did not bar the estate's request for a constructive trust:

Although this court was unable to find the type of gross fraud needed to invalidate the marriage in its previous findings, that does not mean the "exercise of equity jurisdiction to impose a constructive trust with respect to property acquired from the decedent" is not warranted here.[]

After reviewing Patey's list of relevant criteria to consider in establishing a constructive trust, the court ruled that, "[ble-cause of the previous factual findings by the court, this court finds clear and convincing evidence that a constructive trust is warranted."

Riddell appeals.

III. DISCUSSION

A. Standard of Review

Although we generally defer to the trial court's broad discretion in balancing equitable principles, we use our independent judgment for legal issues and review de novo the court's interpretation of the law and its application of law to facts.

B. The Elements of a Constructive Trust

A constructive trust is an equitable remedy that becomes available upon clear and convincing proof that the party against whom the trust will be imposed has been unjustly enriched by receiving assets that rightly belong to the party in whose favor the trust will be created. We have said that a "constructive trust may be defined as a [device] used by chancery to compel one who unfairly holds a property interest to convey that interest to another to whom it justly belongs"; the trust arises to prevent the property holder from retaining property obtained "by reason of unjust, unconscionable, or unlawfal means." At a minimum, then, a constructive trust presupposes a transfer or holding of property in which the equitable beneficiary has a legal interest and unconscionable conduct by the property's holder in connection with its acquisition. *

In its order imposing a constructive trust, the superior court did not expressly consider whether Riddell's claim of allowances and share would result in a transfer of property belonging to the estate, or in which the estate had some legal interest. But the court's earlier order, which recognized the validity of Riddell's marriage to Lillie, weighs heavily against the presence of this necessary element.

The estate has not challenged the superior court's decision upholding the validity of the marriage despite Lillie's vulnerable mental condition and Riddell's fraudulent conduct, Because that decision turned on the trial court's evaluation of competing evidence and has not been disputed, we have no oecasion to question it here. A prospective heir generally has no recognized right to a living relative's property: we have held that a decedent's property interests devolve to heirs and devisees only upon death; and even then the heirs and devisees receive their interests only "subject to" the surviving spouse's statutory allowances and share, which similarly vest upon death and depend solely on the surviving spouse's marital status-that is, on the existence of a valid marriage.

By ruling that Riddell's marriage was valid and could not be set aside by the estate, the superior court effectively determined that Riddell's statutory entitlements to allowances and share had vested upon Lillie's death-before Lillie's estate ever received any cognizable interest or right to the portion of Lillie's estate that vested in Riddell. As a matter of law, then, the court's order validating the marriage ruled out the existence of an element necessary to support the court's subsequent decision to impose a constructive trust: a finding that the portion of Lillie's estate passing to Riddell "justly belong{ed]" to the estate.

Moreover, even if we assume that the estate had a cognizable interest in these funds, the superior court's declaration of a valid marriage would still rule out the second prerequisite for a constructive trust: a finding that Riddell obtained his statutory rights "by reason of unjust, unconscionable, or unlawful means." As already explained, Riddell acquired his statutory right to allotments and share solely because he married Lillie and survived her with their marriage intact. For reasons we address below in Part IIIC. of this opinion, we conclude that the superior court's order declaring the marriage to be valid despite Riddell's unconscionable premarital conduct precludes a finding that he acquired his statutory rights because of that conduct.

To be sure, as the superior court noted in its order validating the marriage, Riddell's fraudulent conduct persisted after he married Lillie; and as this court made clear in Riddell I, Riddell's continuing misconduct ultimately caused Lillie to execute a new will shortly before her death, naming Riddell as her sole beneficiary." But the superior court's earlier decision invalidating that will for lack of testamentary capacity-the decision we affirmed in Riddell I -directly addressed the harm caused by that ongoing misconduct. And neither the new will nor the unconscionable postmarital conduct that led to its execution had any effect on Riddell's right to the statutory benefits, since his right to those benefits depended solely on the validity of the marriage at its inception and on his survival of Lillie while still her spouse. Moreover, the estate did not assert, nor did the superior court find, that Riddell's misconduct during the marriage brought about or hastened Lillie's death, thereby causing his statutory benefits to vest sooner, or that it had any other causal connection to the timing or ultimate vesting of his right to the benefits.

The absence of a causal link between Rid-dell's unconscionable postmarital conduct and his right to receive the statutory benefits of marriage thus readily distinguishes his case from cases involving constructive trusts imposed against murderers--a category that the dissent mistakenly describes as being similar to the one before us. For as the dissent itself acknowledges, the constructive trust principle applies in those cases because "the title to property is acquired by murder as it is where the title is acquired by fraud, duress, or undue influence." Thus, in the present case, the causal link that justifies imposing a constructive trust in cases of spousal murder -and that certainly would have justified a constructive trust had it been found to exist here-is missing.

C. General Principles Governing Equitable Relief

A consideration of generally recognized principles governing equitable relief confirms the conclusion that a constructive trust was improper under these cireumstances. Two equitable principles are relevant here.

First, a court acting in equity ordinarily " 'cannot [intrude] in matters that are plain and fully covered by [al statute.'" Here, the Alaska Legislature has explicitly set out the property interests that vest upon death in a surviving spouse: homestead allowance, family allowance, and elective share; the legislature has specified the cireumstance that makes them vest: the existence of a "surviving spouse"-that is, a spouse who remained legally married at the time of death; and the legislature has attached no other prerequisite to the surviving spouse's statutory right. Similarly, by specifying the requirements for a valid marriage and limiting the ways in which a marriage may be invalidated, the legislature has fully covered the manner in which courts may determine whether a person qualifies as a "surviving spouse" for purposes of acquiring a vested statutory right to allowances and share. As the superior court recognized in upholding the validity of Riddell's marriage, the legislature deliberately limited the right to challenge the validity of a marriage that is voidable on grounds of disability, force, or fraud, extending that right exclusively to "the party under the disability or upon whom the force or fraud is imposed." Given the superior court's findings that Riddell's marriage was neither void ab initio because of Lillie's incapacity nor voidable after her death for gross fraud arising from "a combination of [Lillie's] incompetence and [Rid-dell's] egregious behavior," it follows that the statutory provisions governing a surviving spouse's automatic entitlements to allotments and share "fully covered" Riddell's situation.

A second, closely related equitable principle that controls these circumstances is that a court must not apply equity to do indirectly " 'what the law or its clearly defined policy forbids to be done directly. " Here, the superior court recognized that Lillie, despite her incapacity, understood the consequences of her actions when she accepted Riddell in marriage; the court further held that, even when combined with Lillie's incapacity, Riddell's fraudulent actions were not sufficiently gross to allow a post-mortem claim that the marriage was voidable. In consequence, as we have seen, the law required the court to declare Riddell eligible to receive the statutory benefits of a surviving spouse; indeed, the court's first order recognized that requirement. Yet by subsequently invoking the same factual findings of fraud and incompetence to trigger the equitable mechanism of a constructive trust, the court did indirectly what the law specifically forbade it to do directly: in nullifying Riddell's already vested right to allotments and share and awarding the money to the estate, the court effectively allowed the estate to avoid on equitable grounds the direct legal consequences of the court's earlier legal conclusion that Lillie had made "a competent decision about her marriage" and had "understood the nature of her decision to marry Mr. Riddell."

D. Other Considerations

We recognize that the superior court rested its decision in part on the New Hampshire Supreme Court's decision in Patey #. Peaslee and that Patey approved pursuit of an action for a constructive trust under closely similar cireamstances. Yet the majority's decision in Patey cites no useful authority for its unconventional application of the constructive trust remedy; as far as we can determine, the decision has never been followed under similar cireumstances since it was issued in 1957. And in our view, the dissent in Patey persuasively argues essentially the same point we make here: that the status and benefits of marriage are within the province of the legislature and that a court must avoid using its equitable powers to invalidate rights that flow from surviving a legally valid marriage when the legislature so clearly directs those rights. We thus decline to follow Patey.

