AGRIC. DEPT, Mai [AGRICULTURAL I . LIBRARY, IRRIGATION STATUTES CALIFORNIA Revised Statutes of Colorado 1908 ALSO Laws Passed by the Seventeenth General Assembly Relating to Irrigation AND Supreme Coijrt Decisions Published by Authority PRICE, $1.00 THE SMITH-BROOKS ?UiN i. 'N G C O,. .''STATE ^ . Azric. Dept MU.I4K ., ~ PREFACE DEFT. The office of State Engineer was originally created for the purpose of administering the decrees of court, rendered under the irrigation statutes, and it is the duty of the officers of this department to execute these decrees, and in order that the rights of all users of water mar be properly protected and to bring about a uniformity in the distribution of water an accurate knowledge of the statutes, as well as the interpretation placed thereon by the courts of last resort, is fundamentally necessary. The recent compilation of the statutes of Colorado brought the irrigation statutes into compact form, and this bulletin re- produces the chapter on Irrigation from the Revised Statutes of Colorado, 1908, exactly as published. In the preparation of this work a careful examination has been made of all the decisions relative to irrigation and water rights rendered by the Supreme Court and Court of Appeals of this State, and almost verbatim extracts therefrom have been taken, following the topical .headings of the Revised Statutes. The celebrated decision of the United States Supreme Court in the Kansas-Colorado case, involving the right of the State to the use of the waters of the Arkansas river for irrigation, is like- wise included in this work. The extracts of the decisions of the courts were compiled by Harvey E. Rockwell, Esq., of the Denver Bar. To assist in the more equitable distribution of water through- out the State, and to meet the constant and increasing demand on the part of the public for the irrigations laws of Colorado in convenient form, this book was compiled, and is now published with the hope that it will prove of benefit in accomplishing the ends which prompted its compilation. T. W. JAYCOX, State Engineer. CONSTITUTION OF THE STATE OF COLORADO Article XVI. IRRIGATION. See. 5. Water, public property. The water of every natural stream, not heretofore appropriated, within the state of Colo- rado, is hereby declared to be the property of the public, and the same is dedicated to the use of the people of the state, sub- ject to appropriation as hereinafter provided. Sec. 6. Diverting unappropriated water Priority. The right to divert the unappropriated waters of any natural stream to beneficial uses shall never be denied. Priority of appropriation shall give the better right as between those using the water for the same purpose; but when the waters of any natural stream are not sufficient for the service of all those desiring the use of the same, those using the water for domestic purposes shall have the preference over those claiming for any other purpose, and those using the water for agricultural purposes shall have pref- erence over those using the same for manufacturing purposes. Sec. 7. Right of way for ditches Flumes. All persons and corporations shall have the right of way across public, private and corporate lands for the construction of ditches, canals and flumes for the purpose of conveying water for domestic purposes, for the irrigation of agricultural lands, and for mining and man- ufacturing purposes, and for drainage, upon payment of just compensation. Sec. 8. County commissioners fix rates for water. The Gen- eral Assembly shall provide by law that the board of county com- missioners in their respective counties shall have power, when application is made to them by either party interested, to estab- lish reasonable maximum rates to be charged for the use of water, whether furnished by individuals or corporations. 280200 CHAPTER LXXIL IRRIGATION. I. RIGHT OF WAY APPROPRIATION USE OF WATER. 3165- 3232. II. DUTIES OF OWNERS. 3233-3261. III. RATE OF C ARGE FOR WATER. 3262-3275. IV. ADJUDICATION OF PRIORITIES. 3276-3320. V. STATE ENGINEER. 3321-3334. VI. IRRIGATION DIVISIONS DIVISION ENGINEERS. 3335-3352. VII. WATER DISTRICTS WATER COMMISSIONERS. 3353-3439. VIII. IRRIGATION DISTRICTS. 3440-3494. IX. OFFENSES. 3495-3498. X. STATE CANALS AND RESERVOIRS AND THE CONTROL THEREOF. 3499-3562. I. RIGHT OF WAY APPROPRIATION USE OF WATER. Section. 3165. Owners of land on streams entitled to use of water. 3166. When water to be allotted on alternate days. 3167. Right of way through other lands. 3168. Extent of right of way. 3169. Condemnation of right of way. 3170. No land burdened with more than one ditch, ex- cept. 3171. Shortest route must be taken. 3172. Owner of ditch must per- mit others to enlarge. 3173. When head of ditch may be extended up stream Condemnation. 3174. Only irrigation ditches re- ferred to in above sec- tion. 3175. Water to be pro rated among consumers. 3176. Irrigation of meadows Right to make ditch- Priority. Section. 3177. Priority of right to seep- age or spring water. 3178. Water appropriated for domestic purposes shall not be employed for ir- rigation. 3179. Penalty for misapplica- tion Jurisdiction of jus- tice. 3180. Right to place wheel oil stream. 3181. Map of ditch or reservoir to be filed. 3182. Statement attached to map. 3183. Statement in case of en- largement Temporary map. 3184. Statement must be signed and sworn to. . 3185. State engineer examine maps and statements Return duplicate Du- plicate filed with re- corder. 3186. Certified copy evidence Diligent construction. Section. 3187. Compliance with former act. 3188. Petition to establish or enlarge drain. 3189. Contents of petition Plat. 3190. Bond of petitioner. 3191. Board of viewers Duties Hearing Notice. 3192. Hearing Evidence Re- port When joint hear- ing. 3193. When improvement not feasible. 3194. When feasible Report Appeal. 3195. Allotment of work Bond. 3196. When work let by con- tract Advertise for bids Bond. 3197. Completion Expense pro rated County treasurer collect. 3198. Acceptance Vouchers. 3199. Compensation o f engi- neers and viewers. 3200. Right of eminent domain. 3201. Disposition of water drained. 3202. Right to take water for reservoir Right of way Embankment. 3203. Conducting water in streams Taking out How about determined. 3204. Liability of owner for damage. 3205. Construction of reservoirs State engineer super- vise. 3206. Cost of inspection and su- pervision paid by owner. 3207. Engineer determine amount of water to be stored. 3208. Water commissioner with- draw excess water Close inlets. 3209. Complaint that reservoir is unsafe Duty of engi- neer. Section. 3210. Engineer may use force Violation of engineer's order. 3211. Expense of examination By whom paid. 3212. Appeal from decision of engineer. 3213. Owner liable for damages in case of breakage of reservoir. 3214. Violation of act Penalty Disposition of fines. 3215. Survey of reservoir site on arid land. 3216. Construction of reservoir County surveyor su- pervise. 3217. Completion Plat filed Contents. 3218. Approval of plat Duty of owner. 3219. Inspection Notice to owner Failure to re- pair. 3220. Compensation of county surveyor By whom paid. 3221. Damages. 3222. Exchange of water less seepage. 3223. Must maintain flumes and register water. 3224. Water commissioner keep record. 3225. Reservoirs and ditches may exchange. 3226. Changing point of diver- sion Petition Practice and procedure. 3227. Notice to parties affected When change allowed. 3228. Several applications in one Cons olidation ' Process. 3229. Certified copy of decree filed Notice of change. 3230. Change to other district- Copy of decree filed. 3231. Re-arguments, reviews and appeals. 3232. Owner may exchange or loan water rights. 3165. Owners of land on streams entitled to use of water. Sec. 1. All persons who claim, own or hold a possessory right or title to any land or parcel of land within the boundary of the state of Colorado, as denned in the constitution of said state, when those claims are on the bank, margin or neighborhood of any stream of water, creek or river, shall be entitled to the use of the water of said stream, creek or river for the purposes of irrigation, and making said claims available to the full extent of the soil, for agricultural purposes. [G. S., 1711; G. L., 1372; K. S., p. :H>3, 1; L. >61, p. 67, 1. [Water rights conveyed as real estate, section 669.] [When ditch exempt from taxation, sections 5545 and 5546.] [Mechanic's lien attaches to water rights. Section 4031.] 3166. When water to be allotted on alternate days. Sec. 2. In case the volume of water in said stream or river shall not be sufficient to supply the continual wants of the entire country through which it passes, then the county judge of the county shall appoint three commissioners as hereinafter provided, whose duty it shall be to apportion in a just and equitable proportion a certain amount of said water upon certain or alternate weekly days to different localities, as they may in their judgment think best for the interest of all parties concerned, and with due regard to the legal rights of all. [G. S., 1714; G. L., 1375; L. '70, p. ir>s, 1 : amending K. S., p. 3(>:>, 4; L. '61, p. 68, 4. [Is the above provision for appointment of commissioners superseded by section 3427?] 3167. Right of way through other lands. Sec. 3. When any person owning claims in such locality has not sufficient length of area exposed to said stream to obtain a sufficient fall of w r ater to irrigate his land, or that his farm, or land used by him for agricultural purposes, is too far removed from said stream, and that he has no water facilities on those lands, he shall be entitled to a right of way through the farms or tracts of lands which lie between him and said stream, or the farms or tracts of land which lie above and below him on said stream, for the purposes hereinbefore stated. [G. S., 1712; G. L., 1373; R. S., p. 363, 2: L. '61, p. 67, 2. 3168. Extent of right of way. Sec. 4. Such right of way shall extend only to a ditch, dyke or cutting, sufficient for the purpose required. [G. S., 1713; G. L., 1374; R, S., p. 363, 3; L. '61. p. 67, 3. 3169. Condemnation of right of way. Sec. 5. Upon the re- fusal of the owners of tracts of land or lands through which said ditch is proposed to run, to allow of its passage through their property, the person or persons desiring to open such ditch may proceed to condemn and take the right of way therefor ( under the provisions of chapter thirty-one of these laws con- cerning eminent domain). [G. S., 1715; G. L., 1376. [Chapter 31 above referred to is found in its amended form between sections 2415 and 2434.] [See also Constitution, article 16, sections 5-8.] 8 3170. No land burdened with more than one ditch, except Sec. 6. That no tract or parcel -of improved or occupied land in this state, shall, Avithout the written consent of the owner thereof, be subjected to the burden of two or more irrigating ditches constructed for the purposes of conveying water through said property, to lands adjoining or beyond the same, when the same object can feasibly and practicably be attained by uniting and conveying 'all the water necessary to be conveyed through such property in one ditch. [G. S., 1716; L. '81, p. 164, 1. 3171. Shortest route must be taken. Sec. 7. Whenever any person or persons find it necessary to convey water for the pur- pose of irrigation through the improved or occupied lands of another, he or they shall select for the line of such ditch through such property the shortest and most direct route practicable, upon which said ditch can be constructed with uniform or nearly uniform grade, and discharge the water at a point where it can be conveyed to and used upon land or lands of the person or persons constructing such ditch. [G. S., 1717; L. '81, p. 164, 2. 3172. Owner of ditch must permit others to enlarge. Sec. 8. No person or persons having constructed a private ditch for the purposes and in the manner hereinbefore provided, shall prohibit or prevent any other person or persons from enlarging or using any ditch by him or them constructed in common with him or them, upon payment to him or them of a Reasonable proportion of the cost of construction of said ditch. [G. S., 1718; L. '81, p. 164, 3. 3173. When head of ditch may be extended up stream Con- demnation. Sec. 9. In case the channel of any natural stream shall become so cut out, lowered, turned aside or otherwise changed from any cause, as to prevent any ditch, canal or feeder of any reservoir from receiving the proper inflow of water to which it may be entitled from such natural stream, the owner or owners of such ditch, canal or feeder shall have the right to extend the head of such ditch, canal or feeder to such distance up the stream which supplies the same as may be necessary for securing a sufficient flow of water into the same, and for that purpose shall have the same right to maintain proceedings for condemnation of right of way for such extension as in case of constructing a new ditch, and the priority of right to take water from such stream, through such ditch, canal or feeder as to any such ditch, canal or feeder shall remain unaffected in any respect by reason of such extension : Provided, however, That no such extension shall interfere with the complete use or enjoy- ment of any ditch, canal or feeder. [G. S., 1719; L. '81. p. 161, 1. [For right of condemnation for new ditch see section 3169.] 3174. Only irrigation ditches referred to in the last above sec- tion. Sec. 10. This act shall apply to and affect only ditches, canals or feeders used for carrying water for the purpose of irrigation, and for no other purpose whatever. [G. S., 1721; L. '81, p. 162, 3. [The act referred to is found in L. '79, p. '95, et seq.] 3175. Water to be pro rated among consumers. Sec. 11. If at any time any ditch or reservoir from which water is or shall be drawn for irrigation shall not be entitled to a full supply of water from the natural stream which supplies the same, the water actually received into and, carried by such ditch, or held in such reservoir, shall be divided among all the consumers of water from such ditch or reservoir, as well as the owners, share- holders or stockholders thereof, as the parties purchasing water therefrom, and parties taking water partly under and by virtue of holding shares, and partly by purchasing the same, to each his share pro rata, according to the amount he, she or they (in cases in which several consume water jointly) shall be then en- titled, so that all owners and purchasers shall suffer from the deficiency arising from the cause aforesaid each in proportion to the amount of water to which he, she or they should have received in case no such deficiency of water had occurred. [G. S., 1722; L. '79, p. 97, 4. 3176. Irrigation of meadows Right to make ditch Priority. Sec. 12. All persons who shall have enjoyed the use of the water in any natural stream for the irrigation of any meadow land, by the natural overflow or operation of the water of such stream, shall, in case the diminishing of the water supplied by such stream, from any cause, prevent such irrigation therefrom in as ample a manner as formerly, have right to construct a ditch for the irrigation of such meadow, and to take water from such stream therefor, and his or their right to water through such ditch shall have the same priority as though such ditch had been constructed at the time he, she or they first occupied and used such land as meadow ground. [G. S., 1723; L. '79, p. 106, 37. 3177. Priority of right to seepage or spring water. Sec. 13. That all ditches now constructed or hereafter to be constructed for the purpose of utilizing the waste, seepage or spring waters of the state, shall be governed by the same laws relating to prior- ity of right as those ditches constructed for the purpose of utiliz- ing the water of tunning streams; Provided, That the person upon whose lands the seepage or spring waters first arise, shall have the prior right to such waters if capable of being used upon his lands. [L. '89, p. 215, 1. [Right to water hoisted from mine. Section 4231.] 10 3178. Water appropriated for domestic purposes shall not be employed for irrigation. Sec. 14. Water claimed and appropri- ated for domestic purposes shall not be employed or used for irrigation or for application to land or plants in an}* manner to any extent whatever; Provided, That the provisions of this section shall not prohibit any citizen or town or corporation organized solely for the purpose of supplying water to the in- habitants to such city or town from supplying water thereto for sprinkling streets and extinguishing fires or for household purposes. [L. '91, p. 402, 1. 3179. Penalty for misapplication Jurisdiction of justice. Sec. 15. Any person claiming the right to divert water for do- mestic purposes from any natural stream who shall apply or knowingly permit the water so diverted to be applied for other than domestic purposes to the injury of any other person en- titled to use such water for irrigation shall be deemed guilty of a misdemeanor and upon conviction shall pay a fine of not less than fifty dollars and not exceeding two hundred dollars in the discretion of the court wherein conviction is had. Each day of such improper application of water obtained in the manner afore- said shall be deemed a separate offense. Justices of the peace in their several precincts shall have jurisdiction of the aforesaid offense subject to the right of appeal as in cases of assault and battery. [L. '91, p. 403, 2. [For right of appeal in cases of assault and battery see section 3869.1 3180. Right to place wheels on streams Condition. Sec. IB. All persons on the margin, brink, neighborhood or precinct of any stream of water, shall have the right and power to place upon the bank of said stream a wheel, or other machine for the purpose of raising water to the level required for the purpose of irrigation, and the right of way shall not be refused by the owner of any tract of land upon which it is required, subject of course to the like regulations, as required for ditches, and laid down in sections hereinbefore enumerated. [G. S., 1727; G. L., 1377 ; K. S., p. 364, 6. 3181. Map of ditch or reservoir to be filed. Sec. 17. Every person, association or corporation hereafter constructing or en larging any reservoir or reservoirs, constructing, changing tho location of, or enlarging any ditch, canal, or feeder for any ditch or reservoir, for the purpose of furnishing a supply of w^ater for domestic, irrigation, power or storage, or for any other beneficial use, taking water from any natural stream, shall, within sixty days after the commencement of such construction, change of location or enlargement, make filings in the office of the State engineer for each specific claim, in such form as shall seem suf- 11 ficieut and satisfactory to the State engineer, and accompanied by the proper fees, as provided by statute, two duplicate copies, on tracing muslin, or other material adapted for permanent record and preservation, as may be required by regulation of the state engineer, of a map, made with permanent ink, showing the point of location of the headgate, the route of such ditch or canal or the high-water line of such reservoir or reservoirs, and the route of the feeder or feeders to, and ditches or canals from, such reser- voir or reservoirs, the legal subdivisions of the land upon which such structures are built or to be built, if on surveyed lands, the names of the owners of such lands, and such courses, dis- tances and corners by reference to legal subdivisions, if on sur- veyed lands, or to natural objects, if on unsurveyed lands, as will clearly designate the location of such structures. [L. '03, p. 28<), 1. [For fees of state engineer see sections 3206, 3211 and 3332.] 3182. Statement attached to map. Sec. 18. Upon or at- tached to such maps shall be duplicate stratements, showing in the case of any ditch, canal or feeder: First The point of location of the head-gate of the proposed structure. Second The depth, width, grade and length of each ditch, canal or feeder proposed. Third The carrying capacity of each ditch, canal or feeder in cubic feet per second. Fourth The time of commencement of work on such struc- tures, which time may be the date of the commencement of the surveys therefor, or of the commencement of actual construction. Fifth The estimated cost of the proposed project. In cases when filings are made upon reservoir sites the stae- ments shall show the height of the proposed dam, the estimated cost, with the capacity in cubic feet and the surface area for each foot in depth of water stored up to and including the high-water mark. [L. '08, p. 290, 2. [Cubic inch of water denned. Section 7026.] 3183. Statement in case of enlargement Temporary map. Sec. 10. In case of change, enlargement or extension, such state- ments shall show the matters required above, referring to the structures before such change or enlargement, and shall then state, also, the information required in the above items second, third and fourth and fifth, referring to the structure as enlarged, and in addition thereto, shall state definitely the increase in capacity to be added to the original capacity by virtue of such enlargement. Whenever, through the necessity for extended sur- veys requiring long periods of time, it shall be impracticable for the claimant or claimants to file a complete map and statement 12 within sixty days, as required above, a map and statement as complete as may be practicable shall be filed, with a further statement that a complete map and statement will be filed later, and upon the completion of such survey a full and detailed map and statement, amending the ones first filed, shall be offered for examination and acceptance in the same manner as herein provid- ed for the original filing. [L. '03, p. 290, 3. 3184. Statements must be signed and sworn to. Sec. 20. Such statements shall be signed by the person or persons in whose behalf they are made, or, in cases where an associatioa or a corporation are the parties interested, the signature shall be the legal title of such association or corporation, signed by some duly authorized agent or officer, who shall also sign his own name, giving his official title, and the truth of the matter shown in such maps and statements shall also be sworn to by the engi- neer in charge, or person making the survey, before some officer legally qualified for the administration of oaths. [L. '03, p, 291, 4. 