We further recognize that Alaska's Uniform Probate Code generally gives trial courts broad latitude to supplement statutory provisions with equitable principles: AS 13.06.015 specifies that "[ulnless displaced by the particular provisions of [the code], the principles of law and equity supplement those provisions." Yet nothing in this opinion discourages the use of these broad supplemental powers; we merely hold that the factual cireumstances the trial court found here did not leave room for equitable supplementation: the "particular provisions" of statutory law governing void and voidable marriages and accrual of allowances and share fully covered this situation and affirmatively "displaced" the equitable remedy of constructive trust. We apply no broad limitations on the use of equitable measures in probate cases; instead, we merely hold that the selected measure of a constructive trust did not apply here.

The facts in this case obviously make it tempting to deny Riddell any benefit from his fraudulent conduct; this makes the recourse of a constructive trust seem alluringly sensible. But allowing offensive factual circumstances to dictate an unauthorized legal remedy can have a pernicious effect in the long-run by upsetting the complex and delicate balance that our system of government strives to maintain between the legislature's lawmaking powers and the courts' traditional equitable powers. The superior court here carefully examined all relevant evidence and declared Riddell to be the surviving spouse of a valid marriage. The legislature has spelled out the rights that Riddell acquires by virtue of his status. To dilute these plain and complete legislative directives with a legally inappropriate equitable remedy would impermissibly expand the court's equitable powers at the expense of established positive law.

We must therefore vacate the order imposing a constructive trust and remand this case to allow the superior court to determine the amount of Riddell's allowances and share. In remanding the case, however, we note that the applicable statutes specify the amount of both the homestead allowance and elective share but leave the amount of the family allowance in the court's discretion. To this extent, the statutes allow the superior court to factor equitable considerations into its decision on remand.

IV. CONCLUSION

We REVERSE the order imposing a constructive trust and REMAND for further proceedings to establish the amount of the statutory allowances and share.

CARPENETI, Justice,

dissenting.

Because the finding that a marriage is valid is not inconsistent with the imposition of a constructive trust, I dissent from today's Opinion. A comparison of the legal requirements of a valid marriage with the legal requirements of a constructive trust shows why there is no inconsistency in the superior court's decision and why it should be affirmed. Moreover, AS 18.06.015 authorizes the superior court's imposition of a constructive trust; the Opinion errs in concluding that the equitable remedy was "displaced" by the statutes governing marriages and accrual of allowance and share. Finally, other states have imposed constructive trusts in situations similar to the one before the court, and a leading treatise specifically approves the procedure.

Legal requirements for valid marriage and constructive trust

There are only limited cireumstances in which a marriage may be declared void. The legislature has provided that a marriage may be declared void only if, at the time of the marriage, a party was under the age of consent, a party was of unsound mind, force or fraud was used in obtaining consent, or there was failure to consummate the marriage. Moreover, in order for the marriage to be invalidated, the disability or undue influence must exist at the moment that a person enters into the marriage. These requirements narrowly confine the situations in which one's consent to marry is not considered valid.

In contrast to the well-defined, limited circumstances in which a marriage may be declared void, a constructive trust may be imposed in a broad range of circumstances. In imposing a constructive trust, there is no requirement that the unjust or unconscionable conduct occur at the moment that title transfers or that a statutory right attaches, only that the defendant holds the property in cireumstances that are unjust. As we said in McKnight v. Rice, Hoppner, Brown & Brunner, quoting from a leading treatise, a constructive trust is "a [device] used by chancery to compel one who unfairly holds a property interest to convey that interest to another to whom it justly belongs."

The Opinion quotes McKmight to this ef-fect, but it mistakenly assigns dispositive significance to the superior court's finding of a valid marriage, holding that this finding "ruled out the existence of an element necessary to ... a constructive trust: a finding that the portion of Lillie's estate passing to Riddell "justly to the estate." The finding of a valid marriage, and the subsequent passing of a portion of Lillie's estate to Riddell through allowances and shares, merely sets the stage for the determination of whether there are grounds for application of the constructive trust doctrine: "It is then [after the property passes under the will or by intestacy] that the equitable principle as to unjust enrichment becomes applicable."

The Opinion's discussion of "the second prerequisite" for a constructive trust is even farther off the mark. Although it quotes McKnight to the effect that a finding that one obtained property "by reason of unjust, unconscionable, or unlawful means" will justify imposition of a constructive trust, it reads "unjust" and "unconscionable" completely out of the quotation and focuses only on "unlawful." That is error; our use of "or" in McKnight makes clear that Riddell's use of either "unjust" means or "unconscionable" means to acquire an interest gives the court a sufficient basis to impose a constructive trust. The superior court in the present case did exactly that, using a constructive trust as an equitable remedy to take Riddell's unjust, ly acquired interest in the estate and vest it in the rightful beneficiaries of the estate.

Because Riddell's marriage was not unlawful-in the Opinion's phrase, because it was "valid despite Riddell's unconscionable premarital conduct" -the Opinion ignores that his conduct in procuring the marriage was undoubtedly "unjust" and, indeed, "unconscionable."

Thus it is clear that, despite the Opinion's claim, there is no "absence of a causal link between Riddell's unconscionable conduct and his right to receive the statutory benefits of marriage." Quite to the contrary, the conduct that the Opinion twice describes as "unconscionable" -what the superior court described, with the apparent agreement of the Opinion, as "fraudulent conduct toward Lillie," "bullying ... and physical{[ ] intimidat{ion of] friends [and] family," finding that Riddell "abused [Lillie] physically"-while it did not invalidate the marriage, is precisely the type of conduct that supports the superior court's finding that Riddell's "legal title to property has been obtained through actual fraud, concealment, by taking advantage, or, under cireum-stances rendering it unconscilonable] for" him to retain the interest. Indeed, the Opinion notes that the superior court found that Riddell had induced Lillie to marry him " 'for the purpose[ ] of obtaining her assets' and that his wife had suffered from dementia for the majority of their relationship." As the superior court carefully explained, it upheld the validity of the marriage despite those findings and although "even immediately afterward, [Lillie] didn't remember that she had married Mr. Riddell," because the superior court "cannot say that at the time she applied for the marriage license or when she actually participated in the ceremony she did not understand that she was getting married." In other words, the superior court made no finding that Riddell's unconscionable conduct did not lead to the marriage. To the contrary, it effectively found that Riddell had fraudulently induced the marriage. The superior court found only that, at the moment she applied for the license and at the moment she was married, it could not say that she was unaware of what she was doing.

Alaska Statute 18.06.015

The legislature has made it clear that, in deciding claims arising under the probate code, a court may exercise its equitable powers unless explicitly forbidden to do so: Alaska Statute 13.06.015 provides that "fulnless displaced by the particular provisions of AS 18.06 AS 18.36, the principles of law and equity supplement those provisions." No part of any of the "particular provisions" of the probate code dealing with allowances and share displace the principle of equity; they merely establish Alaska's positive statutory law on those subjects. Without citation to authority, the Opinion mistakenly looks outside of the probate code, to provisions of the statutes dealing with divorce and dissolution, to reach its conclusion that AS 13.06.015 does not apply: "the 'particular provisions' of statutory law governing void and voidable marriages and accrual of allowances and share fully covered this situation and affirmatively 'displaced' the equitable remedy of constructive trust." But the test under AS 18.06.015 is not whether Alaska law "fully covered" the situation. It is whether any particular provisions of the probate code should be read as displacing the superior court's authority to invoke the equitable doctrine of constructive trust. Given that AS 18.06.015 so unambiguously states that principles of equity apply "[ulnless displaced by particular provisions of AS 13.06-AS 18.86," today's holding that a finding of a - valid marriage is inconsistent with the equitable doctrine of constructive trust adopts an unduly restrictive view of our law.

In support of its conclusion, the Opinion cites Pacific Scene, Inc. v. Penasquitos, Inc. for the proposition that a court acting in equity generally "cannot [intrude] in matters that are plain and fully covered by [al statute." While the proposition is unexceptionable, Pacific Scene lends no support to the Opinion's conclusion, for that case dealt with a statutory scheme that is far different from the Alaska probate code see-tions that are before us in this case. In Pacific Scene, the California legislature had enacted a "comprehensive statutory revision" that "comprise[d] a broad and detailed scheme regulating virtually every aspect of corporate dissolution." The court described such legislation as covering the situation where "course of conduct, parties, things affected, limitations and exceptions are minutely described, indicat{ing] a legislative intent that the statute should totally supersede and replace the common law dealing with the subject matter." That is a completely different situation than the one before us now.

The statutes before us now are garden-variety probate laws that establish allowances and shares, and in no way suggest that they are intended to preclude the court's use of general principles of equity. They do not specifically "displace" the equitable power of the superior court to give an unjustly-inherited share back to the estate through constructive trust.

Nor does the superior court's decision "do indirectly what the law or its clearly defined policy forbids to be done directly," as the Opinion claims. The legislature did not forbid the superior court from imposing a constructive trust after allowing Riddell to inherit from the estate. The legislature did require that the superior court recognize the validity of the marriage, and the court did so. The superior court did not invalidate the marriage or ignore the statutory mandate to give Riddell his share of the estate. Riddell was allowed to inherit his statutorily-prescribed share. After fulfilling the statutory directive, the superior court used the equitable powers specifically envisioned by AS 13.06.015 to carry out the legislature's statutory scheme, creating a constructive trust to take back Riddell's unjustly-acquired gains.

The superior court complied with all applicable statutes, and did not do indirectly what the law forbade it to do directly. The Opinion's argument-that onee the law of voidable and void marriages is applied, Riddell's allowances and share are established and a constructive trust may not be imposed-is wrong, as is shown by this discussion from Scott on Trusts:

Where the Statute of Wills and the statute of distributions make no provision as to the effect of murder of the decedent by the legatee or heir, the property passes under the will or by intestacy to him. It is then that the equitable principle as to unjust enrichment becomes applicable. That principle is as applicable where the title to property is acquired by murder as it is where the title is acquired by fraud, duress, or undue influence. By imposing a constructive trust upon the murderer, the court is not making an exception to the provisions of the statutes but is merely compelling the murderer to surrender the profits of his erime and thus preventing unjust enrichment.

Thus, "where the title is acquired by fraud, duress, or undue influence," a constructive trust is imposed on the property after it has already devolved to the spouse. The trust is then imposed on the property for the benefit of the estate. Scour on Trusts makes clear that this is proper.

The Opinion's approach would allow one spouse, who murders the other, to retain his or her share of the estate in the absence of positive legislation to the contrary. Alaska lacked such legislation until 1996, when AS 13.12.8038 was enacted. Under the majority's rigid interpretation of the inheritance and marriage statutes, Alaska courts before that time would have been forced to uphold the murderer's elective share, as the " (particular provisions' of statutory law governing void and voidable marriages and accrual of allowances and share" cover that situation to the same extent they cover this case. Yet courts in several states have found that equity demands imposing a constructive trust on the murderer's share, even in the absence of a statute like AS 13.12.803. Likewise, the Alaska legislature meant for the inheritance and marriage statutes to be read in conjunction with AS 18.06.015, allowing the possibility for courts to impose a constructive trust to prevent injustice in limited cireumstances. As Scorr on Trusts definitively states, the equitable principle of unjust enrichment, which allows the imposition of a constructive trust, "is as applicable where the title to property is acquired by murder as it is where the title is acquired by fraud, duress, or undue influence."

Judge Weeks was well within the law in imposing a constructive trust to reclaim the property that he found-and that this court today affirms on "compelling evidence" -was gained by Riddell's "fraudulent conduct toward Lillie," "bullying family and friends, "* "physicall ] intimidatfion - of] friends, family, lawyers and caregivers," and because he "abused [Lillie] physically." This is a case in which equity fairly demands that a constructive trust be imposed, and Judge Weeks was correct in imposing one.

For all of the above reasons, I would affirm the decision of the superior court imposing a constructive trust on Riddell's statutory homestead allowance, family allowance, and elective share. I therefore respectfully dissent.

      . For additional background concerning Riddell and Lillie and the administration of this estate, refer to Riddell v. Edwards, 32 P.3d 4 (Alaska 2001) ("Riddell I") and Riddell v. Edwards, Mem. Op. & J. No. 1050 (Alaska, October 10, 2001) ("Riddell II").

      . Riddell I, 32 P.3d at 5, 10.

      . Riddell II, Mem. Op. & J. No. 1050 at 1.

      . The superior court cited Coleman v. Coleman, 85 Or. 99, 166 P. 47 (1917).

      . Patey v. Peaslee, 99 N.H. 335, 111 A.2d 194, 198 (1955) (barring heirs from annulling marriage); Patey v. Peaslee, 101 N.H. 26, 131 A.2d 433, 435 (1957) (recognizing constructive trust as appropriate equitable remedy).

      . Internal footnote omitted citing Patey, 111 A.2d at 198.

      . See, e.g., Leis v. Hustad, 22 P.3d 885, 887 (Alaska 2001); Hamilton v. Blackman, 915 P.2d 1210, 1213 (Alaska 1996); Leisnoi, Inc. v. Stratman, 835 P.2d 1202, 1207 (Alaska 1992); Wood v. Collins, 812 P.2d 951, 955 n. 4 (Alaska 1991).

      . See, e.g., McKnight v. Rice, Hoppner, Brown & Brunner, 678 P.2d 1330, 1334-35 (Alaska 1984) (elements); City of Lakewood v. Pierce County, 144 Wash.2d 118, 30 P.3d 446, 450 (2001) (elements and standard of proof).

      . McKnight, 678 P.2d at 1335 (quoting Groror Grrason Bocert & Grorer Tayror Boorrt, THs Law or Trusts anp Trustees § 471, at 3 (rev.2d ed.1978)).

      . See Sheehan v. Estate of Gamberg, 677 P.2d 254, 256-57 (Alaska 1984).

      . In this regard, AS 13.16.005 expressly provides:
      The power of a person to leave property by will, and the rights of creditors, devisees, and heirs to the property are subject to the restrictions and limitations contained in AS 13.06-AS 13.36 to facilitate the prompt settlement of estates. Upon the death of a person, that person's real and personal property devolves to the persons to whom it is devised by the last will or to those indicated as substitutes for them in cases involving lapse, renunciation, or other circumstances affecting the devolution of testate estates, or in the absence of testamentary disposition, to the heirs, or to those indicated as substitutes for them in cases involving renunciation or other circumstances affecting devolution of intestate estates, subject to homestead allowance, exempt property and family allowance, to rights of creditors, elective share of the surviving spouse, and to administration.
      (Emphasis added.)

      . Alaska's statutory rights to allowances and share are set forth in AS 13.12.402, AS 13.12.404, and AS 13.12.202. AS 13.12. 402 states: "A decedent's surviving spouse is entitled to a homestead allowance of $27,000.... The homestead allowance is exempt from and has priority over all claims against the estate. Homestead allowance is in addition to a share passing to the surviving spouse ... by way of elective share."
      AS 13.12.404(a) provides:
      In addition to the right to homestead allowance ..., the decedent's surviving spouse and minor children ... are entitled to a reasonable allowance in money out of the estate for their maintenance during the period of administration.... The family allowance is exempt from and has priority over all claims except the homestead allowance.
      AS 13.12.202(a) provides: "The surviving spouse of a decedent who dies domiciled in this state has a right of election ... to take an elective share amount equal to one-third of the augmented estate."

      . McKnight, 678 P.2d at 1335 (quoting Bogert, supra note 9, § 471, at 3).

      . Id. (quoting Bogert, supra note 9, § 471, at 3).

      . Riddell I, 32 P.3d 4, 6 (Alaska 2001).

      . Id. at 9-10.

      . Dissent at 856, 859-860.

      . Dissent at $59 (quoting 5 Austin Wakeman Scor & Wiuiam Franxum Fratcuer THs Law or Trusts § 492, at 440 (4th ed.1989)) (emphasis in dissent altered).

      . See 5 Scott & FratcuEr, supra note 18, § 492, at 440 ("[A] constructive trust is imposed upon one who acquires property through his own wrong.") (emphasis added).

      . Pacific Scene, Inc. v. Penasquitos, Inc., 46 Cal.3d 407, 250 Cal.Rptr. 651, 758 P2d 1182, 1186 (1988) (quoting Marsh v. Edelstein, 9 Cal.App.3d 132, 88 Cal.Rptr. 26, 31 (1970)); accord I.N.S. v. Pangilinan, 486 U.S. 875, 883, 108 S.Ct. 2210, 100 L.Ed.2d 882 (1988) ("[I]t is well established that '[clourts of equity can no more disregard statutory and constitutional requirements and provisions than can courts of law.' ") (quoting Hedges v. Dixon County, 150 U.S. 182, 192, 14 S.Ct. 71, 37 L.Ed. 1044 (1893)).