3185. State engineer examine maps and statements Return duplicate Duplicate filed with recorder. Sec. 21. The state engi- neer shall examine the duplicate maps and statements, and if he shall find the data therein contained to be sufficient and satis- factory for a clear presentation of facts concerning the claims made, he shall file one of the maps and statements in his office, and shall return the duplicate map and statement to the claim- ant with a certificate, stating that it has been examined and approved by him, and that it is a duplicate of the copy filed in his official records, and this duplicate copy shall, within ninety days .from the time stated as the date of commencement, be filed by the claimant in the office of the county clerk and recorder in which the headgate of the proposed structure, or in which the proposed reservoir shall lie. [L. '03, p. 291, 5. 3186. Certified copy evidence Diligent construction. Sec. -'1. A certified copy of the map and statement thus filed in the state engineer's office shall be prima facie evidence in any court having jurisdiction of the intent of the claimant or claimants to make such construction and to utilize such rights as are shown and described in the map and statement ; Provided, That nothing herein contained shall be so construed as to dispense with the necessity for due diligence in the construction of such projects, or to the injury of those having rights prior to those of the claimants; And, provided, further. That nothing herein con- tained shall be so construed as to prevent proper adjudication of rights in accordance with existing statutes governing sucR .adjudication. [L. '03, p. 291, 6. 13 3187. Compliance with former act. Sec. 23. All plats and statements or other documents heretofore filed or recorded in substantial compliance with the provisions or requirements of section 2 of an act entitled, "An act to provide for the extension of the right of way for ditches, canals and feeders of reservoirs in certain cases, and requiring registration of all such hereafter made or enlarged," approved February 11, 1881, shall be taken, deemed and held to constitute a compliance with the provisions of this act. [L. '03, p. 292, G. [Section 2 of the act above referred to was held unconstitutional in L,amar Co. v. Amity Co., 26 Colo., 370. The provisions of that section were re-enacted by L. '87, p. 315, which act was superseded by sections 3181-3187.] DRAINAGE. 3188. Petition to establish or enlarge drain. Sec. 24. When- ever any person, company or corporation desires the construc- tion, enlargement or extension of a ditch, drain or water course for the purpose of draining and reclaiming seeped or marshy land, they shall file with the board of county commissioners of the county or counties in which such improvement or improve- ments are to be located, a petition signed by one or more of the land owners who own or represent the major portion of the land which would be affected by the proposed improvement. [L. '03, p. 209, 1. 3189. Contents of petition Plat. Sec. 25. Said petition shall set forth the necessity for and probable benefits of such ditch, drain or water course, together with a list of the lands affected by the proposed improvement, and whether such lands so affected are in one or more counties, and therein naming the county or counties where such land is located, or through which said improvement may pass, and the names and addresses of the owners of such lands, and there shall be attached to said petition a plat showing approximately the location, direction, size and length of said drain, ditch or water course. [L. '03, p. 210, 2. 3190. Bond of petitioner. Sec. 26. The petitioner or peti- tioners shall give a good and sufficient bond, payable to the coun- ty or counties and approved by the county clerk, conditioned, in cas< said drain, ditch or water course from any cause- whatso- ever is not constructed, to pay all expenses incurred by the county or counties on account of said proposed improvements. [L. '03, p. 210, 3. 3191. Board of viewers Duties Hearing Notice. Sec. 27. When such petition plat and bonds are filed the board of county commissioners of each county where such improvement is to be made shall appoint a board of viewers consisting of three disin- terested persons, residents of the county where the improvement 14 is to be, who in turn shall select a competent engineer to assist them, and in the event that such improvement extends into more than one county when the board of commissioners of each coun- ty where such improvement is to be made shall take a like action, and the same procedure shall be necessary of each county or board of county commissioners and of all petitioners or parties interested as would be necessary if the entire improvement were to be made in one county only. The board of viewers of each county wherein such improvement is to be made shall then pro- ceed at once to view the line of the proposed appointed drain and the lands affected thereby lying within the county for which they were appointed, and shall cause the engineer to prepare accurate surveys and estimates of the proposed work on the land lying within the county for which the}' were appointed, and shall set a day and place for hearing the views of all interested parties, receive protests, information, and any matter in relation to the proposed improvements ; and the board of viewers shall notify all the resident land holders of their county affected by such im- provement by personal service tw.enty days prior to the date of such meeting and personal service of said notice can not be had, or if any of said land holders are non-residents, then said notice shall be sent through the mail ; and shall also cause to be pub- lished a copy of said notice in some weekly newspaper in said county for a period of not less than four weeks prior to said meeting. [L. '03, p. 210, 4. 3192. Hearing Evidence Report When joint hearing. Sec. 28. All persons whose lands may be affected may appear at the time specified for the said meeting before said board of viewers and present such testimony and affidavits as shall re- late to the proposed drainage system, with such recommendations and objections as shall to them seem pertinent and necessary. If the proposed improvement extends into more than one county then the viewers appointed by each board of county commission- ers of the county wherein a part of such improvement is to be made, shall meet at some point agreed upon by the different boards of viewers of the different counties and there prepare a joint report upon all matters and things required of a board of viewers where the improvement is in a single county, and shall then forward to each board of county commissioners of each county for which they are appointed a copy of said joint report, but this shall not be construed so as to require the persons whose lands are affected thereby by this section to appear before said board when acting jointly unless it would be more convenient for hearing provided for by this section to be a joint one by the different reviewing boards of the different counties. [L. '03. p. 211, 5. 15 3193. When improvement not feasible. Sec. 29. If the view- ers shall find that the proposed improvement is not feasible, they shall so report to the board of county commissioners, and the costs and expenses incurred shall be paid by the original pe- titioners, as provided under their bond. [L. '03, p. 212, 6. 3194. When feasible Report Appeal. Sec. 30. If, how- ever, the improvements shall be found feasible and of use and benefit and to be desired by owners representing a major part of the lands affected, the board of viewers shall so report to the board of county commissioners, and shall include in their report a detailed recommendation of the method to be pursued in prose- cuting the work, and shall submit plans and specifications for the letting of contracts and fix and recommend the proportionate assessment for each tract of land affected, which assessment shall b proportionate to the benefits accruing to each of such tracts ; Provided, however, That any person interested therein who shall feel aggrieved at the report and finding of the board of county commissioners shall have the right of appeal to the district court of said county and have such matters passed upon by a jury. [L. '03, p. 212, 7. 3195. Allotment of work Bond. SIM-. :U. The board of viewers may, by agreement of the land owners, recommend the allotment to each of a portion of the improvement; Provided, however, That each said owner shall give a good and sufficient bond for the proper performance of his proportion of the work so alloted. [L. '03, p. 212, 8. 3196. When work let by contract Advertise for bids Bond. Sec. 32. In case no such allotment or division of the work is made, or in case all of it shall not be so allotted, the county commissioners shall cause an advertisement to be inserted in a daily or weekly paper of general circulation in the vicinity for a period of thirty days. Said advertisement shall be a notice to the land owners of the work proposed and shall call for bids on the work, in accordance with the recommendations of the board of viewers, and the contract shall be let to the lowest re- sponsible bidder for the entire work lying within their respective counties, or to the lowest responsible bidders on each of the sev- eral portions of the work. The successful bidder or bidders shall file a good and sufficient bond with the board of county commis- sioners for the faithful performance of their contract. [L. '03, p. 212, 9. [For appeals from disallowance of claims by commissioners see section 1225.] 3197. Completion Expense pro rated County treasurer col- lect. Sec. 33. When the work shall have been completed and accepted by the engineer in charge, the county commissioners 16 shall determine the total cost, damages and other expenses, and divide the same among the several tracts of land affected, in their respective counties, in the proportion determined by the board of viewers, and shall certify to the county assessor or assessors if in more than one county, a list of the lands affected, the total amounts to be assessed against each, with all credits for work or damages due the owner of each tract, with the net assess- ment of each, and the assessor or assessors if in more than one county shall enter the said net assessment against each of the several tracts of land lying within his county in the same man- ner as for other taxes, and the county treasurer of each county where such improvement or part thereof is to be made, shall - collect the same and reimburse the county for all moneys ex- pended or expenses incurred subject to the right of appeal to the district court as to matters herein as in cases of appeal from disallowance of claims by board of county commissioners. [L. '03, p. 213, 10. 3198. Acceptance Vouchers. Sec. 34. Upon the proper ac- ceptance by the engineer or engineers if such improvement is in more than one county the board of county commissioners of each county where such improvement is located, shall c^ue a voucher to be drawn upon the county treasurer for the amounts due on contracts, for damages and other expenses. [L. ? 03, p. 213, 11. 3199. Compensation of engineers and viewers. Sec. 35. Each ef the members of the board of viewers shall receive their neces- sary expenses and three dollars per day for services, and the en- gineers shall receive their necessary expenses and six dollars per day for each day necessarily employed. [L. ? 03, p. 2.13, 12. 3200. Right of eminent domain. Sec. 36. The right of emi- nent domain shall extend to all improvements constructed under this act. [L. '03, p. 213, 13. [See Chapter 45. Eminent Domain.] RESERVOIRS. 3201. Disposition of water drained. Sec. 37. All waters gathered by such drainage improvement shall be the property of those from whose lands the same is taken by such drainage canal, and the same shall be pro rated among the different land holders from which such water is taken according to the < ost of the improvement assessed against each one. [L. '03, p. 213, 14. 3202. Reservoirs Right to water Right of way Condemna- tion Embankments over ten feet submit to county board. Sec. 38. Persons desirous to construct and maintain reservoirs, for the purpose of storing water, shall have the right to take from any 17 of the natural streams of the state and store away any .unappro- priated water not needed for immediate use for domestic or irri- gating purposes; to construct and maintain ditches for carrying such water to and from such reservoir, and to condemn lands for such reservoirs and ditches in the same manner provided by law for the condemnation of lands for right of way for ditches; Provided, Xo reservoir with embankments or a dam exceeding ten feet in height shall be made without first submitting the plans thereof to the county commissioners of the county in which it is situated, and obtaining their approval of such plans. [G. S., 1724; L. '79, p. 106, 38. [Is the above section superseded by section 3205?] 3203. Conducting water in natural streams Taking out Al- lowance for seepage How determined. Sec. 39. The owners of any reservoir may conduct the water therefrom into and along any of the natural streams of the state, but not so as to raise the waters thereof above ordinary high water mark, and may take the same out again at any point desired, without regard to the prior rights of others to water from said stream; but due allow- ance shall be made for evaporation and seepage, the amount to be determined by the commissioners of irrigation of the district; or, if there are no such commissioners, then by the county com- missioners -of the county in which the water shall be taken out for use. [G. S., 1725 ;*L. 79, p. 107, 39. [See also section 3225.] ! 3204. Liability of owners for damage. Sec. 40. The owners of the reservoirs shall be liable for all damages arising from leakage or overflow of the waters therefrom or by floods caused by breaking of the embankments of such reservoirs. [G. S., 1720; L. '79, p. 1(17, 40. 3205. Construction ^ of reservoirs State engineer supervise. Sec. 41. No reservoir of a capacity of more than seventy-five millions cubic feet of water, or having a dam or embankment in excess of ten feet in vertical height, and covering an area of more than 20 acres shall hereafter be constructed in this state, except the plans and specifications of the same shall" first be ap- proved by the state engineer ; and the state engineer shall act as consulting engineer during the construction thereof, and shall have authority to require the material used and the w r ork of con- struction to be done to his satisfaction; and no w^ork shall be deemed complete under the provisions of this act until the state engineer shall give to the owners of such structures a written statement of the work of construction and the full .completion thereof together with his acceptance of the same, which state- ment shall specify the dimensions and capacity of such reser- voir or reservoirs. [L. '99, p. 314, 1. 18 3206. Cost of inspection and supervision paid by owner. Sec. 42. The owners of such reservoirs shall pay to said state en- gineer his actual expenses incurred in making personal inspec- tion, and five dollars per day and expenses to any deputy ap- pointed by him to attend to such supervision when necessarily employed for such purpose. [L. '99, p. 314, 2. 3207. Engineer determine amount of water to be stored. Sec. 43. The state engineer shall annually determine the amount of water which it is safe to impound in the several reservoirs within this state and it shall be unlawful for the owners of any reser- voir to store in said reservoir water in excess of the amount so determined by the state engineer to be safe. [L. '99, p. 315, 3. 3208. Water commissioner withdraw excess water Close in- lets. Sec. 44. In the event of the owners of any such reservoir impounding water therein to a depth greater than that de- termined by the state engineer to be safe, it shall be the duty of the water commissioner of the district wherein such reservoir shall be located, to forthwith proceed to withdraw from said reservoir so much of the water so impounded therein as shall be in excess of the amount so determined by the state engineer to be safe, and shall close the inlets to the same so as to prevent said reservoir from being refilled to an amount beyond what said state engineer shall have designated as being safe. In the event of the owners of said reservoir, or any other person or persons, interfering with the water commissioner in the dis charge of said duty, the said water commissioner .shall call to his aid such persons as he deems necessary, and employ such force as the circumstances demand to enable him to comply with the requirements of this section. [L. '99, p. 315, 4. 3209. Complaint that reservoir is unsafe Duty of engineer. Sec. 45. Upon complaint being made to the state engineer by three or more persons residing or having property in such a loca- tion that their homes or property would be in danger of destruc- tion or damage in the event of a flood occurring on account of the breaking of the embankment of any reservoir within the state, that said reservoir is in an unsafe condition, or that it is being filled w r ith water to such an extent as to render it unsafe, it shall be the duty of the state engineer to forthwith examine said reservoir and determine the amount of water it is safe to im- pound therein. If upon such examination, the state engineer shall find that said reservoir is unsafe, or is being filled with water to such an extent as to render it unsafe, it shall be his duty to immediately cause said water to be drawn off from said reservoir, to such an extent as will, in his judgment, render the 19 same safe. If water is then flowing into said reservoir, he shall cause the same to be discontinued: [L. '99, p. 315, 5. 3210. Engineer may use force Violation of engineer's order. Sec. 4(5. The state engineer is hereby authorized and em I lowered to use such force as is necessary to perform the duties required of him in the preceding section, and to have and exer- cise all of the powers conferred upon the water commissioner by section 4 of this a<-t. If, after any of such reservoirs shall have been examined by said state engineer, the owners thereof, or any other person or persons, shall fill or attempt to fill them, ' or either of them to a point in excess of the amount the state engineer shall have determined to be safe, then it shall be the duty of the water commissioner of the district wherein such res- ervoir is located to proceed as is directed by section 4 of this act. [L. '!>!), p. 3i(>, $<;. [Section 4 above referred to is section 3208.] 3211. Expense of examination By whom paid. Sec. 47. The persons calling upon the state engineer to perform the duty required of him by section ."> hereof shall pay him mileage in ad- vance at the rate of ten cents per mile for each mile actually and necessarily traveled in going to and from said reservoir, and should the state engineer find upon examination that such reservoir is in an unsafe condition, the owners thereof shall be liable for all expenses incurred in such examination. [L. '99, p. 31(5, 7. [Section 5 above referred to is section 3209.] 3212. Appeal from decision of engineer. Sec. 48. In the event of either party being Dissatisfied with the decision of the state engineer, they may take an appeal to the county, or dis- trict court of the county wherein said reservoir is located, and said court shall hear and determine the matter summarily at the earliest practical time without written pleadings or the aid of a jury; subject to the right of either party to take an appeal or writ of error as in other civil cases; Provided., That the judg- ment of the state engineer shall control until final determina- tion of the cause. [L. '99, p. 316, 8. 3213. Owners liable for damages in case of breakage of reser- voir. Sec. 49. None of the provisions of this act shall be con- strued as relieving the owners of any such reservoir from the payment of such damages as may be caused by the breaking of the embankments thereof, but in the event of any such reservoir overflowing, or the embankments, dams or outlets breaking or washing out, the owners thereof shall be liable for all damage occasioned thereby. [L. '99, p. 310, 9. 3214. Violation of act Penalty Disposition of fines. See. 50. Any reservoir company failing or refusing, after ten days' notice in writing having been given, to obey the directions of the state engineer as to the construction or filling of any reservoir as herein provided, shall be subject to a fine of not less than fifty dollars, for each offense, and each day's continuance after time of notice has expired shall be considered a separate offense; such fines to be recovered by civil action in the name of the people, by the district attorney, upon the complaint of the state engineer, and in the county where the injury complained of oc- curred, the proceeds of all fines, after payment of costs and charges of the proceedings, shall be paid into the county treasury for the use -of the general fund of the county. [L. '99, p. 317, 10. 3215. Survey of reservoir site on arid land. Sec. 51. It shall be the duty of the county surveyor of each county within this state upon the request of the owner of ten or more acres of arid land lying in such county, to locate and survey an available site for a reservoir upon such land, such reservoir to be used for the storage of water to irrigate the land contiguous thereto and such reservoir to be of a capacity to hold sufficient water to properlv irrigate not less than ten acres of such land. [L. '03, p. 262, 1. 3216. Construction of reservoir County surveyor supervise. Sec. 52. Within thirty (30) days after such location and sur- vey by the county surveyor, the owner of such land shall begin the construction of such reservoir and shall work continuously thereon until the completion thereof and all of such w r ork of con- struction and the construction of such dam or dams as may be necessary, and the construction of* the outlet to such reservoir shall be done under the direction and supervision of such county surveyor. [L. '03, p. 262, 2. 3217. Completion Flat filed Contents. Sec. 53. Upon the completion of the reservoir it shall be the duty of the county surveyor to file with the board of county commissioners of such county, a map or plat of the land upon which such reservoir is located; describing such land by legal subdivisions and show- ing thereon the name of the owner, the number of acres of arid land contiguous to such reservoir claimed by such owner; the size or water capacity in cubic feet of such reservoir; the num ber of acres of land capable of being irrigated by such reservoir ; the source and means of supplying such reservoir with water, and indicating the point of location upon the land of such reser- voir. [L. '03, p* 263, 3. 3218. Approval of plat Duty of owner. Sec. 54. It shall be the duty of such board of county commissioners to, within sixty 21 (60) days after the filing of such map or plat, to approve the same by resolution spread upon the records of such board. That it shall be the duty of such owner or his tenant, to use such reser- voir and keep the same in good repair and in a safe condition. [L. '03, p. 203, 4. 