      . See supra note 12. As already indicated, these property interests vest upon death; the property interests of other heirs and devisees are necessarily subordinate because they devolve "subject to" the surviving spouse's statutory interest.

      . See AS 25.24.010 (only spouse may maintain action to have marriage declared void); AS 25.24.020 (definition of void marriages); AS 25.24.030 (definition of voidable marriages); AS 25.05.031 (marriage is voidable only by spouse).

      . AS 25.05.031.

      . Pacific Scene, Inc., 250 Cal.Rptr. 651, 758 P.2d at 1186.

      . Id. (quoting Marsh, 88 Cal.Rptr. at 31).

      . 101 N.H. 26, 131 A.2d 433, 435 (1957).

      . See id. at 437-38 (Blandin, J., dissenting); see also Ch. 58, pmbl., SLA 1963 (stating that the legislature's purpose was "[t]o provide a comprehensive marriage code"); Batey v. Batey, 933 P.2d 551, 554 (Alaska 1997) (declining to use common law definition that countered express legislative intent).

      . Citing AS 13.06.015, the dissent questions whether the statutory provisions governing void and voidable marriages can displace the court's equitable power in a probate case: because those definitions are located outside the probate code and therefore do not qualify as "particular provisions" of the probate code, the dissent reasons, AS 13.06.015 does not allow them to displace the supplemental powers granted in that provision. Dissent at 23-25. But by providing that the right to marital allowances and share turn on the existence of a "surviving spouse," see supra note 12, the probate code necessarily incorporates the marriage code's definitional provisions that give the term meaning-if not as "particular provisions" of the probate code that can displace the court's supplemental equity powers, then at least as "principles of law'" directly applicable under AS 13.06.015's express terms.

      . The dissent attempts to portray this conclusion as "holding that a finding of a valid marriage is inconsistent with the equitable doctrine of constructive trust." - Dissent at 24. But our decision is considerably narrower, holding that the imposition of a constructive trust on a surviving spouse's statutory benefits is impermissible only when, as here, the surviving spouse's unconscionable conduct neither caused an invalid marriage nor otherwise caused or helped to cause the statutory benefits arising from that marriage to vest.

      . Our decision renders Riddell's remaining arguments moot, making it unnecessary to consider them.

      . AS 13.12.402 ($27,000); AS 13.12.202(a)-(b) (one-third of the augmented estate; supplemental share under certain circumstances).

      . AS 13.12.404(a) ("a reasonable allowance").

      . AS 25.24.030.

      . Id. After quoting the superior court to the effect that "[plersons suffering from dementia have fluctuating periods of more contact with reality," the Opinion notes that "Lillie was competent and understood the consequences of her actions at the time that she married Riddell.... [The evidence did not convincingly prove Lillie's incompetence when she entered into the marriage." Opinion at 850 (emphasis added).

      . McKnight v. Rice, Hoppner, Brown & Brunner, 678 P.2d 1330, 1335 (Alaska 1984) (quoting G. Bogret, Trusts anp Trustees § 471, at 3 (rev.2d ed.1978)).

      . Opinion at 853.

      . Id.

      . . Austin Wakeman Scott & FrankuiN FratcHEr, Tus Law or Trusts § 492, at 440 (4th ed.1989).

      . Id. (emphasis added) (quoting Bocert, supra note 3, § 471 at 3).

      . The Opinion strains to find a requirement that the equitable beneficiary have a "legal interest" in the property, Opinion at 852, and then concludes that because title vested in Riddell upon Lillie's death, the superior court's "order validating the marriage ruled out the existence of an element necessary to support the court's subsequent decision to impose a constructive trust: a finding that the portion of Lillie's estate passing to Riddell justly belong[ed]' to the estate." Opinion at 853. But the constructive trust doctrine, a creature of equity, contains no requirement of a "legal interest" as the Opinion narrowly defines it. Rather, the constructive trust doctrine looks to whether there is an equitable interest in the property: "A constructive trust is imposed upon a person in order to prevent his unjust enrichment. To prevent such unjust enrichment an equitable duty to convey the property to another is imposed upon him." Restate ment or Restrrurion § 160 cmt. c (1937).

      . Opinion at 853 (emphasis on "unconscionable" added; emphasis on "despite" deleted).

      . - Id. at 854.

      . Id. at 853-854. While conceding that Rid-dell's conduct was unconscionable both before the marriage ("'Riddell's unconscionable premarital conduct," Opinion at 854) and after the marriage ("Riddell's unconscionable postmarital conduct," Opinion at 854), the Opinion seeks to avoid the unescapable conclusion that there is therefore a clear causal link between Riddell's unconscionable conduct and his receipt of the statutory benefits of marriage. The Opinion seeks to distinguish this case from cases imposing constructive trusts against murderers by pointing to the "absence of a causal link between. Riddell's unconscionable postmarital conduct and his right to receive the statutory benefits of marriage." (Opinion at 854, emphasis added.) But in conceding that Riddell's conduct was unconscionable both before and after the marriage, the Opinion concedes that the causal link it denies actually does exist.

      . The Opinion refers to the "compelling evidence" of Riddell's misconduct. Opinion at 850.

      . Opinion at 849.

      . The Opinion refers to the provisions of law governing void and voidable marriages, which are found in the statutes dealing with divorce and dissolution, AS 25.24.020-.030. Opinion at 854. - Besides being inapplicable to AS 13.06.015, which refers specifically to AS 13.06-AS 13.36, the statutes dealing with divorce and dissolution make no mention of specifically displacing any principles of equity, much less the doctrine of constructive trust.

      . Opinion at 855.

      . 46 Cal.3d 407, 250 Cal.Rptr. 651, 758 P.2d 1182 (1988).

      . Opinion at 854 [bracketed material is as inserted in the Opinion].

      . With the possible exception that the California court said "positive" statute, 250 Cal.Rptr. 651, 758 P.2d at 1186, not "[a]" statute, Opinion at 854, suggesting that a positive-that is, a clear and strong-declaration of law limiting the court's equitable powers is required before such powers may be limited.

      . 250 Cal.Rptr. 651, 758 P.2d at 1184.

      . Id. 250 Cal.Rptr. 651, 758 P.2d at 1183 (citation and internal quotations omitted) (emphasis added).

      . Opinion at 855 (citations and internal quotations omitted).

      22. Austin Wakeman Scott & Wirtiam FRANKLIN Fratcuer, Tue Law or Trusts § 492, at 440 (4th ed.1989) (emphasis added).

      . The Opinion attempts to distinguish the present case from the case of a murdering spouse by pointing to the "absence of a causal link between. Riddell's unconscionable postmarital conduct and his right to receive the statutory benefits of marriage." Opinion at 854. As shown above, there is a causal link in this case between Rid-dell's unconscionable conduct-which occurred both before and after the marriage-and his receipt of benefits: Riddell fraudulently induced Lillie to marry him in order to obtain her assets.

      . AS 13.12.803(a) provides, in relevant part:
      An individual who feloniously kills the decedent forfeits all benefits ... with respect to the decedent's estate, including an intestate share, an elective share, an omitted spouse's or child's share, a homestead allowance, exempt property, and a family allowance.

      . Ch. 75, § 3, SLA 1996.

      . Opinion at 855-856.

      . See, e.g., In re Estate of Danforth, 705 S.W.2d 609, 611-12 (Mo.App.1986) (holding that wife not allowed to profit by inheriting from husband's estate when she committed fraud in procuring marriage and conspiracy in murdering husband); Garwols v. Bankers' Trust Co., 251 Mich. 420, 232 N.W. 239, 242 (1930) (using common law to supplement statutory scheme to prevent son from inheriting from estate of his mother whom he murdered).

      . Scott & Fratcher, supra note 6, § 492, at 440.

      . Opinion at 850.

      . Id.

      . Id.

      . Id.

      . Id.


source: Caselaw Access Project

author: Justice HOBBS

license: Public Domain

text:
    In the Matter of the Application for Water Rights of Peter VOUGHT and the Stucker Mesa Domestic Pipeline Company in Delta Colorado. Peter Vought, Applicant-Opposer-Appellant, v. Stucker Mesa Domestic Pipeline Company, Applicant-Opposer-Appellee, and Division Engineer, Water Division 4, Appellee pursuant to C.A.R. 1(e).
    No. 02SA293.
    Supreme Court of Colorado, En Banc.
    June 16, 2003.