3219. Inspection Notice to owner Failure .to repair. Sec. 55. It shall be the duty of the county surveyor to annually inspect each reservoir within his county so constructed under the provisions of this act, and he shall file with the board of county commissioners a report in writing showing the condition of such reservoir and a statement as to whether or not such reservoir was being used during the year of such inspection for the purposes contemplated by this act; and should he find any such reservoir, or dam or outlet thereof, in an unsafe and dan- gerous condition he shall in writing so notify the owner or tenant thereof as provided in section three hereof; and should such owner or his tenant fail or refuse within the aforesaid period of thirty (30) days to place such reservoir, dam and outlet in a safe and proper condition, then and in that event it shall be the duty of the said county survey/)!' to immediately let out and release under his direct supervision any and all waters that may Jiave accumulated in such reservoir; and the said county sur- veyor shall within ten (10) days thereafter file with the board of county commissioners a report in writing of his acts in the premises. [L. '03, p. 263, 5. [Section 3 above referred to is section 3217.] 3220. Compensation of county surveyor By whom paid. Sec. 56. The county surveyor shall be paid for his services at the time of making such survey and location, the sum of ten (10) dollars and all the necessary traveling expenses, and upon the completion of such reservoir and the filing of the map or plat specified in section 3 hereof he shall be paid the further sum of five (5) dollars and all necessary traveling expenses and su- perintending the construction of such reservoir, dam and outlet, and such payments and traveling expenses shall be borne by said owner or tenant of such reservoir and land; and for an- nually inspecting and filing his report of the condition of such reservoir within his county as specified in section 4 hereof, the county surveyor shall be paid the sum of five (5) dollars for each of such reservoirs so inspected and so reported upon, out of the general fund of such county. [L. '03, p. 264, 6. [Sections 3 and 4 above referred to are sections 3217 and 3218.] 3221. Damages. Sec. 57. County surveyors and members of boards of county commissioners within this state shall not be liable in damages for any act done by them in pursuance of the provisions of this act. [L. '03, p. 264, 7. 22 3222. Exchange of water, less seepage. Sec. 58. That when- ever any person or company shall divert water from one public- stream and turn it into another public stream, such person or company may take out the same amount of water again, less a reasonable deduction for seepage and evaporation, to be de- termined by the state engineer. [L. '1)7, p. 176, 1. [See also section 3232.] 3223. Must maintain flumes and register water. Sec. 59. Any person or company transferring water from one public stream to another shall be required to construct and maintain under the direction of the state engineer measuring flumes or weirs and self-registering devices at the point where the watev leaves its natural watershed and is turned into another, and also at the point where it is finally diverted for use from the public stream. [L. '97, p. 176, 2. [See also section 3249.] [Failure to maintain 3249.] 3224. Water commissioner keep record. Sec. 60. It shall be the duty of the water commissioner of the district in which the water is used to keep a record of the amount of water so turned into his district from any other district. [L. ? 97, p. 176, O o. 3225. Reservoirs and ditches may exchange, Sec. 61. When the rights of others are not injured thereby, it shall be lawful for the owner of a reservoir to deliver stored water into a ditch entitled to water or into the public stream to supply appropria- tions from said stream, and take in exchange therefor from the public stream higher up an equal amount of water, less a reason- able" deduction for loss, if any there be, to be determined by the state engineer; Provided, That the person or company desiring such exchange shall be required to construct and maintain under the direction of the state engineer measuring flumes or weirs and self-registering devices at the point where the water is turned into the stream or ditch taking the same or as near such point as is practicable so that the water commissioner may readily determine and secure the just and equitable change of water as herein provided. [L. '97, p. 177, 4. [See also section 3202.] 3226. Changing point of diversion Petition Practice and pro- cedure. Sec. 62. Every person, association or corporation de- sirous of changing in whole or in part the point or points of diversion of his or its right to use water from any of the streams of the state, shall present a petition to the district court ""from which the original decree issued, whether the change be from one district to another or not; praying that such change be granted. The practice and procedure upon all petitions, save as herein provided, shall be the same as if the petition were for an original statutory decree; and if the change be from one dis- trict to another, the court in which the petition is filed shall re- quire notice and service in each district intervening between the original and the new points of diversion in the manner as now provided by law for statutory water adjudications in said several districts, save that all process or notice shall be issued from and returnable to -the court in which the petition is filed as aforesaid. [L. '03, p. 278. 1. 3227. Notice to parties affected When change allowed. Sec. 63. The court shall require proof that all parties who may be affected by the change have bee'n duly notified in' the proceeding, as in the case of an original adjudication, and shall hear evi- dence to determine whether such change will injuriously affect the vested rights of others in and to the use of water, and a decree shall be entered permitting the change as prayed for, unless it appear that such change will injuriously affect the vested rights of others; and .if such injury appear, the court shall decree the change only upon such terms and conditions as may be necessary to prevent such injurious effect, or to pro- tect {he parties affected or if impossible so to do, may deny said application. [L. '03, p. 278, 2. [No further publication required in proceedings after decree entered. Sec- tion 3289.] 3228. Several applications in one Consolidation Process. Sec. 64. Applications to change two or more points of diversion to the same common point may be embraced in one petition, or if separately made in the same court, may be consolidated; and petitions separately filed in the same court for changes to several points may be consolidated by the court or judge for notice, hearing or otherwise, if it appear practicable so to do; and the court or judge shall have power to extend the time for service, notice and appearance, and to make all necessary or expedient rules in the proceeding as in the case of a statutory water adjudication. [L. '03, p. 279, 3. 3229. Certified copy of decree filed Notice of change. Sec. 65. Upon the granting of a decree of change, the petitioner desirous of making the change, shall cause to be prepared cer- tified copies of the decree, and shall cause filings thereof to be made with the county clerk of the county in which the original point of diversion is located, and with the county clerk of the county in which the new point of diversion is, or is to be located, and also in the office of the state engineer. Thereupon the change decreed shall be recognized in the distribution of water, the priority rights being allotted according to the terms of the said decree, and the state engineer shall immediately issue notices 24 to that effect to the water commissioners in the water districts affected, and to the division superintendent or superintendents in said divisions. [L. '03, p. 379, 4. [Office of division superintendent abolished and division engineers provided in their place. Section 3335.] 3230. Change to other district Copy of decree filed. Sec. 66. In case a change be decreed from one district to another, the petitioner shall file a certified copy of the decree of change in the court having jurisdiction Of the statutory water adjudi- cation in the district of the new point of diversion, and there- upon, on motion, the court in which the copy is so filed, shall order a record of the decree of change, and the original decree theretofore entered in said court shall accordingly stand modified as to the matters contained in the said decree of change. [L. '03, p. 280, 5. 3231. Re-arguments, reviews and appeals. Sec. 67. Re-argu- ments and reviews of and appeals from decrees entered here- under may be had as in the, case- of a statutory water adjudica- tion; Provided, hoicever, They be prayed within thirty days from the time of entering the decree complained of. [L. '03, p. 280, 6. [Sections 3226-3231 supersede sections 1 and 2, p. 235, L. '99, of which act section 3232 was section 3.] 9 3232. Owner may exchange or loan water right. Sec. 68. It shall be lawful, however, for the owners of ditches and water rights taking water from the same stream, to exchange with, and loan to, each other, for a limited time, the water to which each may be entitled, for the purpose of saving crops or of using the water in a more economical manner ; Provided, That the owner or owners making such loan or exchange, shall give notice in writing signed by all the owners participating in said loan or exchange, stating that such loan or exchange has been made, and for what length of time the same shall continue, whereupon said water .commissioner shall recognize the same in his distri- bution of water. [L. '99, p. 236, 3. II. DUTIES OF OWNERS. Section. Section. 3233. Owners shall maintain 3248. Water e m bankments Tail ditch. 3234. Vested rights n o t im- 3249. paired. 3235. Owner of ditch crossing highway must maintain bridge. 3236. Ditch must be bridged in 3250. three days Duty of su- pervisor. 3251. 3237. Proceedings against own- er for payment Dam- ages. 3252. 3238. Owner of ditch must pre- vent waste. 3253. 3239. Running excess of water forbidden. 3240. Penalty for violation of 3254. this act. 3241. When ditches in cities 3255. must be covered 3242. Head of ditch to be lat- 3256. ticed. 3257. 3243. Penalty for failure to cover and lattice. 3258. 3244. Owner maintain headgate Size of timbers. 3259. 3245. Same Liability of owner for neglect or refusal. 3260. 3246. Owner maintain head- gates and wastegates Effect of failure. 3261. 3247. Provide locks for head- gate Effect of failure. not delivered if owner does not maintain headgate and weirs. Owners of ditch or reser- voir transferring water must maintain headgate and weirs Effect of failure. Rating tables furnished commissioners. When water not to be stored in reservoirs Gauge rods. Control of headgates and measuring weirs. Survey of reservoirs Re- port Gauge rods Fail- ure to comply. Ditch owners provide flow on demand of users. Ditches to be kept in re- pair Outlets. Measurement of water. Penalty for refusal or neglect to deliver water. Water commissioner measure water Failure. Jurisdiction of justice of the peace. No person to receive more water than he is entitled to. Duty of party receiving more water than he is entitled to. 3233. Owner shall maintain embankments Tail ditch. Sec. 69. The owner or owners of any ditch for irrigation or other purposes, shall carefully maintain the embankments thereof, so that the waters of such ditch may not flood or damage the premises of others, and shall make a tail ditch, so as to return the water in such ditch with as little waste as possible into the stream from which it was taken. [G. S., 1728. [The above section is taken from G. S., '83, which gives its origin as L. '72, p. 144, section 1 and L., '76, p. 78, section 2.] 3234. Vested rights not impaired. Sec. 70. Nothing in this chapter contained shall be so construed as to impair the prior vested rights of any mill or ditch owner or other person to use the waters of any such water course. [G. S., 1729; G. L., 1379; R, S., p. 364, 8. 3235. Owner of ditch crossing highway must maintain bridge. See. 71. Any ditch company constructing a ditch, or any individual having ditches for irrigation, or for other purposes, 26 . wherever the same be taken across any public highway or public traveled road, shall put a good substantial bridge, not less than fourteen feet in breadth, over such watercourse where it crosses said road. [G. S., 1730; G. L., 1381; K, S., p. 364, 10. 3236. Ditch must be bridged in three days Duty of supervisor. Sec. 72. When any such ditch or watercourse shall be con- structed across any public traveled road, and not bridged within three days thereafter, it shall be the duty of the supervisor of the road district to put a bridge over said ditch or watercourse, of the dimensions specified in section 10 of this chapter, and call on the owner or owners of the ditch to pay the expenses of con- structing such bridge. [G. S., 1731; G.^ L., 1382; E. S., p. 364, 11. [Section 10 referred to in last above section is section 3235.] [Penalty for owner failing to place bridge over ditch, section 5829.] 3237. Proceedings against owner for payment Damages. Sec. 73. If the owner or owners of such ditch refuse to pay the bill of expenses so presented, the supervisor may go before any justice of the peace in the township or precinct, and make oath to the correctness of the bill, and that the owner or owners of the ditch refuse payment; and thereupon such justice of the peace shall issue a summons against such owner or owners, requiring him or them to appear and answer to the complaint of such supervisor in an action of debt for the amount sworn to be due, such summons to be made returnable and served, and proceedings to be had thereon as in other cases; and in case judgment shall be given against such owner or owners, the jus- tice shall assess, in addition to the amount sworn to be due as aforesaid, the sum of ten dollars, as damages arising from the delay of such owner or owners, such judgment to be collected as in other cases, and to be a fund in the hands of the supervisor of roads, for the repairs of roads in such precinct or district. [G. S., 1732; G. L., 1383; R, S., p. 365, 12. [For liability of co-owners in caring for ditch and their lien for expense see se'ctions 4051-4060.] [Ditch companies must keep their ditch in repair. Section 993.] 3238. Owner of ditch must prevent waste. Sec. 74. The owner of any irrigating or mill ditch shall carefully maintain and keep the embankments thereof in good repair, and prevent the water from wasting. [G. S., 1733; G. L., 1385; L. '76, p. 78, 1. [See also' section 3233.] 3239. Running excess of water forbidden. Sec. 75. During the summer season it shall not be lawful for any person or persons to run through his or their irrigating ditch any greater quantity of water than is absolutely necessary for irrigating his or their said land, and for domestic and stock purposes ; it being the intent and meaning of this section to prevent the wasting and useless discharge and running away of water. [G. S., 1734; G. L., 1386; L. '76, p. 78, 2. 3240. Penalty for violation of this act. See. 70. Any person who shall wilfully violate any of the provisions of this act shall, on conviction thereof before any court having competent juris- diction, be fined in a sum of not less than one hundred (100) dollars. Suits for penalties under this act shall be brought in the name of the people of the state of Colorado. [G. S., 1735; G. L., 1387; L. '76, p. 78, 3. [The act above referred to embraces sections 3238-3240.] 3241. When ditches in cities must be covered. Sec. 77. That every corporation and company, whether created by special act, or organized under the general incorporation laws of this state, and every partnership, person or persons who now, or may at any time hereafter, own or control any canal or ditch, or any part thereof, being twc feet in Avidth or over, and carrying water to the depth of twelve inches or over, which canal or ditch, or any part thereof, is Avithin the Corporate limits of any city denominated in the laAv as of the first class, or any city existing by special charter of a population equal to or exceeding said cities of the first class, or any of the additions thereto, shall, at their OAvn expense, within sixty days after this act shall have taken effect confine, flume, and cover over, all or any part of such canal or ditch, whether located on or across private property, public highways or alleys in said city or additions thereto, in a reasonable and sufficient manner, and with such materials as will render such fluming or covering safe and a sure protection to the lives and property of the inhabitants of said city ; and any such corporation, company, partnership, person or persons, shall at all times thereafter keep and maintain any and all such structures, confining, fluming and coA 7 ering of such canal or ditch in good order and repair, at their own expense. [L. '87, p. 65, 1. [Cities of the first class embrace those with a population over 15,000, section 6532.] 3242. Head of ditch to be latticed. Sec. 78. Such corpora- tion, company, partnership, person or persons, shall, at their own expense, safely and securely lattice or slat the head of such flume or covering with proper materials, so that persons or animals cannot accidentally enter such flume or covering at the head thereof, and pass or be carried down the current of said canal or ditch, and shall thereafter maintain and keep the game in good order and repair, at their own cost and expense. [L. '87, p. 66; 2. 28 3243. Penalty for failure to cover and lattice. Sec. 79. If any such corporation, company, partnership,, person or persons, shall fail or refuse to comply with any of the provisions of the two preceding sections, such corporation, company, partnership, person or persons, shall forfeit and pay to the county, for the use of the common school fund, the sum of fifty dollars for each and every day such failure or refusal shall continue; to be recovered by a civil action in the name of the people of the state of Colorado, in any court of competent jurisdiction; Pro- vided, That nothing in this act shall be construed to bar an action for special damages by any person who shall have suffered such damages by reason of any failure to comply with any of the provisions of. this act. [L. '87, p. 66, 3. 3244. Owner maintain headgate Size of timbers. Sec. 80. That the owner or owners of every irrigating ditch, flume or canal, in this state, shall be required to erect and keep in good repair a headgate at the head of their ditch, flume or canal. Such headgate, together with the necessary embankments, shall be of sufficient height and strength to control the water at all ordinary stages. The framework of such headgate shall be con- structed of timber not less than four inches square, and the bot- tom, sides, and gate or gates, shall be of plank, not less than two inches in thickness. [G. S., 1736; L. '81, p. 165, 1. [See also section 3248.] 3245. Same Liability of owner for neglect or refusal. Sec. 81. Owners of all ditches shall be liable for all damages result- ing from their neglect or refusal to comply with the provisions of section one of this act. [G. S., 1737; L. '81, p. 165, 2. [Section 1 above referred to is section 3244.] 3246. Owner maintain headgates and wastegates Effect of failure. Sec. 82. All persons, associations or corporations who have heretofore or who may hereafter divert water for purposes of irrigation from any of the public streams of the state, shall erect and maintain headgates and wastegates in connection therewith, and in case of failure or neglect, or refusal to do so, after five days' notice has been given by the water commissioner or state engineer, then said headgates shall be constructed by the water commissioner of the district within which said ditch, canal or conduit may be located, and if, upon demand, the owner or owners of said ditch, canal or conduit shall neglect or refuse to pay the expenses thereof, then the said water commissioner shall take such proceedings to recover the same as is now pro- vided for by sections seventeen hundred and thirty, seventeen hundred and thirtv one and seventeen hundred and thirtv-two of the general statutes of 1883, in the case of failure to build and maintain bridges. [L. '89, p. 161, 1. [G. S., sections 1730, 1731 and 1732 above referred to are sections 3235, 3236 and 3237 respectively.] , 3247. Provide locks for headgate Effect of failure. Sec. 83. All persons, associations or corporations shall put and keep suitable locks and fastenings on their headgates, where water is conducted from the public streams or heads of supply, and if said persons, associations or corporations refuse or neglect to provide locks and suitable fastenings for said headgates, after five days' notice by the water commissioner of the district, or by the state engineer, it is made the duty of the water commis- sioner of the water district, and its superintendent, to provide suitable locks and fastenings, and if the owner or owners of said ditch, canal or conduit shall neglect or refuse to pay the ex- penses thereof, the water commissioner shall take such proceed- ings to recover the same as are provided in section one of this act; the keys of said locks to be under the control and in pos- session of the water commissioner of the district during the season of irrigation or domestic distribution of water. [L. '89, p. 161, 2. [Section 1 above referred to is section 3246.] 3248. Water not delivered when owner does not maintain head- gates and weirs. Sec. 81. Whenever any owner or owners of any irrigation ditch, canal, tiuine or reservoir in this state taking water from any stream, shall fail to erect or maintain in good repair, at the point of intake of such ditch, canal, flume or reser- voir, a suitable and proper headgate, and measuring flume or Weirs, together with the necessary embankments therefor, of sufficient height and strength to control the water at all ordinary stages, with a frame work constructed of timber not less than four inches square at the bottom, sides and gate or gates of plank not less than two inches in thickness, then the state engineer or superintendent of irrigation shall, upon ten days' previous notice in writing duly served upon the owner or owners of such irriga- tion ditch, canal, flume or reservoir, or upon any agent or employe representing or controlling the same, refuse to deliver to such owner or owners of such irrigating ditch, canal, flume or reservoir, any water from such stream, until such owner or owners shall cause to be erected or repaired the headgate, head- gates or measuring flumes of such ditch, canal, flume or reservoir. [L. '01, p. 193, 1. [See also section 3244.] [Office of superintendent of irrigation abolished and division engineers provided in their place. See section 3335.] 30 3249. Owner of ditch or reservoir transferring water must maintain headgate and weirs Effect of failure. Sec. 85. When- ever the owner or owners of any irrigation ditch, canal or reser- voir transferring water from one public stream to another, or from a reservoir, ditch or flume to a stream, in order that the same ma}' be diverted therefrom for irrigation or any other purposes, shall fail and neglect to construct suitable and proper measuring flumes or weirs for the proper and accurate determi- nation of the amount and volume of water turned into, carried through and diverted out of said public stream, then the state engineer or the superintendent of irrigation shall, upon five days' previous notice in writing duly served upon the owner or owners of any such irrigation ditch, canal or reservoir, or agent or employe thereof, so transferring water from one public stream to another, or from any ditch, canal or reservoir to a public stream for conveyance therethrough, refuse to allow to be taken and diverted therefrom, any water whatever on account of de- livery of water thereto, for such time and until such owner or owners shall cause to be erected or repaired such flumes or weirs at the point of delivery to and taking from said public stream so used as a conduit. [L. '01, p. 194, 2. [See also section 3223.] [See note, section 3248 as to superintendent of irrigation.] 3250. Eating tables furnished commissioners. Sec. 86. The state engineer or superintendent of irrigation shall rate the measuring flumes and \veirs referred to in sections 1 and 2 of this act, and shall supply the superintendent of the division and the water commissioner of the district in which such measuring flumes or weirs are located, with a rating table, which shall be used by them in measuring water flowing to and from such public stream. [L. '01, p. 194, 3. [Sections 1 and 2 above referred to are sections 3248 and 3249.] [See note, section 3248 as to superintendent of irrigation.] 3251. When water not to be stored in reservoirs Gauge rod. Sec. 87. The owners or possessors of reservoirs shall not have the right to impound any water whatever in such reservoir during the time that such water is required in ditches for direct irrigation or for reservoirs holding senior rights. A gauge rod shall be permanently fixed and maintained at the outlets of said reservoirs, and if any owner or possessor of any reservoir shall fail or refuse within thirty days after this act goes into effect, to provide, fix and maintain such gauge rod or rods, as aforesaid, then and in that event the owner or possessor of such reservoir shall not be entitled to impound any water whatever in said 31 reservoir or reservoirs until the provisions of this section are fully complied with. [L. -'01, p. 194, 4. 3252. Control of headgates and measuring weirs. Sec. 88. All headgates and measuring weirs used in connection with canals, flumes, ditches and reservoirs for the measuring and delivery of water therefrom and thereto, shall be under the supervision and control at all times of the state engineer, the superintendent of irrigation of the water division and the water commissioner of the water district wherein such headgate and measuring weirs are located. [L. '01, p. 195, 5. 3253. Survey of reservoirs Report Gauge rods Failure to comply. Sec. SO. The owner or owners of any reservoir situate upon or in the bed of any natural stream or through which any natural stream runs, for the purpose of storing water to be diverted at a point further down said stream, shall, at the ex- pense of the owner or owners, cause a complete survey of the contour lines of said reservoir to be made by the state engineer, and it shall be the duty of the state engineer to make such survey upon the request of the owner, which said contour lines shall be ascertained for at least every vertical foot in depth, and, in all cases where deemed necessary by the state engineer, for fractions of a foot; and a table to be prepared showing the num- ber of cubic feet, capacity of said reservoir for each foot in depth and fraction thereof; and a gauge rod placed in said reservoir, marked in correspondence with said contour line from which the amount of water stored in, or taken from, said reser- voir, may be ascertained. And in case of failure so to do, the said state engineer or superintendent of irrigation shall refuse to be allowed to be taken into, or diverted from, said reservoir, any water whatever; Provided, however, That in all cases where for any reason said state engineer may find it impracticable to make said survey, the said owner or owners of said reservoir may continue to store and deliver water upon. providing a suit- able and proper measuring flume or weir for the accurate ascer- tainment of the amount of water discharged from said reservoir. [L. '01, p. 195, G. 3254. Ditch owners provide flow on demand of users. Sec. 90. Every person or company owning or controlling any canal or ditch used for the purposes of irrigation and carrying water for pay. shall, when demanded by the users during the time from April 1, until November 1 in each year, keep a flow of water therein, so far as may be reasonably practicable for the purpose of irrigation, sufficient to meet the requirements of all such persons as are properly entitled to the use of water therefrom, to the extent, if necessary, to which such person may be entitled 32 to water, and no more; Provided, however. That whenever the rivers, or public streams or sources from which the water is obtained are not sufficiently free from ice, or the volume o1 water therein is too low and inadequate for that purpose, then such canal or ditch shall be kept with as full a flow of water therein as may be practicable, subject, however, to the rights ol priorities from the streams or other sources, as provided by law and the necessity of cleaning, repairing and maintaining the same" in good condition. [L. '93, p. 299, 1; amending L. '87 p. 304, 1. 3255. Ditches to be kept in repair Outlets. Sec. 91. Tin owners, or persons in control, of any canal or ditch used foi irrigating purposes, shall maintain the same in good order anc repair, ready to receive water by April 15, in each year, so fai as can be accomplished by the exercise of reasonable care anc diligence, and shall construct the necessary outlets in the banks of the canal or ditch for a proper delivery of the water to persons having paid up shares, or who have rights to the use of water Provided, hoivever, That a multiplicity of outlets in the cana or ditch shall at all times be avoided, so far as the same shal be reasonably practicable, and the location of the same shal be under the control of, and shall be at the most convenient anc practicable points consistent with the protection and safety o: the ditch for the distribution of water among the various claimants thereof; and such location shall be under the contro of a superintendent. [L. '87, p. 305, 2. [See also section 993.] 3256. Measurement of water. Sec. 92. It shall be the duf< of those owning or controlling such canals or ditches, to appoin a superintendent, whose duty it shall be to measure the watei from such canal or ditch through the outlets, to those entitlec thereto according to his or her pro rata share. [L. '87, p. 305, 3 3257. Penalty for refusal or neglect to deliver water. Sec. 93 Any superintendent, or any person having charge of the saic ditch, who shall wilfully neglect or refuse to deliver water, as in this act provided, or any person or persons w r ho shall preven or interfere with the proper delivery of water to the person 01 persons having the right thereto, shall be guilty of a misde meanor, and upon conviction thereof shall be subject to a fin< of not less than ten nor more than one hundred dollars for eacl offense, or imprisonment not exceeding one month, or by botl such fine and imprisonment; and the money thus collected shal be paid into the general fund of the county in which the misde meanor has been committed; and the owner or owners of sucl ditches shall be liable in damages to the person or persons de 33 prived of the use of the water to which They were entitled as in this act provided. [L. '87, p. 305. 4. 3258. Water commissioner measure water Failure. Sec. 94. Any water commissioner, or his deputy, or assistant, who shall wilfully neglect or refuse, after being called upon in accordance with section 1758 of the General Statutes of the state, to promptly measure water from the stream, or other source of supply, into the irrigating: canals or ditches, in his district, according to their respective priorities, to the extent to which water may be actually necessary for the irrigation of lands under, such canals or ditches, shall be deemed guilty of a misdemeanor, and shall be subject to the same penalty as provided in section 4 of this act. [L. '87, p. 305, 5. [G. S., section 1758 above referred to is section 3430.] [Section 4 above referred to is section 3257.] 3259. Jurisdiction of justice of the peace. Sec. 05. In all cases declared misdemeanors by this act, any justice of the peace of the county in which the offense was committed, may, upon complaint being made, as is now required by law, issue a war- rant directed to any proper officer of the county for the arrest of any person so charged with any misdemeanor, and upon the arrest of such person or persons, the justice of the peace before whom such person or persons may be brought for trial, shall hear and determine the cause and, if he find the accused guilty, shall assess the tine, and if imprisonment be a portion of the sentence, then to fix the term of imprisonment, or both, as pro- vided in section 4 of this act; Provided, The accused may have a trial by jury which shall be summoned as in cases before jus- tices of the peace for assault and battery. [L. '87, p. 306, 6. [For summoning jury see section 3S63.] [Section 4 above referred to is section 3257.] 3260. No person to receive more water than he is entitled to. Sec. 90. That it shall be the duty of every person, who is en titled to take water for irrigation purposes from any ditch, canal, or reservoir, to see that he receives no more water from such ditch, canal, or reservoir through his headgate, or by any ways or means whatsoever, than he is entitled to, and that he shall, at all times, take every precaution to prevent more water than he is entitled to, coming from such ditch, canal, or reservoir, upon his land. [L. '87, p. 312, 1. 3261. Duty of party receiving more water than he is entitled to. Sec. 97. That it shall be the duty of every such person, taking water from any ditch, canal, or reservoir, to be used for irrigation purposes, on finding that he is receiving more water from such ditch, canal or reservoir, either through his headgate, 34 or bv means of leaks, or by any means whatsoever, immediately to take steps to prevent his further receiving more water from such ditch, canal or reservoir, than he is entitled to, and if knowingly he permits such extra water to come upon his land, from such ditch, canal or reservoir, and does not immediately notify the owner or owners of such ditch, or take steps to pre- vent its further flowing upon his land, he shall be liable to any person, company or corporation, who may be injured by such extra appropriation of water, for the actual damage sustained by the party aggrieved; which damages shall be adjudged to be paid, together with the costs of suit, and a reasonable 'attorney's fee, to be fixed by the court and taxed with the costs. [L. '87, p. 312, 2. III. RATE OF CHARGE FOR WATER. Section. 3262. Regultaing charges Pe- tition Affidavits Pro- ceedings before commis- sioners. Powers and duties of com- missioners Hearing Order Existing con- tracts. Right to continue pur- chasing water S t o c k- holders Rights. 3265. County commissioners hear and consider appli- cations. Commissioners appoint day for hearing parties interested. 3263. 3264. 3266. 3268. 3269. 3270. 3271. 3272. 3273. 3274. 3275. Section. 3267. Hearing Order fixing date of hearing Service of order. Hearing Testimony Commissioners fix maxi- mum rate. False swearing. Repeal. Bonus deemed an extor- tionate rate Recovery. Penalty for collecting ex- cessive rate. Penalty for refusal to de- liver water. Action when corporation refuses to deliver water. "Person" defined Liabil- ity. 3262. Regulating charges Petition Affidavits Proceedings before commissioners. Sec. 98. The county commissioners of each county shall, at their regular January session in each year, hear and consider any and all applications which may be made to them by any party or parties interested in procuring water for irrigation by purchase from any ditch or reservoir furnishing and selling water or proposing to furnish water for sale, the whole or upper part of which shall lie in such county, which application shall be supported by such affidavit or affidavits as the applicant may see proper to present, showing reasonable cause for such board to proceed to fix the price of water to be thereafter sold from such ditch or reservoir, and if such board of commissioners shall, upon examination of such affidavit or affidavits, or from the oaths of witnesses in addition thereto, 35 find that the facts sworn to show the application to be in good faith, and that there is reasonable grounds to believe that un- just prices are, or are likely to be, changed for water from such ditch or reservoir, they shall enter an order fixing a day. not sooner than forty days thereafter, nor later than the third day of the next regular session of their board, when they will hear all parties directly or indirectly interested in said ditch or reservoir, or in procuring water therefrom for irrigation, who may appear, as well as all 'testimony by witnesses, or depositions taken on notice as hereinafter provided, touching the said ditch or reser- voir, and the cost of furnishing water therefrom, at which time all persons or corporations interested in said ditch or reservoir, as well as all interested in obtaining water therefrom, or in lands which may be irrigated therefrom, may appear by them- selves, their agents, or attorneys, and said commissioners shall then proceed to take action in the matter of fixing such price of water, provided the applicant shall, within ten days from the time of entering such order, cause a copy thereof, duly certified, to be delivered to the owner of such ditch or reservoir, if it be owned by one person, or each of the owners, if it be owned by several persons, or to the president, secretary or treasurer of the company, if it belongs to a corporation or association having such officers, or if such owner cannot be found, he shall cause such copy to be left at his usual place of residence, with some person or member of his family residing there, % aiid over four- teen years of age, and if such ditch officer cannot be found, he shall cause such copy to be left at the office or place of business of the company of which he is such officer, or at his residence, if such company have no place of business, and if such ditch is owned by several owners, not an incorporated company, it shall be sufficient to serve such notice by delivering one such copy each to a majority of them, and such applicant shall make af- fidavit of the manner in which such copy or copies have been served. Depositions mentioned in section one hereof, to be used before said commissioners, shall be taken before any officer in the state authorized by law to take depositions, upon reasonable notice being given to the opposite party of the time and place of taking such depositions. [G. S., 1738; L. '79, p. 94, 1. [See also Constitution, article 16, section 8.] [Section 1 above referred to is the above section.] [For officers before whom depositions may be taken see Code, section 376, p. 140.] [Sections 3262 and 3263 are .doubtless superseded by sections 3265-3268.] 3263. Powers and duties of commissioners Hearing Order Existing- contract. Sec. 99. Said board shall hear and examine all legal testimony or proofs offered by any of the parties inter- 36 ested as before mentioned, as well concerning the value of the construction of such ditch or reservoir as the cost and expense of maintaining and operating the same, and all matters which may affect the just price and value of water to be furnished therefrom ; and they shall have power to issue subpoenas to wit- nesses and compel their attendance, which subpoenas shall be served by the sheriff of the proper county when required; and also to compel the production of books and papers required for evidence in as full and ample a nianner as the district court mow has. They may adjourn the hearing from time to time to further the ends of justice or suit the general convenience of parties. Upon hearing and considering all the matters and facts involved in the case, the board of commissioners shall enter an order naming and describing the ditch or reservoir with suf- ficient certainty, and fixing a just price upon all water to be thereafter sold, which price shall not be thereafter changed oftener than once in two years ; Provided, That no price so fixed shall affect the rights of parties, or their lawful assignees or grantees, who may have contracts with the company, association or person owning such ditch or reservoir, or their lessees, grantees .or successors, nor the rights of such owners, lessees or grantees under such contract, nor shall it in any way affect or hinder the making of such contract. [G. S., 1739; L. '79, p. 90, 2. [See note section 3262.] 3264. Right to continue purchasing water Stockholders Rights. Sec. 100. Any person or persons, acting jointly or sev- erally, who shall have purchased and used water for irri- gation for lands occupied by him, her or them, from any ditch or reservoir, and shall not have ceased to do so for the purpose or with intent to procure water from some other source of supply, shall have a right to continue to purchase water to the same amount for his, her or their lands, on paying or tendering the price thereof fixed by the county commission- ers as above provided, or, if no price shall have been fixed by them, the price at which the owners of such ditch or reservoir may be then selling water, or did sell water during the then last preceding year. This section shall not apply to the case of those who may have taken water as stockholders or shareholders after they shall have sold or forfeited their shares or stock, un- less they shall have retained a right to procure such water by contract, agreement or understanding, and use between them- selves and the owners of such ditch, and not then to the injury of other purchasers of water from or shareholders in the same ditch. [G. S M 1740; L. ? 79, p. 96, 3. 37 3265. County commissioners hear and consider applications. Sec. 101. The county commissioners of each county shall, at their regular sessions in each year, and at such other sessions as they in their discretion may deem proper, in view of the irri- gation and harvesting season, and the convenience of all parties interested, hear and consider all applications which may be made to them by any party or parties interested, either in furnishing and delivering for compensation in any manner, or in procuring for such compensation, water for irrigation, mining, milling, manufacturing, or domestic purposes, from any ditch, canal, con- duit, or reservoir, the whole or any part of which shall lie in such county. Which application shall be supported by such affi- davits as the applicant or applicants may present, .showing rea- sonable cause for such board of county commissioners to proceed to fix a reasonable maximum rate of compensation for water to be thereafter delivered from such ditch, canal, conduit, or reser- voir, within such county. [L. '87, p. 291, 1. [Sections 3265-3268 doubtless supersede sections 3262 and 3263.] 3266. Commissioners appoint day for hearing parties interested. Sec. 102. Every such board of commissioners shall, upon ex- amination of such affidavit or affidavits, or from the oaths of witnesses in addition thereto, if they find that the facts sworn to show the application to be in good faith, and that there are reasonable grounds to believe that unjust rates of compensa- tion are, or are likely to be, charged or demanded for water from such ditch, canal, conduit, or reservoir, shall enter an order fix- ing a day not sooner than twenty days thereafter, nor later than the third day of the next regular session of their board, w T hen they will hear all parties interested in such ditch, or other waterworks as aforesaid, or in procuring w r ater therefrom, for any of the said uses, as well as all documentary or oral evidence or depositions, taken according to law, touching the said ditch, or other work as aforesaid, and the cost of furnishing water therefrom. [L. '87, p. 292, 2. 3267. Hearing Order fixing date of hearing Service of order. Sec. 103. At the time so fixed, all persons interested as afore- said, on either side of the controversy, in lands which may be irrigated from such ditch, or other work aforesaid, may appear by themselves, their agents, or attorneys, and said commission- ers shall then proceed to take action in the matter of fixing such rates of compensation for the delivery of water; Provided, The applicant or applicants (if the application be made by a party or parties as aforesaid desirous of procuring water), shall, within ten days from the time of entering the said order fixing the hearing, cause a copy of such order, duly certified, to be 38 delivered to the owner, or owners, of such ditch, canal, conduit, or reservoir, or to the president, secretary, or treasurer of the company, if it be owned by a corporation or association having such officers. If any such owner cannot be found, a copy shall be left at his usual place of abode, with some person residing there, over twelve years of age; and if such officer of any corpo- ration or association cannot be found, such copy shall be left at the usual place of business of the company of which he is an officer, or at his residence if such company have no place of business; and if such ditch, or other work aforesaid, shall be owned by several owners not being an incorporated company, it shall be sufficient to serve notice by delivering copies to a ma- jority of them. If the applicant be the owner or party control- ling such ditch, canal, conduit, or reservoir, such notice shall be given by causing printed copies of such order in hand bill form, in conspicuous type, to be posted securely in ten or more public places throughout the district watered from such ditch, or other work aforesaid (if the water be used for irrigation), and one copy shall be posted for every mile in length of such ditch; but if such ditch, or other work, be for the supply of water for mill- ing or mining, it shall be sufficient to serve such copy on the parties then taking water therefrom. The person or persons making such service or posting such printed copies, shall make affidavit of the manner in which the same has been done, which affidavit shall be filed with the said board of county commis- sioners. Depositions mentioned in section 2 hereof, to be used before said commissioners, shall be taken before any officer in the state authorized by law to take depositions, upon reasonable notice being given to the opposite party of the time and place of taking the same. [L. '87, p. 292, 3. [Section 2 referred to is section 3266.] [Officers before whom depositions may be taken, Code, section 376, p. 140.] 