      Patrick, Miller & Kropf, P.C., Kevin L. Patrick, Sara M. Dunn, Aspen, Colorado, Attorneys for Applicant-Opposer-Appellant.
    Briscoe & Stanway, P.C., S. Gregg Stan-way, Hotchkiss, Colorado, Attorneys for Applicant-Opposer-Appellee.
    Division Engineer, Water Division 4, Filed Notice of Non-participation.
   Justice HOBBS

delivered the Opinion of the Court.

This case involves a dispute over appropriation dates for the right to use water from springs located on Peter Vought's land. Vought appeals a decision by the District Court for Water Division No. 4, granting conditional water rights to both Vought and Stucker Mesa Domestic Pipeline Company (Stucker Mesa) from the same water supply source-springs arising on Vought's property-with an earlier appropriation date for Stucker Mesa's domestic use over Vought's domestic use.

We affirm the water court's holding that Vought's conditional water rights for domes-tie use have an appropriation date of October 23, 2000. We agree with the water court that Stucker Mesa has an earlier appropria- , tion date for domestic use, but it is October 6, 2000, not September 27, 2000; hence, we reverse the water court's ruling in part. We also affirm (1) the water court's ruling that Stucker Mesa satisfied the can and will test, and (2) the water court's refusal to dismiss Stucker Mesa's water rights applications.

I.

The water sources claimed for appropriation by both parties in this case are springs located on Vought's land near Paonia in Delta County. The springs are tributary to the North Fork of the Gunnison River. Small amounts of water for domestic use are involved. The principal issue is who has the earlier appropriation date. Stucker Mesa seeks a decree for conditional water rights in the amount of 0.01 cubic feet per second (ef.s.) from Spring No. 1 and Spring No. 2 Vought seeks a decree for conditional water rights in the amount of 0.01 ef.s. from each of the Springs Nos. 1, 2, and 8.

Vought's application claims that he used the spring water for his livestock since 1970, and he intended since 1970 to build a house on the land and use spring water for a domestic supply. There is no dispute about Vought's absolute water right for the livestock use. The issue is who has the earlier appropriation date for domestic use.

Stucker Mesa is a non-profit domestic water supply company serving twenty-one taps in the area. The company's current water supply is from two other springs not involved in these applications. Stucker Mesa does not have enough water to fully meet the demand of its customers. Steve Wolcott, President of Stucker Mesa, and Vought are both tap owners and shareholders in Stucker Mesa.

In 1994, a fire swept through the area, burning the hillside where the springs are located and revealing green areas not previously visible from a distance. Stucker Mesa owns an easement over Vought's property for a pipeline, which runs down the hillside several hundred feet from the nearest spring. Sighting the green areas and investigating for a possible pipeline leak and a possible additional water source that would benefit the Stucker Mesa shareholders, including Vought, employees of Stucker Mesa crossed onto Vought's property to the springs, which were in plain view from and relatively close to the easement.

Vought is an absentee landowner. He has used Spring No. 1 for livestock watering since 1970. - His ranch foreman from 1995 to December 2001 was Robert Arterburn. Stucker Mesa supplies domestic water to two buildings on the property. Vought testified that he intended since 1970 to build a house on the property and use water from the springs for a domestic supply to it.

Arterburn testified to four actions he took on the property in support of Vought's conditional water rights for domestic use. On October 22, 1996, he cleared debris off of a road leading toward Spring No. 1. On January 27, 1999, he phoned Merritt Dennison, an employee at the Colorado Division of Water Resources, to discuss a possible water rights application. Sometime in October 1999, he drove wooden stakes into each of the three springs with the date "1999 Oct" written on them. In the fall of 2000, following Stucker Mesa's applications for conditional water rights, he dug holes around Spring No. 1 to improve flow and installed pipes leading to a barrel, so he could measure and increase water flow for livestock and domestic use.

Stucker Mesa presented testimony from several individuals regarding steps it took and contradicting Arterburn's testimony. Both parties agree that Stucker Mesa employees entered Vought's property on two occasions prior to filing for the Stucker Mesa conditional decree, and once afterwards. On these occasions, they crossed from Stucker Mesa's easement on Vought's property and walked to the springs, causing no property damage.

During the first entry, on September 26, 2000, Steve Wolcott, Stucker Mesa's President, Phillip Johnson, Stucker Mesa's Vice President, and William Pitt, a private excavating contractor working for Stucker Mesa, walked along Stucker Mesa's easement, inside of Vought's property, marking the location of Stucker Mesa's pipeline. Seeing the green spots on Vought's property, Woleott thought the pipeline might be leaking. Upon determining that the pipeline was probably not leaking, Wolcott, Johnson, and Pitt departed from the easement to investigate an apparent water source that might benefit Stucker Mesa's - shareholders, including Vought. Wolcott testified that Spring No. 1, the largest of the three springs, had a little trickle of water running down the hillside from it; the only standing water was contained in elk footprints. The three men testified that they saw no sign of development of the springs-no stakes, holes, or barrels.

The next day, September 27, 2000, Woleott again entered onto the Stucker Mesa easement on Vought's property and departed the easement to inspect the springs, this time with his son, Eli Wolcott, who is a geographic information systems (GIS) consultant. Eli used a global positioning system (GPS) device to fix the location of the springs. Wol-cott testified that he tasted the water for potability.

After Wolcott filed for conditional water rights, he returned a third time to take pictures and water samples of the springs, on this occasion with his wife, Linda Lindsay. The pictures were later lost. Lindsay testified that she saw no sign of development, and that "[iJt didn't look like anybody had been there for ages." After Lindsay and Wolcott had been at the spring a few minutes, Arter-burn joined them and began a lengthy discussion about Stucker Mesa's water rights applications. On the previous trips, Wolcott and his companions had not encountered either Vought or Arterburn.

Although Wolcott filed the Stucker Mesa applications in his own name on October 6, 2000, he later filed an amendment substituting Stucker Mesa as the applicant, because he had been acting on the water company's behalf. The Stucker Mesa applications sought conditional rights for 0.01 cfs. from Spring No. 1, in case number OOCW157, and 0.01 ce.f.s. from Spring No. 2, in case number 0OCW158-claiming a September 27, 2000 appropriation date for each spring, the date of the second entry onto the Stucker Mesa easement and Vought's property to establish the location of the springs through the GPS device. On November 28, 2000, Vought filed statements of opposition to both applications, asserting his livestock use of the springs since 1970 and claiming that Stucker Mesa employees had trespassed on his land before filing the Stucker Mesa applications.

On October 28, 2000, Vought filed his own application, in case OOCW168, claiming (1) an absolute water right from Spring No. 1 for stock water with an appropriation date of May 1, 1970, and (2) conditional water rights from Spring No. 1 for domestic and irrigation uses with an appropriation date of May 1, 1970 and Springs Nos. 2 and 3 for stock, domestic, and irrigation uses, for a total of 0.05 cfs. of water. - Originally, Vought claimed an appropriation date of October 18, 2000 for the conditional water rights in Springs Nos. 2 and 3, but he later amended his application to claim an appropriation date of October 22, 1996-the date on which Ar-terburn improved the road leading to Spring No. 1.

The Division 4 Water Referee inspected the springs and concluded that water was available for the Vought and Stucker Mesa applications. The - referee - recognized Vought's absolute water rights for 0.01 cf.s. from each of Springs Nos. 1, 2, and 8 for stock water with an appropriation date of May 1, 1970. The referee recognized Vought's conditional rights for 0.01 e.f.s. from each of Springs Nos. 1, 2, and 8, with an appropriation date of October 283, 2000 for domestic use.

The referee recognized Stucker Mesa's conditional water rights for 0.01 ef.s. of water for domestic use from each of Springs Nos. 1 and 2, with an appropriation date of September 27, 2000.

Vought protested the referee's ruling, asserting that Stucker Mesa's applications were void, or voidable, because of trespass and Stucker Mesa did not prove that it can and will place the water to beneficial use. The water court denied Vought's motion for summary judgment to dismiss Stucker Mesa's water rights applications based on trespass. The water court conducted a one-day trial and entered an order and decree resolving all three cases. The court recognized Vought's absolute right for a total of 0.03 ef.s. of stock water, 0.01 ef.s. from each spring; Stucker Mesa does not appeal the absolute decree for the stock water rights. The water judge decreed to Vought conditional water rights for 0.01 c.f.s. from each of Springs Nos. 1, 2 and 3 for a total of 0.08 cf.s. for domestic use, with an appropriation date of October 28, 2000.

The water judge decreed to Stucker Mesa conditional domestic water rights for 0.01 cf.s. from each of Springs Nos. 1 and 2, with an appropriation date of September 27, 2000.

Vought claims on appeal that the water court incorrectly applied the first step test to determine the appropriation dates for his and for Stucker Mesa's conditional water rights. He contends that his date of appropriation for the conditional water rights should have been no later than October 1999 and Stucker Mesa's appropriation date could be no earlier than October 6, 2000, the date of its applications. Vought argues that the Stucker Mesa applications are void, or voidable, for trespass and Stucker Mesa did not prove it can and will appropriate the water with diligence and within a reasonable time, because Stuck-er Mesa does not currently have legal access to the springs.

IL.

We affirm the water court's holding that Vought's conditional water rights for domestic use have an appropriation date of October 23, 2000. We agree with the water court that Stucker Mesa has an earlier appropriation date for domestic use, but it is October 6, 2000, not September 27, 2000; hence, we reverse the water court's ruling in part. We also affirm (1) the water court's ruling that Stucker Mesa satisfied the can and will test, and (2) the water court's refusal to dismiss Stucker Mesa's water rights applications.

A.

Requirements for Obtaining a Conditional Water Right Decree

Based on the doctrine of prior appropriation, water courts set priority dates for Colorado water rights that have their source of supply in surface water or tributary groundwater. See Aspen Wilderness Workshop, Inc. v. Hines Highlands Ltd. P'ship, 929 P.2d 718, 724 (Colo.1996). A water right arises only by actually placing the water to beneficial use, but a conditional water right decree allows the appropriation to relate back to the time when the appropriator completed the "first step" towards an appropriation, if the conditional appropriation is diligently pursued to completion. Fruitland Irrigation Co. v. Kruemling, 62 Colo. 160, 165, 162 P. 161, 163 (1916) § 37-92-805(9)(b), 10 C.R.S. (2002).

To decree a conditional water right, the water court must find and conclude that the applicant completed the first step for an appropriation and that the applicant can and will complete the appropriation diligently and within a reasonable time. § 37-92-305(9)(b), 10 C.R.S. (2002); City of Thornton v. City of Fort Collins, 830 P.2d 915, 924-25 (Colo.1992) (Thornton ). A conditional water right is "a right to perfect a water right with a certain priority upon the completion with reasonable diligence of the appropriation upon which such water right is to be based." § 87-92-103(6), 10 C.R.S. (2002).

A conditional water right holds the place of the appropriator in priority, so long as the appropriation is diligently pursued and perfected by application of the water to beneficial use. Mount Emmons Mining Co. v. Crested Butte, 40 P.3d 1255, 1258 (Colo.2002). The priority date of the water right is a function of the appropriation date and the adjudication date. The adjudication date is the year in which the application is filed; the appropriation date is the date on which the appropriator completed the first step towards the appropriation. Dallas Creek Water Co. v. Huey, 933 P.2d 27, 35 (Colo.1997).

1.

First Step Test

The first step towards an appropriation is complete when overt acts coalesce to openly demonstrate the applicant's intent to appropriate the water for a beneficial use; whether the intent or the acts occurred first makes no difference. Thornton, 830 P.2d at 924-25; Elk-Rifle Water Co. v. Templeton, 173 Colo. 438, 446, 484 P.2d 1211, 1215 (1971). The water court's determination of the appropriation date is fact-specific. "[Wlhat constitutes the 'first step' is not the same in every proposed diversion because the facts must be taken into consideration in each case on an Ad hoe basis." Four Counties Water Users Assoc. v. Colo. River Water Conservation Dist., 161 Colo. 416, 422, 425 P.2d 259, 261 (1967); see City & County of Denver v. Colo. River Water Conservation Dist., 696 P.2d 730, 746 (Colo.1985) (Denver ).

The first prong of the first step test requires the intent to appropriate water. Intent to appropriate requires "a fixed purpose to pursue diligently a certain course of action to take and beneficially use water from a particular source." Denver, 696 P.2d at 745. The intent must be relatively specific regarding the amount of water to be appropriated, its place of diversion, and its type of beneficial use; but, for the purposes of a conditional water right decree, the applicant need not know the exact amount of water or point of diversion at the time of the first step. Id. at 747 n. 13. The applicant may demonstrate intent by filing the conditional water right application. Thornton, 830 P.2d at 926; Twin Lakes Reservoir & Canal Co. v. City of Aspen, 192 Colo. 209, 214, 557 P.24 825, 828 (1976).

The second prong of the first step test requires that the applicant perform an overt act or acts in furtherance of the intent to appropriate water and apply it to a beneficial use. Bar 70 Enters., Inc. v. Tosco Corp., 703 P.2d 1297, 1307 (Colo.1985). The overt act or acts must fulfill three functions: (1) manifest the necessary intent to appropriate water to beneficial use; (2) demonstrate the taking of a substantial step toward the application of water to beneficial use; and (8) constitute inquiry notice to interested persons of the nature and extent of the proposed demand upon the water supply. City of Thornton v. Bijou Irrigation Co., 926 P.2d 1, 32 (Colo.1996) (Bijou Irrigation); Bar 70, 703 P.2d at 1307. The overt acts can be physical acts or other useful acts towards effectuating an appropriation, such as planning the appropriation of water, undertaking studies regarding feasibility of the diversion, expending human or financial capital in activities connected with the appropriation, or applying for required permits. Thornton, 830 P.2d at 926.

The first function of the second prong of the first step test, manifesting intent to appropriate water for a beneficial use, is similar to the first prong (intent). When the applicant proves an overt act demonstrating intent, he or she also proves the first prong of the first step test. See id. at 925. Filing an application for a conditional water right can satisfy the intent prong of the first step test and fulfill the first function of the second prong, manifesting the intent to appropriate water. Id. at 926.

The second function of the see-ond prong of the first step test, taking a substantial step towards applying the water to a beneficial use, turns on the facts of the case. There is no bright line rule for when an act constitutes a sufficient "substantial step." In Thornton, we explained that it is unlikely that the act of filing an application for a conditional water right, without any other actions, will fulfill the second function of the second prong of the first step test. Id. A detailed field survey can constitute a substantial step in some cireumstances. Bar 70, 703 P.2d at 1308. However, whether a field survey performs this function is fact-specific. In Bar 70, we held that a field trip by applicants fell short of constituting a substantial step toward appropriation, when the applicants failed to approach the proposed pumping site, failed to survey the points of diversion and storage, and failed to locate monuments or set stakes. Id.

The third function of the second prong of the first step test, giving notice to interested persons of the nature and extent of the proposed demand upon the water supply, is perhaps the most important function. It must place other potential or actual appropriators on inquiry notice regarding the source of the water supply, point of diversion, beneficial use, and amount of diversion. Fruitland Irrigation, 62 Colo. at 165, 162 P. at 163; see City and County of Denver v. N. Colo. Water Conservancy Dist., 130 Colo. 375, 393, 276 P.2d 992, 1001 (1954).

Inquiry notice requires more than mere notice of an unrefined intent to appropriate, but less than a detailed summary of exact diversion specifications. Bijou Irrigation, 926 P.2d at 34. Filing an application for a conditional water right can provide sufficient notice of the intent to appropriate. Thornton, 830 P.2d at 926. A field survey of the proposed appropriation site, without visible staking or posting, does not provide the required notice. Even a field survey, where signs are posted alerting readers of. a pending water right application, provides insufficient notice where the signs do not indicate the potential uses or potential quantities of water proposed for diversion. Bijou Irrigation, 926 P.2d at 34-35.

Whether an applicant for a conditional water right has completed the first step towards an appropriation is a mixed question of law and fact, requiring application of a legal standard to the particular facts of the case. Bijou Irrigation, 926 P.2d at 32. We defer to the court's findings of fact if they are supported by the record and review the court's legal conclusions de novo. See People v. Schall, 59 P.3d 848, 851 (Colo.2002).