3268. Hearing Testimony Commissioners fix maximum rate. Sec. 104. Said board of commissioners may adjourn or post- pone any hearing from time to time as may be found necessary, or for the convenience of parties, or of public business; and they shall hear and examine all legal testimony or proofs offered by any party interested as aforesaid, as well concerning the orig- inal cost and present value of works and structure of such ditch, canal, conduit or reservoir, as the cost and expense of main- taining and operating the same, and all matters which may af- fect the establishing of a reasonable maximum rate of compen- sation for water to be furnished and delivered therefrom; and they may issue subpoenas for witnesses, which subpoenas shall be served bv the sheriff of the county, who shall receive the law- 39 ful fees for all such service; and said board may also issue a subpoena for the production of all books and papers required for evidence before them. Upon hearing and considering all the evidence and facts, and matters involved in the case, said board of commissioners shall enter an order describing the ditch, caual, conduit, reservoir, or other work in question, with suffi- cient certainty and fixing a just and reasonable maximum rate of compensation for water to be thereafter delivered from such ditch or other work as last aforesaid, within the county in which such commissioners act, and such rate shall not be charged within two years from the time when they shall be so fixed, unless upon good cause shown. The district court of the proper county, or the judge thereof in vacation, may, in case of refusal to obey the subpoena of the board of county commissioners, com- pel obedience thereto, or punish for refusal to obe;^ aftet hear- ing, as in cases of attachment, for contempt of such district court. [L. '87, p. 293, 4. [Doubtless word "charged" in line Ifi, above, should read "changed."] 3269. False swearing. Sec. 105. Every person who shall swear or affirm falsely in any matter, or testify falsely after being duly sworn or having affirmed as a witness in any pro- ceeding provided for in this act, shall be deemed guilty of per- jury, and on conviction shall be punished accordingly. [L. '87, p. 294, 5. [Punishment for perjury. Section 1716.] 3270. Repeal. Sec. 106. All acts and parts of acts incon- sistent with the provisions of this act are hereby repealed, but such repeal shall not work any interference with any proceeding by any board of county commissioners now pending, saving that any such proceeding may, at the request of either party, be car- ried on to completion under the provisions hereof. [L. '87, p. 294, 6. [Does this repeal sections 3262-3264?] 3271. Bonus deemed an extortionate rate Recovery. Sec. 107. It shall not be lawful for any person owning, or controlling, or claiming to own or control any ditch, canal or reservoir, car- rying or storing, or designed for the carrying or storing of any water taken from any natural stream or lake within this state, to be furnished or delivered for compensation for irrigation, mining, milling or domestic purposes, to persons not interested in such ownership or control, to demand, bargain for, accept or receive from any person who may apply for water for any of the aforesaid purposes, any money or other valuable thing what- soever, or any promise or agreement therefor, directly or in- directly, as royalty, bonus, or premium prerequisite or condition 40 precedent to the right or privilege of applying, or bargaining for, or procuring such water. But such water shall be furnished, carried and delivered upon payment or tender of the charges fixed by the county commissioners of the proper county, as is, or may be, provided by law. Any and all moneys, and every valuable thing, or consideration of whatsoever kind, which shall be so, as aforesaid, demanded, charge'd, bargained for, accepted, received, or retained, contrary to the provisions of this section, shall be deemed and held an additional and corrupt rate, charge, or consideration for the water intended to be furnished and de- livered therefor, or because thereof, and wholly extortionate and illegal; and when paid, delivered, or surrendered, may be recov- ered back by the party paying, delivering, or surrendering the same from the party to whom, or for whose use, the same shall have been paid, delivered, or surrendered, together with cosis of suit, including reasonable fees of attorneys of plaintiff, by proper action in any court having jurisdiction. [L". 'ST. p. 308, 1. 3272. Penalty for collecting excessive rate. Sec. 108. Every person owning or controlling, or claiming to own or control, any ditch, canal or reservoir, such as is mentioned in the first section of this act, who shall, after demand in writing made upon him for the supply or delivery of water for irrigation, mining, milling or domestic purposes, to be delivered from the canal, ditch or reservoir, owned, possessed or controlled by him, and after tender of the lawful rate of compensation therefor, in lawful money, demand, require, bargain for, accept, receive or retain from the party making such application, any money or other thing of value, or any promise or contract, or any valuable con- sideration whatever, as such royalty, bonus, premium, prerequi- site or condition precedent, as is by the provisions of this said first section prohibited, shall be deemed guilty of a misdemeanor, and on conviction thereof, shall be punished by a fine of not less than one hundred dollars, nor more than five thousand dollars, or imprisonment for a term not less than three months nor more than one year, or both such fine and imprisonment, in the discretion of the court. [L. '87, p. 309, 2. [Section 1 referred to above is section 3171.] 3273. Penalty for refusal to deliver water. Sec. 109. Every person owning or controlling, or claiming to own or control, any ditch, canal or reservoir, such as is mentioned in the first section of this act, who shall, after demand in writing, made upon him for the supply or delivery of water for irrigation, mining, milling . or domestic purposes, to be delivered from the canal, ditch or reservoir, owned, possessed or controlled by him, and after 41 tender of the lawful rate of compensation therefor, in lawful monev. refuse to furnish or carry and deliver from such ditch, canal or reservoir, any water so applied for, which water can or may be by use of reasonable diligence in that behalf, and within the carrying or storage capacity of such ditch, canal or reservoir, be lawfully furnished and delivered, without infringe- ment of prior rights, shall be deemed guilty of a misdemeanor, and upon conviction thereof, shall be punished by fine of not less than one hundred dollars, nor more than five thousand dol- lars, or imprisonment for a term of not less than three months, nor more than one year, or both such fine and imprisonment, in the discretion of the court. [L. '87, p. 309, 3. [Section 1 referred to above is section 3271.] [When ditch company must furnish water. Section 992.] 3274. Action when corporation refuses to deliver water. Sec. 110. When any corporation, in defiance or by attempted evasion of the provisions of this act, shall, after tender of the compensa- tion hereinbefore provided for, refuse to deliver water, such as is mentioned in the third section of this act, to any person law- fully entitled to apply therefor, it shall be the duty of the attor- ney general, upon request of the county commissioners of the proper county, or upon his otherwise receiving due notice thereof, to institute and prosecute to judgment and final determination, proceedings in quo warranto, for the forfeiture of the corporate rights, privileges and franchises of any such corporation so offending, or by mandamus or other proper proceedings to com- pel it to its duty in that behalf. [L. '87, p. 310, 4. [Section 3 referred to above is section 3273.] 3275. "Person" defined Liability. Sec. 111. The word "Person," as used in this act, shall include corporations and associations, and the plural as well as the singular number. And every officer- of a corporation, or member of an- association, or co-ownership, and every agent violating any of the provisions of this act, shall be liable to restore the unlawful consideration extorted, and be punishable under the penal provisions of this act, the same as if the thing done in disobedience to its provisions were done for his own sole benefit and advantage. [L. '87, p. 310. 85. 42 IV. ADJUDICATION OF PRIORITIES. A. PROCEEDINGS BEFORE COURT. 3276-3290. B. PROCEEDINGS BEFORE KEFEREE. 3291-3306. C. APPEALS. 3307-3312. D. GENERAL PROVISIONS. 3313-3320. A. PROCEEDINGS BEFORE COURT. Section. 3285. Copy of decree Authority of commissioner Re- cording Copy Evi- dence. 3286. Clerk publish n o t i c e Copies posted. 3287. Proof of publication and posting copies E n t r y by clerk. 3288. Notice served on all parties H o w served Notice by mail. 3289. After decree entered no further publication re- quired in subsequent proceedings, unless. 3290. Court number all ditches and reservoirs Number appropriations. Section. 3276. Adjudication of irrigation priorities Jurisdiction of court. 3277. Filing statement of claim Contents. 3278. Secretary of state make publication Publish- er's certificate. 3279. Secretary's certificate - Where filed Effect. 3280. Adjudication of priorities other than irrigation Petition. 3281. Court number water rights. 3282. Protection of vested rights. 3283. Distribution by water commissioner. 3284. Petition to adjudicate Order Hearing De- cree C ertificate by clerk. 3276. Adjudication of irrigation priorities Jurisdiction of courts. Sec. 112. For the purpose of hearing, adjudicating and settling all questions concerning the priority of appropriation of water between ditch companies and other owners of ditches drawing water for irrigation purposes from the same stream or its tributaries within the same water district, and all other questions of law and questions of right growing out of or in any way involved or connected therewith, jurisdiction is hereby vested exclusively in the district court of the proper county; but when any water district shall extend into two or more counties, the district court of the county in which the first regu- lar term after the first day of December in each year shall soonest occur, according to the law then in force, shall be the proper court in which the proceedings for said purpose, as here- 43 inafter provided for, shall be commenced; but where said pro- ceedings shall be once commenced, by the entry of an order appointing a referee in the manner and for the purpose herein- after in this act provided, such court shall thereafter retain ex- clusive jurisdiction of the whole subject until final adjudication thereof is had, notwithstanding any law to the contrary now in force. [G. S., 1762; L. '79, p. 99,' 19. [Adjudication of priorities other than irrigation. Section 3280.] 3277. Filing statements of claim. Contents. Sec. 113. In order that all parties may be protected in their lawful rights to the use of water for irrigation, every person, association or cor- poration owning or claiming any interest in any ditch, canal or reservoir, within any water district, shall, on or before the first day of June, A. I). 1881, file with the clerk of the district court having jurisdiction of priority of right to the use of water for irrigation in such w r ater district, a statement of claim, under oath, entitled of the proper court, and in the matter of priorities of water rights in district number , as the case may be, which statement shall contain the name or names, together with the post-office address of the claimant or claimants claiming owner- ship, as aforesaid, of any such ditch, canal or reservoir, the name thereof (if any), and, if without a name, the owner or owners shall choose and adopt a name, to be therein stated, by which such ditch, canal or reservoir shall thereafter be known, the description of such ditch, canal or reservoir as to location of headgate, general course of ditch, the name of the natural stream from which such ditch, canal or reservoir draws its supply of water, the length, width, depth and grade thereof, as near as nmy be, the time, fixing a day, month and year as the date of the appropriation of water by original construction, also by any enlargement or extension, if any such thereof may have been made, and the amount of water claimed by or under such con- struction, enlargement or extension, and the present capacity of the ditch canal or feeder of reservoir, and also the number of acres of land lying under and being or proposed to be irrigated by water from such ditch, canal or reservoir. Said statement sliall be signed by the proper party or parties. [G. S., 1763; L. '81, p. 142, 1. [Claim must be filed before party can offer evidence, see section 3316.] 3278. Secretary of state make publication Publisher's certifi- cate. Sec. 114. The secretary of state shall, without delay, after the passage of this act, cause a certified copy of the foregoing section, giving the date of the approval of this act, to be published in one of the public newspapers published- in such county in which part or portion of any water district is or shall be established 44 by law at the time of such publication; and said section one shall be published as aforesaid, once in each and every week con- tinuously in said paper until said first day of June, A. D. 1881, and in case in the meantime any one of said papers shall cease to be published, then such publication shall be made in some other paper in same county, (if any), and on conclusion of such pub- lication such publisher of such paper shall deliver to the secre- tary of state his sworn certificate of publication in duplicate showing that such publication has been made in his paper in compliance with the preceding section hereof, and stating the first and last day of such publication; and he shall thereupon be entitled to receive from the secretary of state a certificate of the amount due him for such publication, on presentation of which to the auditor of state he shall draw his warrant for the amount in favor of the holder on the state treasurer, who shall pay the same according to law. [G. S., 1764; L. '81, p. 143, 2. [Section 1 referred to above is section 3277.] 3279. Secretary's certificate Where filed Eifect Sec. 115. The secretary of state shall file one of said duplicate certificates of publication with the clerk of the district court having juris- diction of priority of rights to use of water for irrigation in the proper water district, certifying officially that such publication therein mentioned was duly authorized by him, and said clerk shall file the same w r ith the statement of claim provided for in section one thereof, and such certificate of such publisher or any additional certificate of same publisher to same fact in case of loss of the original, shall be proof of the proper publication of said section in the paper therein mentioned. Said secretary of state shall also certify to such clerk of the several district courts having jurisdiction of said priorities of right to use of said water for irrigation throughout the state, the names of the newspapers, and of the county in which he caused such publication to be made, and that the duplicate certificate of publication of the publisher, as herein required are on file in his office, and said certificate shall be sufficient proof of the publication of said sec- tion one hereof, as by this act required. [G. S., 1765; L. '81, p. 144, 3. [Section 1 referred to above is section 3277.] 3280. Adjudication of priorities other than irrigation Peti- tion. Sec. 116. That the owner or owners of any water rights derived from any natural stream, water-course or any other source, acquired by appropriation and used for any beneficial purpose other than irrigation, may have his or their right thereto established and decreed by the district court having jurisdiction of the adjudication of water rights for irrigation purposes in the water district in which said water rights are situated, by 15 petitioning said court in the same manner and by complying with the procedure and the requirements of the law now appli- cable to the adjudication of water rights for irrigation purposes. [L. '03, p. 297, 1. [Adjudication of priorities for irrigation. Section 3276.] 3281. Court number water rights. Sec. 117. The said dis- trict court shall number, consecutively and chronologically, t all such water rights similar to the system of numbering priorities for irrigation purposes, designating the amount of each appro- priation in cubic feet per second of time; and shall specifically state the particular purpose for which said appropriation is granted, that is, whether the same is for power or manufactur- ing purposes, domestic use, storage purposes, or any .other bene- ficial use of said waters. All of such appropriations, other than appropriations for irrigation purposes, shall be designated by and in the one series of consecutive numbers herein provided for. [L. '03, p. 297, 2. 3282. Protection of vested rights. Sec. 118. In determin- ing such water rights, it shall be the duty of the court to recog- nize and protect, as far as possible under the constitution of this state and the decisions of the appellate courts applicable thereto, the vested rights of all appropriations of water for irrigation purposes, especially where such rights have been duly adjudicat- ed by the said court in the statutory proceeding for the determin- ation of the priority of rights to the use of water for. irrigation purposes. [L. '03, p. 298, 3. 3283. Distribution by water commissioner. Sec. 119. It shall be the duty of the water commissioner in each water district to distribute the waters decreed hereunder and to protect the priority rights of the respective owners of water rights for any beneficial purposes from and after their determination by said court, in the same manner as he is now required by law to super- intend the distribution of waters throughout his district for irriga- tion purposes, and he shall receive like compensation for such services from the county in which such water rights are situated ; and other counties embraced in his water district shall not be liable for any portion of such service; Provided, further, That no water commissioner or irrigation official shall make any di- vision or distribution of any water between the users thereof from the same ditch or reservoir. [L. '03, p. 298, 4. 3284. Petition to adjudicate Order Hearing tfecree Cer- tificate by clerk. Sec. 120. When, at any time after the first day of June, A. D. 1881, any one or more persons, associations or corporations, interested as owners of any ditch, canal or res- ervoir in any water district shall present to the district court 46 of any county having jurisdiction of priority of rights to the use of water for irrigation in such water district according to the provisions of an act entitled "An act to regulate the use of water for irrigation and providing for settling the priority of rights thereto, and for payment of the expenses thereof, and for pay- ment of all costs and expenses incident to said regulation of use$" or to the judge thereof in vacation, a motion, petition or application in writing, moving or praying said court to pro- ceed to an adjudication of the priorities of rights to use of water for irrigation between the several ditches, canals and reservoirs in such districts, the court, or judge thereof in vacation shall, without unnecessary delay, in case he shall deem it practicable to proceed in open court, as prayed for, by an order to be entered of record upon such motion, petition or application, appoint a day, in some regular or special term of said court, for com- mencing to hear and take evidence in such adjudication, at which time it shall be the duty of the court to proceed to hear all evi- dence which may be offered by or on behalf of any person, as- sociation or corporation, interested in any ditch, canal or reser- voir, in such district, either as owner or consumer of water therefrom in support of or against any claim or claims or prior- ity of appropriation of water made by means of any ditch, canal or reservoir, or by any enlargement or extension thereof in such district, and consider all such evidence, together with any and all evidence, if any, which may have been heretofore offered and taken in such district in the same matter by any referee heretofore appointed under the provisions of said act above here- in mentioned, and also the arguments of parties or their counsel, and shall ascertain and find from such, evidence, as near as may be, the date of the commencement of such ditch, canal or reser- voir, together with the original size and carrying capacity there- of as originally constructed, the time of the commencement of each enlargement or extension thereof, if any, with the increased capacity thereby occasioned, the time spent, severally, in such construction and enlargement, or extension, and re-enlargement, if any, the diligence with which the work was in each case prose- cuted, the nature of the work as to difficulty of construction, and all such other facts as may tend to show the compliance with the law, in acquiring the priority of right claimed for each such ditch, canal or reservoir, and determine the matters put in evidence, and make*and cause to be entered a decree determining and es- tablishing the several priorities of right, by appropriation of water, of the several ditches, canals and reservoirs in such water district, concerning which testimony shall have been offered, each according to the time of its said construction and enlargement, or enlargements or extensions, with the amount of water which shall be held to have been appropriated by such co enlargements, or extensions, describing such am feet per second of time, if the evidence shall sho\v istruction and >un^ ,by .cubic - . S., 1772; L. '81, p. 149, 10. [Section 4 above referred to is section 3284.] [For oath of referee see Code section 224, p. 117.] 