In addition to satisfying both prongs of the first step test, the applicant must demonstrate that he or she meets the can and will test. '

2. C

Can and Will Requirement

An applicant must prove by a preponderance of the evidence that he or she can and will complete the appropriation diligently and place the water to a beneficial use within a reasonable time. Aspen Wilderness Workshop, 929 P.2d at 723-24. The General Assembly enacted section 37-92-805(9)(b), 10 C.R.S. (2002), to reduce speculation associated with conditional water decrees and to increase certainty in the administration of water rights. FWS Land & Cattle Co. v. Colorado, 795 P.2d 837, 840 (Colo.1990). The statute provides:

No claim for a conditional water right may be recognized or a decree therefor granted except to the extent that it is established that the waters can be and will be diverted, stored, or otherwise captured, possessed, and controlled and will be beneficially used and that the project can and will be completed with diligence and within a reasonable time.

§ 37-92-805(9)(b), 10 C.R.S. (2002). The can and will statute requires the applicant to prove a substantial probability that the appropriation can and will be completed with diligence, based upon necessarily imperfect predictions of future conditions. Aspen Wilderness Workshop, 929 P.2d at 724. As a threshold, such a showing requires proof that unappropriated water is available for appropriation. Id. at 723. Commencing with the conditional decree proceeding, the water court considers a number of factors in making diligence determinations about the course of steady progress towards completion of the appropriation. Dallas Creek Water Co., 933 P.2d at 36.

Access to the property of another to construct necessary water project features can be an issue in the conditional decree proceeding. In Gibbs v. Wolf Land Co., we held that an appropriator can invoke the statutory right of private condemnation to satisfy the can and will requirement for obtaining a conditional decree, "unless the ree-ord clearly indicates that there are no circumstances under which the applicant may obtain access to the property necessary to finalize the conditionally decreed right." Gibbs v. Wolf Land Co., 856 P.2d 798, 803 (Colo.1993). In the cases where we found that the can and will requirement was not satisfied, the applicant could not utilize the private condemnation statute because the water source was located on public land, the required governmental authorization to access the property was denied, and the denial was final. See West Elk Ranch v. United States, 65 P.3d 479, 481-82 (Colo.2002); FWS Land & Cattle, 795 P.2d at 840.

The statutory right of condemnation for owners of conditional or absolute water rights implements the constitution. Colo. Const., art. XVI, § 7.

Any person owning a water right or conditional water right shall be entitled to a right-of-way through the lands which lie between the point of diversion and point of use or proposed use for the purpose of transporting water for beneficial use in accordance with said water right or conditional water right.

§ 37-86-102, 10 C.R.S. (2002); see Bd. of County Comm'rs v. Park County Sportsmen's Ranch LLP, 45 P.3d 693, 711 (Colo.2002). If the owner of the property through which the right-of-way would run refuses to allow the construction of the necessary water feature on his or her property, the water right owner may exercise the condemnation right with payment of just compensation. § 37-86-104, 10 C.R.S. (2002). The General Assembly clearly anticipated situations in which an applicant for a conditional water right would not own such a right-of-way at the time of application.

B.

Application of the First Step Test to this Case

In this appeal, Vought challenges the appropriation dates the water court decreed for his conditional water rights and for Stucker Mesa's conditional water rights. We begin by analyzing Vought's actions to determine if and when he completed the first step toward appropriating water from the springs.

1.

Vought's Application for Conditional Water Rights

The water court awarded Vought a decree for conditional water rights of 0.01 ef.s. for each spring from Springs Nos. 1, 2, and 3 for domestic use, with an appropriation date of October 23, 2000. This is the date on which Vought filed his application for conditional water rights with the court. It is undisputed that Vought met the first prong of the first step test; he had the intent to appropriate water from the springs for domestic use since 1970. Nevertheless, the water court found that the date on which Vought filed the application for conditional decree was the first time his overt acts towards an appropriation coalesced to fulfill the three required functions of the second prong of the first step test.

Arterburn, Vought's foreman, testified about several actions he took on Vought's behalf. On October 22, 1996, he cleared and widened a road leading toward Vought Spring No. 1. On January 27, 1999, he telephoned an employee of the Colorado Division of Water Resources and discussed the pros and cons of filing for water rights in the springs. In October of 1999, he drove a stake into each spring. After Stucker Mesa filed its applications in the fall of 2000, he dug holes around Spring No. 1 and installed pipes and a barrel in order to increase and measure the flow.

The water court found that Arterburn improved the road and telephoned the Division Engineer's office to discuss filing. The court noted that "the evidence is in conflict with respect to whether the stakes existed, at least as of the fall of [2000]." Nevertheless, the court concluded that-assuming the stakes existed at one time-they did not constitute an overt act demonstrating intent to appropriate. The water court found that Arterburn "dug some holes, cleared out an area around at least the large spring, [and] installed some pipes and a barrel for the purposes of collection of water in measurement of water flow in the fall of 2000" after Stucker Mesa filed its conditional water rights applications.

Vought's overt acts must satisfy the three functions of the second prong of the first step test by: (1) manifesting the necessary intent to appropriate water to beneficial use; (2) demonstrating the taking of a substantial step toward the application of water to beneficial use; and (8) constituting inquiry notice to interested persons of the source of supply, the point of diversion, the amount of diversion, and the type of use. Bijou Irrigation, 926 P.2d at 32. The water court determined that the three functions were fulfilled, but not until the date on which Vought filed his conditional water right application, October 23, 2000. We agree with the water court.

The first function of the second prong of the first step test requires an overt act manifesting the necessary intent to appropriate water for a beneficial use. It is undisputed that Vought intended to appropriate the water since 1970, and his overt acts were sufficient to demonstrate that intent. Clearing a road to improve access to the springs, discussing the intent to appropriate with state officials, staking the springs, and filing an application for water rights all manifested Vought's intent to appropriate. |

The second function of the second prong of the first step test requires an overt act demonstrating the taking of a substantial step towards placing the water to a beneficial use; this is a fact-specific inquiry. The acts required for demonstration of a substantial step vary in relation to the magnitude of the proposed water development. A multi-mil-lion dollar project in which large amounts of water are proposed to be diverted and transported over long distances will require a greater demonstration of sufficient activity than a small project tapping a very limited water supply.

Vought testified that his development plan required only that he install a pump and pipe to place the water into a holding tank outside his home. In light of the limited seale of Vought's proposed appropriation, a substantial step would entail a small amount of activity and capital investment. Based on the record in this case, the water court found that Arterburn's action in digging around the spring and installing pipes and a barrel was the first substantial act taken on behalf of Vought towards placing the water to a beneficial use. We agree.

The water court concluded, and we agree, that clearing the road does not constitute a substantial act. Clearing the road was not tied to accessing Spring No. 1 for developing the water for domestic use. Nor is the discussion with the Division Engineer's Office about the possibility of filing an application a substantial step. Because filing an application for a conditional water right does not constitute a substantial step, Thornton, 830 P.2d at 926, it follows that discussing a possible application cannot satisfy the substantial step requirement. Nor is staking tied to any logical act of developing the spring for beneficial use.

The third function of the second prong of the first step test requires an overt act constituting inquiry notice to other potential or actual appropriators of the nature and extent of the proposed demand upon the water supply. The notice must be reasonably specif-ie-more than mere notice of an unrefined intent to appropriate but less than a detailed summary of exact diversion specifications. Bijou Irrigation, 926 P.2d at 34. Vought's improvement of the road did not provide sufficient notice. As the water court found, no would-be appropriator would have any notice that Vought intended to appropriate water based on his improvement of the road and would have no inkling of the nature and extent of his intended use thereby. Similarly, a private conversation with a state employee is insufficient to provide notice to interested persons of an appropriation. The water court found that the stakes Arterburn placed were obscured by cattails and likely were not visible. Moreover, adequate posting must be sufficiently detailed to describe the nature and extent of claimed water rights and must be "more than mere notice of an unrefined intent to appropriate." Bijou Irrigation, 926 P.2d at 34. The staking here fell short of providing notice to other appropriators. Vought took an act fulfilling the third function of the second prong, inquiry notice regarding the nature and extent of his appropriations, when he filed his water court application.

We affirm the water court's holding that Vought's actions coalesced to fulfill the three functions of the second prong of the first step test when he filed his application for conditional water rights on October 28, 2000. Not until then did he provide sufficient inquiry notice of his appropriation. See Thornton, 830 P.2d at 926.