3292. Referee's notice Contents Publication Posting copies. Sec. 1.2S. Said referee shall prepare and .publish a notice containing a copy of the order appointing him, in which notice he shall appoint a time or times, and place or places, suitable and convenient for the claimants in such water district, at which he will attend for the purpose of hearing and taking 52 evidence touching the priority of right of the several ditches, canals and reservoirs in said district and notifying all persons, associations and corporations interested as owners or consumers of water to attend by themselves, their agents or attorneys, at the times and places appointed in said notice, and notifying such owners to then and there file a statement of claim in case such statement has not been already filed under the provisions of section one hereof, such as mentioned in section six hereof, and present their proofs touching any priority of right claimed by them for any ditch, canal or reservoir in said district, which notice shall be published in the same manner and times, and in all respects according to the provisions for publication of the newspaper notices mentioned in section six of this act, and proof of such publication shall be made in same manner as is provided in section seven of this act; and he shall also post ten or more printed copies of such notice in ten or more public- places in said district, which copies shall be so posted at least twenty days before the time of commencing to take said evi- dence. [G. S., 1773; L. '81, p. 150, 11. [Section 6 above referred to is section 32S6.] [Section 1 referred to is section *3277.] [Section 7 referred to is section 32S7.] 3293. Proof of posting notices. Sec. 129. Proof of the post- ing of said copies shall be made by the affidavit of said referee or other person certified by him to be a credible witness, which shall show when, where and how T the said copies were posted, and shall be filed by him with his report. [G. S., 1774; L. '81, p. 151, 12. 3294. Who may offer evidence. Sec. 130. Said referee shall altend at the times and places mentioned in his notice for the purpose therein mentioned; and all persons, associations, choosing to do so, and being interested as owners of or con- sumers of water from any ditch, canal or reservoir in said dis- trict, and may also attend by themselves, their agents or attorneys, before said referee, at some one or more of said times and places so appointed, and shall have right to offer any and all evidence they may think advisable for their interests in the matter to be adjudicated, as well in districts in which evi- dence has been heretofore taken as in other districts. All such evidence as has been heretofore taken, if an} 7 , in such district, shall be kept present by said referee, subject to inspection by any party desiring to examine the same for purposes of the investigation. [G. S., 1775, L. '81, p. 151, 13. [Claim must be filed before party can offer evidence. Section 3316.] 3295. When former evidence may be used. Sec. 131. When- ever testimonv shall or mav be taken, in anv district created 53 by this act, for the purpose of procuring decree as to appro- priation of water, and priorities thereof, under the statutes of this state, any testimony theretofore taken, before any for- mer referee, may be introduced and shall bt received as evi- dence. [L. 'So, p. 259, 28. 3296. Powers and duties of referee Books and records, evi- dence.- Sec. 132. Said referee shall have power to administer oaths to all witnesses, and to issue subpoenas for witnesses and subprenas duces tecimi, which subpoenas may be served by any party, or constable, or sheriff, or deputy sheriff, and may re- (juire witnesses to appear at any of the places appointed by said referee for taking evidence. He shall permit all witnesses to be examined by the parties calling them respectively and to be cross-examined by any party interested, and he shall take all testimony in writing and note all objections offered to any part of the testimony taken, with the cause assigned for the objection, and shall proceed in all other respects as in case ol ! taking depositions. He shall certify all books and papers offered by any one in his own behalf, and preserve them with the testimony offered concerning the same, and in case of books and papers offered in eA'idence, which shall not be under the control of the party desiring the evidence for which such books may be offered, said referee shall make a true copy of the parts demanded and certify the same, and preserve the same, together with the evidence offered concerning the same and concerning said books and papers, as part of the evidence in the matter, [G. S., 1776; L. '81, p. 151, 14. 3297. Refusal to produce books or papers Effect. Sec. 133. No person, association or corporation wilfully refusing to pro- duce any book or paper, if in his or their power to do so, when rightfully demanded for examination and copying, shall be al- lowed the benefit of any testimony or proofs in his, her or their behalf, in making final adjudication, if the court shall be satisfied, from all the evidence shown concerning such refusal, that the same was wilful. [G. S., 1777; L. '81, p. 152, 15. 3298. What facts to be ascertained by proofs. Sec. 134. Said referee shall also examine all witnesses to his own satisfaction, touching any point involved in the matter in question, and shall ascertain as far as possible the date of the commencement oi each ditch, canal or reservoir, with the original size and carry- ing capacity thereof, the time of the commencement of each enlargement thereof, with the increased carrying capacity there- by occasioned, the length of time spent in such construction or enlargement, the diligence with which the work was prose- 54 cuted, the nature of the work as to difficulty of construction, i>nd all such other facts as may tend to show compliance with the law in acquiring the priority of right claimed for such ditch, canal or reservoir; and upon all the facts so obtained shall be determined the relative priorities among the several ditches, canals and reservoirs, the volume or amount of water lawfully appropriated by each, as well as by means of the construction, as by the enlargements thereof, and the time when each such several appropriations took effect. [G. S., 1778; L. '81, p. 152, 16. 3299. Contempt before referee. Sec. 135. Every person present before said referee at any time when he shall be en- gaged in hearing testimony, who shall wilfully disturb the proceedings; and every person who shall wilfully refuse or neg- lect to obey any subpoena issued by said referee, when his lawful fees shall be tendered him for his attendance before the referee, shall be guilty of contempt of court appointing such referee, and on complaint, under oath of the referee or other person, before the said district court, or judge thereof in vacation, may be brought before the court or judge and dealt with accordingly, [G. S., 1779; L. '81, p. 152, 17. 3300. Compensation of referee How paid Accounts. Sec. 136. The referee appointed in this act shall be paid the sum of six dollars per day while engaged in discharging his duties as herein provided, and also his reasonable and necessary expenses and mileage at the rate of ten cents for each mile actually and necessarily traveled by him in going and coming in the discharge of his duties as such referee, which said per diem allowance, ex- penses and mileage shall be paid out of the treasury of the county in which such water district shall lie, if it be contained in one county, and if such water district shall extend into two or more counties, then in equal parts thereof, shall be paid out of the treasury of such county into which such district shall extend. He shall keep a just and true account of his services, expenses and mileage and present the same from time to time to the district court, or judge in vacation verifying the same by oath, and the judge, if he find the same correct and just, shall certify his ap- proval thereof thereon, and the same shall thereupon be allowed by the board of county commissioners of the county in which said water district shall lie, but if said water district extend into two or more counties, he shall receive from the clerk of the district court separate certificates, under seal of the court, showing the amount due him from each county, upon which certificate the board of county commissioners of the respective counties shall allow the same on presentation thereof. [G. S., 1798; L. '81, p. 160, 36. 3301. Fees of witnesses By whom paid. Sec. 137. Every witness who shall attend before said referee under subpoena by request of any party, shall be entitled to the same fees and mile- age as witnesses before the district court in the county in which he shall so attend, and shall be paid by the party requiring his testimony. [G. &., 178.0; L. '81, p. 153; 18. [For fees and mileage of witnesses, see sections 2542 and 2543.] 3302. Duties of referee Eights of parties Adjournment Notice. Sec. 138. The said referee shall take all the testimony offered, and for that purpose shall give reasonable opportunity to all parties to be heard, and may at any place, when the time limited thereat shall expire, adjourn the further taking of testi- mony then proposed or desired to be offered to the next place in order, according to his said published appointments, and at the last place may continue until all testimony shall be taken, or make further appointments at any former place or places as may seem best and most convenient for all parties, giving reasonable notice thereof. [G. S., 1781; L. '81, p. 153, 19. 3303. Rights of parties against referee for neglect, oppression, etc. Sec. 139. Every party interested shall have the right to complain to the court of any act of wilful neglect or oppression on the part of the said referee in exercising his powers under this act, whereby such party shall have been aggrieved, either by re- fusal of said referee to hear or take evidence offered, or by pre- venting reasonable opportunity to offer such evidence; and the court may order such proceedings in the premises as will give redress of the grievance, at the cost of said referee, if he appear wilfully in fault; otherwise, in case of accident or mistake, costs shall be awarded as to the court shall seem just. [G. S., 1785; L. '81, p. 155, 23. 3304. Eeport of referee Contents. Sec. 140. Said referee, upon closing the testimony, shall proceed to carefully examine the same, together with all testimony and proofs which may have been heretofore taken by any former referee in the same district, if any such shall have been taken, under the provisions of said act, the title of which is recited in section four of this act; he shall make an abstract of all the testimony and proofs in his posses- sion, concerning each ditch, canal and reservoir separately, and shall number each ditch and canal in order, and likewise each reservoir, each class consecutively, and also number the several appropriations of water shown by the evidence, all in manner and form as provided in section nine hereof, and shall make a separate finding of all the facts connected with each ditch, canal 56 and reservoir, touching which evidence shall have been offered; and he shall prepare a draft of a decree in accordance with his said findings, in substance the same as the decree mentioned in section four of this act, and conformable also to the provisions of section nine hereof, so far as the same are applicable; which decree, so prepared by him, shall be returned with his report to the court, and he shall file his report with said evidence, abstract and findings, and said decree, with the clerk of the court, and inform the judge of so doing, without cfelay. [G. S., 1782; L. '81, p. 153, 20. [Sections 4 and 9 referred to above are sections 3284 and 3290.] 3305. Filing report Court proceed to determine Exceptions Approval Entry. Sec. 141. Upon the filing of said report the court, or judge thereof in vacation, shall cause an order to be entered setting some day in a regular or special term of said court as soon as practicable, when the court will proceed to hear and determine the report; at which time any party interested may appear by himself or counsel and move exceptions to any matter in the findings or decree made by said referee, and after hearing the same the court shall, if the decree reported be approved, cause the same to be entered of record, or otherwise such modifications thereof or other decree as shall be found just and conformable to the evidence and the true intent of this act, and to so much of any and all former laws of the state as shall be adjudged con- sistent herewith. [G. S., 1783; L. '81, p. 154, 21. 3306. Court may dismiss referee Vacancy New appointment. Sec. 142. The district court, or judge thereof in vacation, in case of the death, resignation, illness, absence or other disability of the referee hereby provided for, or for any misconduct in him, or other good cause to such judge appearing, shall appoint such other properly qualified person in his stead as he shall deem proper, who shall proceed without delay to perform all the duties of his office, as herein pointed out, which shall remain unper- formed by his predecessor in office. [G. S., 1795; L. '81, p. 159, 33. 'C. APPEALS. Section. Section. 3307. Who may appeal State- 3310. Transcript to be filed in m e n t A p p r o v a 1 six months Bill of ex- Order Bond. ceptions. 3308. Copy of order served on 3311. Costs in supreme court. appellees Publication 3312. Supreme court amend or and posting c o p i e s make new decree or re- Proof, mand. 3309. Proof of service of notice Supreme court make rules. 3307. Who may appeal Statement Approval Order Bond. Sec. 143. Any party or parties representing any ditch, canal or reservoir, or any number of parties representing two or more ditches, canals or reservoirs, which are affected in common with each other by any portion of such decree., by which he or she or they may feel aggrieved, may have an appeal from said district court to the supreme court, and in such case the party or parties joining, desiring an appeal, shall be the appellants, and the par- ties representing any one or more ditches, canals or reservoirs affecting in common adversely to the interests of appellants shall be the appellees. The party or parties joining in such appeal shall file a statement in writing, verified by affidavit properly entitled in such cause in the district court, which statement shall show that the appellants claim a valuable interest in the ditch, canal or reservoir, or two or more of such, which are affected in common with each other by some portion of said decree, also stating the name or names, or otherwise, the description of the same, and the name or names, or otherwise the description of any one or more other ditches, canals or reservoirs, which by said decree derive undue advantage in respect of priority as against that or those represented by appellants ; and also setting forth the name or names of the party or parties claiming such other one or more ditches, canals or reservoirs, affected in com- mon by said decree adversely to the interest of appellant or ap- pellants, and praying that an appeal be allowed against such other parties as appellees. If the court or judge in vacation, on examination, find such statement in accordance with the state- ments of claim filed by the parties named as appellees, mentioned in section one of this act, he shall approve the same and make an order to be prepared and presented by the appellants allowing the appeal and showing the name or names of the appellants and appellees, with the name or names or description of the one or more ditches, canals or reservoirs, claimed by the party or par- ties appellant or appellee, as shown by their several statements 58 of claim filed as aforesaid, before the taking of testimony, and fix the amount of the appeal bond, which bond shall be executed by one or more of appellants, as principal or principals, and by sufficient securities, and approved by the court or judge in vaca- tion, and shall be conditioned for the payment of all costs which may be awarded against the appellants or any of them in the supreme court. [G. S., 1789; L. '81, p. 156, 27. [Section 1 above referred to is section 3277.] 3308. Copy of order served on appellees Publication and post- ing copies Proof. Sec. 144. The order last aforesaid shall be entered of record, and the appellant or appellants shall cause a certified copy thereof to be served on each of the appellees, by delivering the same to him or her, if he or she may be found, or otherwise serving the same in manner the same as may be at the time approved for serving summons from the district court by the laws then in- force, and shall also cause the said order to be published in the same manner as the notices required to be pub- lished by the referee mentioned in section eleven of this act, and proof of the publication in any newspaper shall be the same as in case of said referee's notice, and proof of the posting of the ten printed copies in the district shall be by affidavit of the party posting the same, with the certificate of the clerk of the district court appealed from, that the affiant is a known and credible person. [G. S., 1790; L. '81, p. 157, 28. [Section 11 above referred to is section 3292.] [For service of summons see Code, section 40, p. 81.] 3309. Proof of service of notice Supreme court make rules. Sec. 145. The said proof of the service and publication of said order allowing the appeal shall be filed with the clerk of the supreme court within sixty days after the making of said order, and if not so filed, the supreme court shall, on motion of the appellee or any of the appellees, at any time after such default in filing said proof, and before the said proof shall be filed, dis- miss such appeal, and if the transcript of record be not filed within the time limited by section twenty-nine of this act, such appeal shall, on motion, be dismissed. After the filing of the record and proof of service as aforesaid, the cause on appeal shall be proceeded with as the rules of the supreme court, or such spe- cial rules as said court may make in such cases, and their order from time to time thereunder may require. Said court shall have power to make any and all such rules concerning such appeals as may be necessary and expedient in furtherance of this act, as well as to preparation of the case for submission as to supplying deficiencies of record, if any, and for avoiding unnecessary costs and delay. [G. S., 179'4; L. '81, p. 158, 32. [Section 29 above referred to is section 3310.] 59 3310. Transcript to be filed in six months Bill of exceptions, Sec. 14G. The appellant or appellants shall file the transcript of record of the district court with the clerk of the supreme court at any time within six months after the appeal shall be allowed as aforesaid. Only so much of the decree appealed from, and so much of the evidence as shall affect the appropriations of water claimed by means of the construction or enlargement or re-en- largement of the several ditches, canals and reservoirs mentioned in the order allowing the appeal, need be copied into the bill of exceptions. [G. S., 1791; L. '81, p. 157, 29. 3311. Coses in supreme court. Sec. 147. The supreme court, on dismissal of such appeal, or on affirming or reversing the parts of the decree appealed from, in whole or in part, shall award costs, as in its discretion shall be found and held to be equitable. [G. &., 1792; L. '81, p. 158, 30. 3312. Supreme court amend or make new decree, or remand. Sec. 148. The supreme court, in all cases in which judgment is rendered, and any part of the decree appealed from is reversed, and in which it may be practicable, shall make such decree in the matters involved in the appeal as should have been made by the district court, or direct in what manner the cfecree of that court shall be amended. [G. S., 1793; L. '81, p. 158, 31. . D. GENERAL PROVISIONS Section. Section. 3313. Suit must be brought in 3317. Effect of failure to offer four years Injunction evidence. Commissioner's duty. 3318. Re-argument Review 3314. After four years suit Limitation two years. barred. 3319. Sheriff not to serve writ 3315. Court may make rules outside his county. Act liberally construed. 3320. Fees of district clerk 3316. Party must file claim be- How audited Paid. fore offering evidence. 3313. Suits must be brought in four years Injunctions Com- missioner's duty. Sec. 149. Nothing in this act or in any decree rendered under the provisions thereof, shall prevent any person, association or corporation from bringing and maintaining any suit or action whatsoever hitherto allowed in any court having jurisdiction, to determine any claim of priority of right to water, by appropriation thereof, for irrigation or other purposes, at any time within four years after the rendering of a final decree under this act in the water district in which such rights may be claimed, save that no writ of injunction shall issue in any case restraining the use of water for irrigation in any water district wherein such 60 final decree shall have been rendered, which shall affect the dis- tribution or use of water in any manner adversely to the rights determined and established by and under such decree, but in- junctions may issue to restrain the use of any water in such dis- trict not affected by such decree, and restrain violations of any right thereby established, and the water commissioner of every district where such decree shall have been rendered shall con- tinue to distribute water according to the rights of priority de- termined by such decree, notwithstanding any suits concerning water rights in such district, until in any suit between parties the priorities between them may be otherwise determined, and such water commissioner have official notice by order of the court or judge determining such priorities, which notice shall be in such form and so given as the said judge shall order. [G. S., 1796; L. '81, p. 159, 34. 3314. After four years suit barred. Sec. 150. After the lapse of four years from the time of rendering a final decree, in any water district, all parties whose interests are thereby affected shall be deemed and held to have acquiesced in the same, except in case of suits before then brought, and thereafter all persons shall be forever barred from setting up any claim to priority of rights to water for irrigation in such water district adverse or contrary to the effect of such decree. [G. S 1 ., 1797; L. '81, p. 160, 35*. 