2.

Stucker Mesa's Applications for Conditional Water Rights

The water court ruled that Stucker Mesa completed the first step towards water appropriations from Springs Nos. 1 and 2, and it dated the appropriations as of September 27, 2000. Applying the two first step prongs, the water court found that Stucker Mesa, through its employees, entered onto Stucker Mesa's easement and Vought's property, in order to check for a pipeline leak and examine the springs for the purpose of appropriating the water into its system for the benefit of Stucker Mesa's shareholders, including Vought. The first inspection was on September 26, 2000. On September 27, 2000, Wolcott returned to determine the location of the point of diversion through a GPS reading, with the help of his son, a trained GIS consultant.

As the evidence shows, the springs were visible from the pipeline easement that Stucker Mesa had across Vought's property; Stucker Mesa could readily tic a collection device and diversion pipe from the springs into its water system; it had customers-including Vought-who could use the water developed by Stucker Mesa from the springs for domestic use; and it took all reasonable actions not to disturb Vought's property while also performing the overt acts required for completing the first step in appropriating water from the springs and preparing its water rights applications.

While Stucker Mesa's acts on the ground demonstrate Stucker Mesa's intent to appropriate the water of the springs for domestic use and constitute a substantial step towards placing the water to a beneficial use, given the small amount of water involved and Stucker Mesa's role as a local domestic water supplier to properties such as Vought's, none of Stucker Mesa's acts provided the requisite inquiry notice to other appropriators of its intent to appropriate the water. Location of a point of diversion through the use of a GPS device is an acceptable method for fixing the point of the proposed diversion for purposes of a conditional appropriation, but it leaves nothing on the ground for other appropriators to notice. See Bar 70, 703 P.2d at 1308. The requisite inquiry notice to other interested appropriators of the nature and seope of its appropriation did not occur until Stucker Mesa filed its conditional water rights applications on October 6, 2000. See Thornton, 830 P.2d at 926.

We hold that the water court correctly determined that the second visit to the site, when the GPS location was fixed, manifested Stucker Mesa's intent to appropriate the water from the springs for beneficial use and constitutes a substantial step toward appropriation, but the water court incorrectly determined that the visit is sufficient to place other appropriators on inquiry notice of the nature and scope of the appropriation. Stucker Mesa first gave the requisite inquiry notice when it filed its water court applications. As a matter of law, Stucker Mesa's date of appropriation is October 6, 2000, the first date on which Stucker Mesa's overt acts coalesced to fulfill the three required functions of the second prong of the first step test.

8.

Application of the Can and Will Doctrine

Vought contends that Stucker Mesa failed to prove that it can and will complete the appropriation for the springs because the company did not have a right of access across Vought's property to the springs. We affirm the water court's finding that Stucker Mesa established that it can and will appropriate the water from the springs for beneficial domestic use diligently and within a reasonable time.

Stucker Mesa proved that it has the need and ability to construct the water works necessary for the appropriation, invoking the right of private condemnation to access the springs for diversion and conveyance of the water. See Gibbs, 856 P.2d at 803. The water company has a present need for more water for its tap owners, including Vought, and it owns a pipeline crossing Vought's property several hundred feet from the springs. Stucker Mesa established that it can and will complete the appropriation with diligence and apply the water to a beneficial use within a reasonable time.

Therefore, we affirm the water court's conclusion that Stucker Mesa met the can and will test for a conditional appropriation.

C.

Refusal to Dismiss Stucker Mesa's Applications

Next, Vought appeals the water court's decision not to dismiss Stucker Mesa's applications because of an alleged trespass.

First, the water court did not find the Stucker Mesa employees to be in trespass. Specifically, the evidence shows that the Stucker Mesa employees were validly within the fenced areas of Vought's property and the springs were in plain view from Stucker Mesa's pipeline easement. Further, the evidence shows that Stucker Mesa is a nonprofit corporation dedicated to providing adequate, dependable water to its shareholders, including Vought. Stucker Mesa currently lacks sufficient water for all of its current customers and, at times, is required to limit use, so the company was acting in the best interests of its shareholders and tap owners by seeking additional sources of water.

Because Vought is a tap owner and shareholder in Stucker Mesa, he will benefit from any water rights obtained by Stucker Mesa. In addition to benefiting from addition of the water to the Stucker Mesa supply system, Vought will be compensated for any interest in his property that Stucker Mesa requires to complete the appropriation.

Consequently, we affirm the trial court's ruling refusing to dismiss Stucker Mesa's applications and finding that Stucker Mesa completed the first step towards an appropriation from Springs Nos. 1 and 2, but we correct the appropriation date to correspond with the evidence.

IIL.

Accordingly, we affirm the water court's conditional water rights decree for Vought, with an appropriation date of October 28, 2000, the date of his application. We reverse the water court's holding awarding Stucker Mesa conditional water rights with an appropriation date of September 27, 2000. As a matter of law, based on the evidence of ree-ord in the case, Stucker Mesa's appropriation date is October 6, 2000. The adjudication date for each of these appropriations is the calendar year 2000. Under both the Vought and Stucker Mesa case facts, the required inquiry notice to other appropriators did not oceur until the applications were filed with the water court.

      . Vought lists the following issues on appeal:
      1. Did the Water Court err in finding that the overt acts of monumentation of the points of diversion (staking of the springs) and construction activities (earthmoving to improve access to the points of diversion}, performed by Appellant's ranch foreman, were insufficient to provide notice of an appropriation of water so as to constitute the first step of a conditional water right appropriation?
      2. Did the Water Court err in finding that a trespass by a private water company official and his son, for the purpose of obtaining global positioning system coordinates without any monumentation or physical disturbance of the land, provided adequate notice [of] an appropriation of water so as to constitute the first step of a conditional water right appropriation?
      3. Did the Water Court err in finding that a conditional water right knowingly initiated in trespass upon private property is not void or voidable as against public policy?

        4. Did the Water Court err in granting conditional water rights based upon a finding that a private water company could and would complete the appropriation for springs located upon Appellant's property where the private water company was without an existing right of access or the ability to obtain such right of access.

      . Water from springs is presumed to be tributary for purposes of the prior-appropriation doctrine, but the landowner has a preference for use of water for springs arising on his land if the water is non-tributary. See Ranson v. City of Boulder, 161 Colo. 478, 483, 424 P.2d 122, 123 (1967); § 37-82-102, 10 C.R.S. (2002)(landowner preference to water from natural springs on his property); § 37-82-103, 10 CRS. (2002)(water of tributary natural springs is subject to the prior-appropriation doctrine).

      . Stucker Mesa characterized the water sources as two springs: Big Dripper Spring and Little Dripper Spring. Vought characterized the same water sources as three springs: Vought Spring No. 1, Vought Spring No. 2, and Vought Spring No. 3. Throughout this opinion, we refer to the springs as Springs Nos. 1, 2, and 3.

      . Stucker Mesa has developed a prioritization system that limits specific water uses in times of shortage. Also, the company has not granted a new tap since 1980, and the last six taps granted . were under the condition that their water would be cut off in times of extreme shortage.

      . - This court has direct appellate review of water court adjudications pursuant to Colo. Const. art. VI, § 2(2), section 13-4-102(1)(d), 5 CRS. (2002), and C.A.R. 1(a)(2). Park County Sportsmen's Ranch LLP v. Bargas, 986 P.2d 262, 265 n. 2 (Colo.1999).

      . In Bar 70, we found the applicant's field survey to be far short of providing required notice.
      Tosco's field crew visited the general site of the proposed Miller Creek diversion only once, leaving nothing there that would indicate their inspection or the nature and purpose of their trip. No survey stakes or lines were set, no signs were posted near the site of the proposed diversion, and no notices were filed in the local newspapers. The field crew's activities, which consisted of taking notes and photographs, were not sufficient to alert any person who might fortuitously have been present at or near the site of the nature and scope of Tosco's contemplated diversion; nor, for that matter, were they sufficient to place an observer even on inquiry notice of Tosco's intent to appropriate any water at all. Indeed, if preliminary reconnaissance work of this type is permitted to satisfy the overt acts requirement, the notice function of that requirement for all practical purposes would be eliminated.
      Bar 70, 703 P.2d at 1308 (emphasis added).