3315. Court may make rules Act liberally construed. Sec. 151. The district court, or judge thereof in vacation, shall have power to make all orders and rules consistent with this act w r hich may be found necessary and expedient, from time to time during the progress of the case, for carrying out the intent of this act, and of all parts consistent therewith of the said act, the title of which is recited in section four thereof ; as well touching the pro- ceedings in court as of the acts and doings of said referee, for the purpose of securing to any party aggrieved by the acts of said referee or any proceeding of the court, opportunity for redress; and this act shall be construed liberally in all courts, in favor of securing to all persons interested the just determination and pro- tection of their rights. [G. S., 1786; L. '81, p. 155, 24. [Section 4 above referred to is section 3284.] 3316. Party must file claim before offering evidence. Sec. 152. No persons, association or corporation representing any ditch, canal or reservoir, shall be permitted to give or offer any evidence before said referee until he, she or they shall have filed a state- ment of claim in substance the same in all respects as is required to be filed under the provisions of section one hereof. [G. S., 1787; L. '81, p. 155, 25. [Section 1 referred to is section 3277.] 61 3317. Effect of failure to oifer evidence. Bee. 153. No claim of priority of any person, association or corporation, on account of any ditch, canal or reservoir, as to which he, or she, or they shall have failed or refused to offer evidence under any adjudica- tion herein provided for or heretofore provided for by said act, the title of which is recited in section four hereof, shall be re- garded by any water commissioner in distributing water in times of scarcity thereof, until such time as such party shall have by application to the court having jurisdiction, obtained leave and made proof of the priority of right to which such ditch, canal or reservoir shall be justly entitled, which leave shall be granted in all cases upon terms as to notice to other parties interested, and on payment of all costs, and upon affidavits or petition sworn to showing the rights claimed and the ditches, canals and reservoirs, with the names of the owners thereof against which such priority is claimed, nor until a decree adjudging such priority to such ditch, canal or reservoir has been entered, and certificate, such as mentioned in section four hereof, shall have been issued to claimant and presented to the water commissioner. [G. S., 1784; L. '81, p. 154, 22. [Section 4 referred to is section 3284.] 3318. Re-argument Review Limitation two years. Sec. 154. The district court, or judge thereof in vacation, shall have power to order, for good cause shown, and upon terms just to all parties, and in such manner as may seem meet, a re-argument or review, with or without additional evidence, of any decree made under the provisions of this act, whenever said court or judge shall find from the cause shown for that purpose by any party or parties feeling aggrieved, that the ends of justice will be thereby promoted; but no such review or re-argument shall be ordered unless applied for by petition or otherwise within two years from the time of entering the decree complained of. [G. S., 1788; L. '81, p. 150, 26. 3319. Sheriff not serve writ outside his county. Sec. 155. Nothing herein contained shall be construed to authorize any sheriff to serve any writ outside the limits of his own county, or give effect to any record by way of notice or otherwise, in any county other than that in which he belongs. [G. S., 1800; L. '79, p! 106, 35. 3320. Fees of district clerk How audited Paid. Sec. 156. The fees of the clerk of the district court for a service rendered under this act shall be paid by the counties interested in the same manner as the fees of the water commissioners, upon the said clerk rendering his account certified by the district judge to the board or boards of county commissioners of the county or 62 counties embracing- the water district in case of which the ser- vices shall have been rendered. [G. S., 1801; L. '79, p. 108, 43. V. STATE ENGINEER. Section. 3321. State engineer Appoint- ment Office Salary- Oath Bond. 3322. General duties of state engineer. 3323. Shall approve designs -and plans. 3324. Supervision over division engineers and water commissioners. 3325. Additional duties of en- gineer. 3326. Appoint deputy for special work. Section. 3327. Deputies Appointment Oath Engineer liable for acts. 3328. Pay of deputies and as- sistants. 3329. Require owner of ditch to construct and maintain a measuring weir. 3330. Cubic foot per second, unit of measurement. 3331. Report of state engineer. 3332. Fees collected by state engineer. 3333. Pees deposited with state treasurer. 3334. Application of fees. 3321. State engineer Appointment Office Salary Oath- Bond. Sec. 157. The governor shall appoint a state engineer, who shall hold his office for the term of two years, or until his successor shall be appointed and qualified. The governor may at any time, for cause shown, remove said state engineer. The said state engineer shall have his office at the state capitol, in suitable rooms to be provided for him by the secretary of state, who shall furnish him with suitable furniture, postage and such proper and necessary stationery, books and instruments as are required to best enable him to discharge the duties of his office. He shall be paid a salary of three thousand dollars per annum, payable monthly by the state treasurer, on warrants drawn by the state auditor. The said state engineer shall, before entering on the discharge of his duties, take and subscribe to an oath, before the judge of a state court of record, to faithfully perform the duties of his office, and file said oath with the secretary of state, together with his official bond, in the penal sum of ten thousand dollars, said bond to be signed by sureties approved by the secretary of state and conditioned upon the faithful dis- charge of the duties of his office and for delivering to his suc- cessor, or other officer authorized by the governor to receive the same, all moneys, books, instruments and other property belong- ing to the state then in his possession or under his control, or with which he may be legally chargeable as such state engineer. [L. '89, p. 371, 1. 3322. General duties of state engineer. Sec. 158. The state engineer shall have general supervising control over the public 63 waters of the state. He shall make or cause to be made careful measurements of the flow of the public streams of the state from which water is diverted for any purpose, and compute the dis- charge of the same. He shall also collect all necessary data and information regarding the location, size, cost and capacity of dams and reservoirs hereafter to be constructed, and like data regarding the feasibility and economical construction of reser- voirs on eligible sites, of which he may obtain information, and the useful purposes to which the water from the same may be put. He shall also collect all data and information regarding the snow-fall in the mountains each season, for the purpose of predicting the probable flow of water in the streams of the state, and publish the same. [L. '89, p. 372, 2. [Duties appertaining to reservoirs. Sections 3205-3214.] [Report of engineer on desert land projects. Section 5145.] 3323. Shall approve designs and plans. Sec. 159. The state engineer shall approve the designs and plans for the construction and repair of all dams or reservoir embankments which are built within the state, which equal or exceed ten feet in vertical height. [L. '89, p. 372, 3. [Office of division superintendent abolished and division engineers provided in their place. Section 3335.] 3324. Supervision over division engineers and water commis- sioners. Sec. 100. The state engineer shall have general charge over the work of the division water superintendents and district water commissioners, and shall furnish them with all the data and information necessary for the proper and intelligent dis- clmrgo of the duties of their offices, and shall require them to report to him at suitable times their official actions, and require of them annual statements, on blanks to be furnished by him, of the amount of water diverted from the public streams in their respective divisions and districts, and such other statistics as, in the judgment of the state engineer, will be of benefit to the state. .[L. '89, p. 373, 4. 3325. Additional duties of engineer. Sec. 161. The state engineer shall, without any extra pay or compensation beyond the salary provided in section one of this act, perform all duties imposed upon him by law, and .shall when called upon by the governor, give his counsel and services, without extra pay or compensation, ta any state department or institution ; Provided, however. That he shall be allowed all actual traveling and other necessary expenses, and the actual cost of preparing necessary maps and drawings, which actual expenses shall be paid by the department or institution requiring his services. [L. '89, p. 373, 6. 3326. Appoint deputy for special work. Sec. 162. The stato engineer shall, on request of any party interested and on pay- 64 ment of his per diem charges and reasonable expenses, appoint a deputy to measure, compute and ascertain all necessary data of any canal, dam, reservoir or other construction, as required or as may be desired to establish court decrees, or for filing state- ments, in compliance with law, in the county clerk's records. [L. '89, p. 373, 5. 3327. Deputies Appointment Oath Engineer liable for acts. Sec. 163. The state engineer may appoint one or more dep- uties, as he may think proper, for whose official actions he shall be responsible, and may revoke such appointments at his pleas- ure; and he may also deputize any person to do a particular service; and the said state engineer and his sureties shall be responsible on his official bond for the default or misconduct of his deputies. Such appointment and revocation shall be in writ- ing, under the signature and official seal of the state engineer, and shall be filed in the office of the secretary of state. All persons appointed shall take and subscribe to an oath, before the judge of a court of record, to truly perform the duties of the office to which he is appointed ; and such oath shall be filed with his appointment in the office of the secretary of state. In addi- tion to the deputies provided for in this section, the state engineer may employ such assistance in performing the work of his office as he may deem necessary. [L. '89, p. 373, 7. 3328. Pay of deputies and assistants. Sec. 164. The pay of the deputies and assistants of the state engineer shall not exceed the sum of six dollars per day for each day employed, together with actual expenses, and the whole amount which may be so expended is hereby limited to the sum of forty-five hundred dollars each year. < [L. '89, p. 374. 8. 3329. Require owners of ditches to construct and maintain a measuring weir. Sec. 165. For the more accurate and conven- nient measurement of any water appropriated pursuant to any judgment or decree rendered by any court establishing the claims of priority of any ditch, canal or reservoir, the owners thereof may be required by the state engineer to construct and maintain, under the supervision of the state engineer, a measuring weir or other device for measuring the flow of the water at the head of such ditch, canal or reservoir, or as near thereto as practicable. The state engineer shall compute, and arrange in tabular form, the amount of water that will pass such weir or measuring de- vice at the different stages thereof, and he shall furnish a copy of a statement thereof to any water superintendents or com- missioners having control of such ditch, canal or reservoir. [L. '89, p. 374, 9. 3330. Cubic foot per second, unit of measurement. Sec. 166. The state engineer shall use in all his calculations, measurements, records and reports, the cubic foot per second as the unit of measurement of flowing water, and the cubic foot as the unit of measurement of volume. [L. '89, p. 374, 10. [Cubic inch of water defined. Section 7026.] 3331. -Report of state engineer. Her. 1(57. The state engi- neer shall prepare and render to the governor a full and true report of his work, regarding all matters and duties devolving upon him by virtue of his office, which report shall be delivered at the time when the reports of other state officers are required by law to be made, in order that it may be laid before the general assembly at each regular session thereof. [L. '89, p. 374, 11. [Act of 1889, sections 3321-3331, repealed, G. S., sections 1S07-1S13.] 3332. Fees collected by state engineer. Sec. 168. Fees shall be collected by the state engineer for work done in his office as follows : For the exam-ination, filing and certification to the dupli- cate of each map and statement describing a claim to a w T ater right and of each judicial decree ordering the transfer of a water right, 11.00. For each certificate other than that made in the case of original filings requiring official signature and seal, $1.00. For the examination and filing of each set of plans and specifications for reservoirs, dams, embankments, and other struc- tures for the purpose of utilizing or storing water, $1.00 for each $5,000.00 or fraction thereof of the estimated cost of such structure or structures. For copies of plats, the sum of $1.00 for each hour or frac- tion thereof necessary for the making of the same. For copies of records, 10 cents per folio. [L. '03, p. 294, 1. [Fee for inspection of reservoir. Sections 3206 and 3211.] 3333. Fees deposited with state treasurer. Sec. 169. At the end of each month the sum of the fees collected during the month, as provided for in section 1 of this act, shall be deposited with the state treasurer, with a complete statement showing the amounts thus received and the sources from which they are de- rived, and the said amounts shall be credited by the said treas- urer to a fund which shall be known as a ganging fund. [L. '03, p. 295, 2. [Sections 3332-3334 amend by implication L<. '99, p. 348, sections 1-2.] 3334. Application of fees. Sec. 170. The amount credited to the gauging fund created as hereinbefore provided shall be available for the payment of expenses and salaries required for work of gauging streams, rating ditches, making seepage measure- ments, or other work connected with the proper distribution of 66 water or ascertaining desired information concerning the flow of water. Warrants for tlie payments of such salaries and expenses shall be issued by the auditor of state upon presentation of vouchers regularly drawn and approved by the state engineer. [L. '03, p. 295, 3*. [Sections 3332-3334 amend by implication L. '99, p. 348, sections 1-2.] VI. IRRIGATION DIVISIONS DIVISION ENGINEERS. Section. 3335. Appointment' of division engineers Boundaries of irrigation divisions. 3336. Jurisdiction of irrigation divisions Nos. 4 and 5. 3337. Examination to fill va- cancy. 3338. Application for appoint- ment as division en- gineer. 3339. Qualifications of appli- cant. 3340. Examination of papers Rating certified to gov- ernor. 3341. Term of office of division engineer. 3342. Salaries and expenses of engineers. 3343. Oath of office Bond. Section. 3344. Powers and duties of en- gineer A p p e a 1 from rulings. 3345. Charges against water commissioner Trial Suspension Removal. 3346. Certified copy of priority decree furnished en- gineer. 3347. Meeting of division en- gineers Reports. 3348. Report of water commis- sioners Contents. 3349. Clerk furnish copies of de- crees to division en- gineer. 3350. Commissioners report to engineer. 3351. Owner report failure to re- ceive water Duty of engineer. 3352. Fees of district clerk. 3335. Appointment of division engineers Boundaries of irri- gation divisions. Sec. 171. The office of superintendent of irri- gation is hereby declared abolished, and in place of such super in tendents the governor shall, subject to confirmation by the senate, appoint five persons, who shall be known as irrigation division engineers, who shall be qualified to perform the duties devolving upon them, as hereinafter provided, one of the said officers to have jurisdiction over irrigation division No. 1, comprising all water districts now or hereafter to be formed, consisting of lands in the state of Colorado irrigated by water taken from the South Platte river, the North Platte river, the Big Laramie river, the North and Middle forks of the Republican river, Sandy and Frenchman's creeks, and the streams draining into the said rivers and creeks; one over irrigation division No. 2, comprising all water districts now or hereafter to be formed, consisting of lands irrigated by water taken from the Arkansas river, the South Fork of the Republican river, the Smoky Hill river and the Dry Cimarron river, and the streams draining into the said 67 rivers; one over irrigation division No. 3, comprising all water districts now or hereafter to be formed, consisting of lands watered from the Eio Grande river and its tributaries; one over irrigation division No. 4, which is hereby created, comprising all water districts now, or hereafter to be formed, consisting of lands in the state of Colorado watered by the San Juan river and its tributaries ; and, also, all water districts now, or here- after to be formed, consisting of lands in the state of Colorado watered by the Grand river and its tributaries, below the mouth of Roan creek, including water district No. 42, and one over irrigation division No. 5, which is hereby created, comprising all water districts now or hereafter to be formed, consisting of lands in the state of Colorado watered by the Grand river and its tributaries above and including Roan creek and water districts Nos. 39 and 45, and, also, all water districts now, or hereafter to be formed, consisting of lands in the state of Colo- rado irrigated by water taken from the Green river and its tribu- taries, respectively. And such division engineer shall be ap- pointed from the division over which he has jurisdiction, and he shall have been a resident of the division for at least one year prior to appointment. [L. '03, p. 281, 1. 3336. Jurisdiction of irrigation divisions Nos. 4 and 5. Sec. 172. Said water districts Nos. 39 and 70 shall be and remain in irrigation division No. 5 and said water district No. 42 shall be and remain in irrigation division No. 4. [L. 7 05, p. 243, 4. 3337. Examination to fill vacancy. Sec. 173. The state en- gineer shall hold examinations whenever a vacancy exists, and such examinations shall be held in at least one place in the ter- ritory comprising the division, or divisions, where any vacancy or vacancies exist, and twenty days prior to the date fixed for any such examinations he shall cause notices, for a period of one week, to be inserted in one daily paper of general circulation in any irrigation divisions where any vacancy or vacancies exist; or, if there be no daily 'paper, then in one weekly paper in the said division. [L. >03, r p. 282, 2. 3338. Application for appointment as division engineer. Sec. 174. Any person desiring the appointment of irrigation division engineer may file with the state engineer a request for an exami- nation as to his qualifications, and the state engineer shall there- upon notify the applicant of the time and place w^here the next examination is to be held, at which place the applicant must present himself at the time specified, prepared to take such examination. [L. '03, p. 282, 3. 3339. Qualifications of applicant. Sec. 175. Such examina- tions shall be for the purpose of determining the qualifications of applicants, and shall comprise: 68 l-'irst Questions on the measurement of water, which shall include tests in the actual measurements of water in the field, on a basis of 30 per cent, of the total. Second Questions on the laws and customs relative to irri- gation and water rights in Colorado, and including questions re- lating to the local conditions of the division for which the ex- amination is being held, on a basis of 30 per cent, of the total. Third Questions on his experience and the extent of his practice in matters relating to the use of water in irrigation or for other beneficial purposes, on a basis of 40 per cent, of the total. [L. '03, p. 283, 4. 3340. Examination of papers Rating certified to governor. Sec. 176. The state engineer shall examine and rate the exami- nation papers of each applicant, and shall certify to the gov- ernor a list of names of all those receiving a rating of 70 per- cent, or over, together with the markings of each, and from this list the governor shall, subject to confirmation by the senate, appoint persons to fill vacancies; Provided, That such list shall hold good for a period of two years from the date of its certifi- cation to the governor, but no longer; And, proridcd. pirtlicr, That nothing herein contained shall prevent any candidate from taking later examinations for the purpose of reinstatement or of improving his rating. [L. '03, p. 283, 5. 3341. Term of office of division engineer. Sec. 177. Any irrigation division engineer appointed as hereinbefore provided, shall be appointed for a term of two years, or until his succes- sor shall have been appointed and qualified, and shall be re- moved only for malfeasance in office, incompetently or neglect of duty. [L. '03, p. 283, 6. 3342. Salaries and expenses of engineers. Sec. 178. Each irrigation division engineer shall receive the sum of one hundred and twenty-five (125) dollars per month, for the time actually employed in the discharge of his duties, payable monthly upon vouchers, approved by the state engineer, 'drawn upon the audi- tor of state, by whom a warrant shall be drawn upon the state treasurer therefor. He shall also receive reimbursements for all necessary expenses, evidenced by vouchers, incurred in the per- formance of his duties, which expenses shall not exceed the sum of five hundred (500) dollars per annum, and such expenses shall be paid upon vouchers, approved by the state engineer, drawn upon the auditor of state, by whom a warrant shall be drawn on the. state treasurer therefor. [L. '03, p. 283, 7. 3343. Oath of office Bond. Sec. 179. Before entering upon the duties of his office the irrigation division engineer shall sub- 69 scribe to an oath before the judge of a court of record that he will faithfully perform the duties of his office, and shall file said 'oath with the secretary of state, together with his official bond in the penal sum of five thousand (5,000) dollars, said bond to be signed by sureties approved by the secretary of state, and conditioned upon the faithful discharge of the duties of his office and for delivery to his successor or to the state engineer, upon demand, all moneys, books, instruments and other prop- erty belonging to the state or to the irrigation divisions under his control. [L. '03, p. 284, S. 3344. Powers and duties of engineer Appeal from rulings. Sec. 180. The duties of the irrigation division engineer shall be as follows: He shall be governed by all acts heretofore en- acted relative to superintendents of irrigation and shall have general control over the water commissioners of the several dis- tricts within his division. He shall, under the general super- vision of the state engineer, execute the laws of the state rela- tive to the distribution of water, in accordance with the right of priority of appropriation, as established by judicial decrees. He shall, in the distribution of water, be governed by the regulations of this act, and acts that are now in force, but for the better discharge of his duties, he shall have the authority to make such other regulations to secure the equal and fair distri- bution of water, in accordance with the rights of priority of appropriation, as may, in his judgment, be needed in his divi- sion: Provided, Such regulations shall not be in violation of any part of this act, or other laws of the state, but shall be merely supplementary to and necessary to enforce the provisions of the general laws\ and amendments thereto. Any person, ditch company, or ditch owner, who may deem himself injured or discriminated against by any such order or regulation of such irrigation division engineer shall have the right to appeal from the same to the state engineer, by filing with the state engineer a copy of the order or regulation com- plained of, and a statement of the manner in which the same in- juriously affects the petitioner's interest. The state engineer shall, after due notice, hear whatever testimony may be brought forward by the petitioner, either orally or by way of affidavits, and through the irrigation division engineer shall have power to suspend, amend or confirm the order complained of. He shall have the right to call out any water commissioner of any water district within his division, at any time he may deem it necessary, and he shall have the power to perform the regular duties of water commissioner in all districts within his division. 70 And such division engineers shall, further, make measure- ments of streams; shall measure and rate ditches; shall require the water commissioners under their jurisdiction to make annual reports, as hereinafter provided, on or before the 15th of No- vember of each year ; shall collect data concerning reservoirs and reservoir sites, power sites, flow of water in streams, and per- form such other duties as the state engineer shall direct and as are of benefit to his division, or divisions, or to the state in gen- eral. [L. '03, p. 284, 9; superseding L. '87, p. 295, 2, 4 and 8. [Duties oif superintendent of irrigation are denned in L. '87, p. 295, and so far as not superseded are found in this compilation as sections 3349-3352.] 3345. Charges against water commissioner Trial Suspension Removal. Sec. 181. Charges made against any water com- missioner for malfeasance in office, neglect of duty, or incom- petency to fulfill the duties incumbent upon him, shall be made to the division engineer in writing, setting forth the specific charges against him, who shall hold a fair and impartial trial, after five days' notice to such water commissioner, upon whom a written copy of the charges shall be served. At such trial such water commissioner shall be permitted to appear in per- son and by counsel, and introduce evidence. Should such water commissioner be found guilty of any of the offenses charged, then, and in that case only, the irrigation division engineer hav- ing jurisdiction is hereby empowered to suspend him. All such investigations shall be tried and determined within five days from the date set for trial, and at which trial all oral testimony shall be reduced to writing; Provided, That either party may take depositions an3 r where in the state and may have them read at, said trial by giving the opposite party twenty-four hours' no- tice of the time and place and names of the parties whose deposi tions will thus be taken. Upon such suspension the division engineer shall, within ten days, file all pleadings, papers and testimony with the state engineer for review; whereupon the state engineer shall appoint a competent deputy to at once assume control of the district of the water commissioner so suspended. The said deputy shall retain such control until the disability of the commissioner is removed or a new commissioner is appointed and qualified, and the said deputy shall be paid for his services from the statfc engineer's assistants' fund. The state engineer shall review the action of the division engineer as expeditiously as possible, and within thirty days from the time of receiving such papers, shall submit his findings to the governor for his action. In case such suspension of any water commissioner be rec- ommended to be made permanent by the state engineer in his findings, the governor shall, upon the recommendation of the 71 board or boards of county commissioners, as provided by law, forthwith appoint some suitable and competent person to fill such vacancy. The person or corporation making any such charges against any water commissioner shall furnish a good and responsible bond in such reasonable sum as may be fixed by the division en- gineer, conditioned for the payment of the reasonably necessary expenses incurred by the water commissioner in case the charges preferred against him are not sustained by the division engineer. All division engineers shall be under the control and super- vision of the state engineer, and may have charges preferred against them in the same manner, and such charges may be heard and determined by the state engineer upon the same conditions herein provided for like proceedings against the water commis- sioner. [L. '03, p. 285, 10. 3346. Certified copy of priority decrees furnished engineer. Sec. 182. The clerk of any court issuing judicial decrees fixing the priorities of appropriation of water for irrigation or other beneficial purposes in any of such divisions shall furnish the irrigation division engineer having jurisdiction with certified copies thereof, as heretofore provided by law in the case of superintendents of irrigation, whereupon such engineer shall make a tabulated statement of such decrees, in a book prepared for that purpose, and shall forward a copy thereof to the state engineer and keep and preserve in his office the certified copy. [L. '03, p. 287, 11. 3347. Meetings of division engineers Reports. Sec. 183. There shall be held in the office of the state . engineer in Novem- ber of each year a meeting of the irrigation division engineers and of the state engineer and his chief assistant,* at which meet- ing the reports of the irrigation division engineers shall be pre- sented and a general discussion had of the matters which have transpired during the previous season, and at which a program of the work for the ensuing season shall be discussed and deter- mined upon. The reports filed with the state engineer shall include all cor- respondence for the season on all business and official acts for season last past, and shall include the reports of the water com- missioners, as hereinafter defined, and other data and informa- tion. [L. '03, p. 287, 12. 3348. Report of water commissioners Contents. Sec. 184. It shall be the duty of each irrigation division engineer to pre- pare and tabulate the reports of the water commissioners in his division, which reports shall contain a statement of the actual 72 carrying capacity and the amount of water actually carried by each ditch or canal in his district for each and every day when water was being so carried, the total number of acres lying under each ditch or canal and the number of acres actually irrigated therefrom. It shall also contain a statement of the kind of crops and the acreage under each decreed ditch or canal, the amount of water stored in each reservoir, the amount used therefrom. with the dates of such storage and use, and the same shall be on blanks, or in books, prepared for that purpose and furnished by the state engineer. They shall contain a written statement of the official acts of the commissioners, and other matters of interest and use, and shall be duly subscribed and sworn to and filed with the irrigation division engineer on or before the 15th day of November of each year. [L. '03, p. 287, 13. 3349. Clerk furnish copies of decrees to division engineer. Sec. 1*85. Within thirty days after his appointment, said super- intendent of irrigation shall send to the clerk of the district court, within his division, of such counties as have had rendered by the district court of such county, judicial decrees, fixing the priorities of appropriation of water for irrigation purposes for any water district, a notification of his appointment to such office, and shall request of the said clerk a certified copy of every decree of the district court establishing priorities of appro- priation of water used for irrigation purposes within that dis- trict. Thereupon, it shall be the duty of such clerk, within ten days after the receipt of such request from said superintendent of irrigation, to prepare a certified copy of all decrees of such district court establishing priorities of water rights made within that district, under the provisions of the general statutes of the state of Colorado, and transmit the sanie to the superintendent of irrigation requesting it. Said superintendent of irrigation shall then cause to be prepared a book to be entitled, u The Regis ter of Priorities of Appropriations of Water Rights for Water Division No , State of Colorado," within which he shall enter and preserve such certified copies of decrees. Said superintend- ent of irrigation shall, from such certified copies of decrees, make out a list of all the ditches, canals and reservoirs entitled to ap- propriations of water within his division, arranging and num- bering the same in consecutive order, according to the dates of their respective appropriations 'within his division, and without regard to the number of such ditches, canals or reservoirs may bear within their respective water districts. Said superintendent of irrigation shall make from his register a tabulated statement of all the ditches, canals and reservoirs in his division whose priorities have been decreed, which statement shall contain the 78 following information concerning each ditch, canal and reser voir arranged in separate columns. The name of the ditch, canal or reservoir; its number in his division; the district in which it is situated; the number of it in its proper district; and the num- ber of cubic feet of water per second to which it is entitled, and such other and further information as he may deem useful to the proper discharge of his duty. In case any decrees of court estab- lishing priorities of appropriation of water for irrigation pur- poses are made after the transmittal of the copy of previous decrees to the superintendent of irrigation, it shall be the duty of the clerk of the court wherein such decree is rendered, to transmit to the superintendent of irrigation of the division within which said county is situated, within ten days after it is rendered, a copy of such decree, and the superintendent of irrigation shall enter the same in his register, such register to be tiled and kept in the office of the state engineer. [L. '87, p. 207. 7. [Division engineers succeeded the superintendent of irrigation. See section 3335.] 3350. Commissioners report to engineers. Sec. 186. All water commissioners shall make reports to the superintendent of irrigation of their, division as often as may be deemed neces- sary by said superintendent. Said reports shall contain the fol- lowing information : The amount of water necessary to supply all the ditches, canals and reservoirs of that district; the amount of water actually coming into the district to supply such ditches, canals and reservoirs; whether such supply is on the increase or decrease; what ditches, canals or reservoirs are at that time without their proper supply ; the probability as to what the sup- ply will be during the period before the next report will be re- quired, and such other and further information as the superin- tendent of irrigation of that division may suggest. Said super- intendent of irrigation shall carefully file and preserve such re- ports, and shall, from them, ascertain what ditches, canals and reservoirs are, and what are not, receiving their proper supply of water; and if it shall appear that in any district in that divi- sion any ditch, canal or reservoir is receiving water whose pri- ority post-dates that of the ditch, canal or reservoir in another district, as ascertained from his register, he shall at once order such post-dated ditch, canal or reservoir shut down and the water given to the elder ditch, canal or reservoir. His orders being directed at all times to the enforcement of priority of appropriation, according to his tabulated statement of priorities, to the whole division, and without regard to the district within which the ditches, canals and reservoirs may be located. The reports of water commissioners by the superintendents of irriga- 74 tion shall be filed and kept in the office of the state engineer. [L. '87, p. 298, 9. [Division engineers succeeded the superintendent of irrigation. See section 3335.] 3351. Owner report failure to receive water Duty of engineer. Sec. 187. In case any ditch, canal or reservoir, in any district within such superintendent of irrigation's division, shall fail to receive its regular supply of water, the owner or controller of such ditch, canal or reservoir may report such fact to the water commissioner of that district, who shall immediately apportion the water in his district, and send forthwith by .telegram, if nec- essary, a report of such fact to the superintendent of irrigation of his division, and thereupon it shall be the duty of said super- intendent to compare such report with his register, and if any ditch 7 canal or reservoir of any other district of his division is receiving water to which any ditch, canal or reservoir of any other district is entitled, he shall at once order the shutting down of the post-dated ditches, canals or reservoirs, and the water given to the ditches, canals or reservoirs having the priority of appropriation'; Provided, however, That nothing in this act shall be construed as interfering with the priority of water for domes- tic use. [L. '87, p. 299, 10. [See note, section 3350.] 3352. Fees of district clerk. Sec. 188. The expenses and salary of the superintendents of irrigation shall be paid pro rata by the counties interested, in the same manner as the fees of water commissioners are paid, and the fees of the clerks of the district courts, for services rendered under the provisions of this act, shall also be paid by the counties interested, upon the said clerk rendering his account, certified by the district judge to the boards of county commissioners of the counties embraced in the water divisions in case of which the services have been rendered. [L. '87, p. 299, 11. [The division engineers' salaries are provided for in section 3342.] 3353. Lands watered constitute districts. Sec. 189. That the lands now irrigated, or which may be hereafter irrigated from ditches now taking water from the following described rivers or natural streams of the State of Colorado, are hereby declared to constitute irrigation districts. [G. S., 1741 ; L. '79, p. 97, 5. [Unlawful to cut trees which conserve snow or water in irrigation district. Section 2626.] 3354. District number one. Sec. 190. That water district No. 1 shall consist ,of all lands in the State of Colorado irrigated by waters taken from that portion of the South Platte river be- tween the mouth of the Cache la Poudre river and the west boun- dary line of Washington county, and from the streams draining 75 VII. WATER DISTRICTS WATER COMMISSIONERS. A. BOUNDARIES OF WATER DISTRICTS. 3353-3426. B. WATER COMMISSIONERS. 3427-3439. A. BOUNDARIES OF WATER DISTRICTS. Section. 3353. Lands watered constitute districts. 3354. District number one. 3355. District number two. 3356. District number three. 3357. District number four. 3358. District number five. 3359. District number six. 3360. District number seven. 3361. District number eighl. 3362. District number nine. 3363. District number ten New districts formed by gov- . ernor. 3364. District number eleven. 3365. District number twelve. 3366. District number thirteen. 3367. District number fourteen. 3368. District number fifteen. 3369. District number sixteen. 3370. District number seven- teen. 3371. District number eighteen. 3372. District number nineteen. 3373. District number twenty. 3374. District number twenty- one. 3375. District number twenty- two. 3376. District number twenty- three. 3377. District number twenty- four. 3378. District number twenty- five. 3379. District number twenty- six. 3380. District number twenty- seven. 3381. District number twenty- eight. 3382. District number twenty- nine. 3383. District number thirty. 3384. District number thirty- one. 3385. District number thirty- two. Section. 3386. District number thirty- three. 3387. District number thirty- four. 3388. District number thirty- five. 3389. District number thirty- six. 3390. District number thirty- seven. 3391. District number thirty- eight. 3392. District number thirty- nine. 3393. District number forty. 3394. District number forty-one. 3395. District number forty-two. 3396. Same. 3397. District number forty- three. 3398. District number forty- four. 3399. District number forty- five. 3400. District number forty-six. 3401. District number forty- seven. 3402. District number forty- eight. 3403. District number forty- nine. 3404. District number fifty. 3405. District number fifty-one. 3406. District number fifty-two. 3407. District number fifty- three. 3408. District number fifty- four. 3409. District number fifty- five. 3410. District number fifty- six. 3411. District number fifty- seven. 3412. District number fifty- eight. 3413. District number fifty- nine. 76 Section. 3414. District number sixty. 3415. District number sixty-one. 3416. District number sixty-two. 3417. District number sixty- three. 3418. District number sixty- four. 3419. District number sixty- five. 3420. District number sixty- six. Section. 3421. District number sixty- seven. 3422. District number sixty- eight. 3423. District number sixty- nine. 3424. District number seventy. 3425. Same Expenses of com- missioner. 3426. Jurisdiction of courts over district. into the said portion of the South Platte river. [L. '89, p. 212, 13; amending L. '87, p. 303, 1; which amended G. S., 1742; L. '79, p. 97, 6. 3355. District number two. Sec. 191. That district No. 2 shall consist of land irrigated from ditches taking water from the South Platte river and its tributaries, except Big Thompson, St. Vrain and Clear Creek, between the mouth of the Cache la Poudre and the mouth of Cherry Creek. [G. S., 1743; L. '79. p. 97, 7. 3356. District number three. Sec. 192. That district No. 3 shall consist of all lands irrigated from ditches taking water from the Cache la Poudre and its tributaries. [G. S., 1744 ; L. 79, p. 98, 8. 3357. District number four. Sec. 193. That district No. 4 shall consist of all lands irrigated from ditches taking water from the Big Thompson and its tributaries. [G. S., 1745; L. '79, p. 98, 9. 3358. District number five. Sec. 194. That district No. c shall consist of all lands irrigated from ditches taking water from the St. Vrain creek and its tributaries, except the Boulder, its tributaries, and Coal creek. [G. S., 1746; L. '79, p. 98, 10. 3359. District number six. Sec. 195. That district No. G shall consist of all lands irrigated from ditches taking w r ater from the Boulder and its tributaries, and Coal creek. [G. S., 1747 ;L. '79, p. 98, 11. 3360. District number seven. Sec. 190. That district No. 7 shall consist of all lands irrigated from ditches taking water from Clear creek and its tributaries. [G. S., 1748; L. '79, p. 98, 12. 3361. District number eight. Sec. 197. That water district No. 8 shall consist of all lands irrigated by ditches taking water from Cherry creek, Plum creek and Platte river and their tribu- taries, except Bear creek, above water district No. 2, and below the forks of the north and south branches of the South Platte river, and including all lands and ditches in Douglas county. [L. '99, p. 430, 1 ; amending G. S., 1749 ; L. '79, p. 98, 13. 77 3362. District number nine. Sec. 198. That district No. 9 shall consist of till lands irrigated by ditches taking water from Bear creek and its tributaries. [G. S., 1750 ; L. '79, p. 98, 14. 3363. District number ten New districts to be formed by gov- ernor. Sec. 199. That district N^o. 10 shall consist of all lands irrigated from ditches taking water from the Fountain and its tributaries: Provided. That said district shall not extend beyond the limits of El Paso county. Other irrigation districts may be formed from time to time by the governor, on petition of parties interested. [G. S., 1751; L. '79, p. 98, 15. [The title of the act of April 1, 1885, L. '85, p. 25G, purports to amend the above section.] 3364. District number eleven. Sec. 200. Water district No. 11 shall consist of all lands irrigated by water taken from that portion of the Arkansas river above water district No. 12, and from streams draining into the said portion of the Arkansas river. [L. '89, p. 369, 1 ; amending L. '85, p. 250, 4. 3365. District number twelve. Sec. 201. That district No. 12 shall consist of all lands irrigated from ditches or canals tak- ing water from that part of the Arkansas river lying in Fremont county; also, lands irrigated from ditches or canals taking water from the tributaries of said portion of the Arkansas river, except Texas creek, and its tributaries, and that part of Grape creek which lies above the south line of said Fremont county. [L. '95, p. 198, 1; amending L. '93, p. 301, 1; which amended L. '85, p. 257, 5. L. '93, p. 301, 1 ; which amended L. '85, p. 257, 5. 3366. District number thirteen. Sec. 202. That district No. 13 shall consist of all lands irrigated from ditches or canals taking water from Texas creek and its tributaries and that part of Grape creek and its tributaries lying in Ouster county. [L. '95, j). 198, 2; amending L. '93, p. 301, 1 ; which amended L. *S5, p. 257, 0. 3367. District number fourteen. Sec. 203. Water district No, 14 shall consist of all lands irrigated by water taken from that portion of the Arkansas river situated within the boundaries of Pueblo county and from the streams draining into the said portion of the Arkansas river, except the St. Charles and Huerfa- no rivers and their tributaries, and except also that portion of the Fountain embraced in water district No. 10, and the streams draining into the said portion of the fountain. [L. '89, p. 310. 2; amending L. '85, p. 25f , 7. 3368. District number fifteen. Sec. 204. That district No. 15 shall consist of all lands irrigated from ditches, or canals. 78 taking water from the St. Charles and its tributaries. [L. '85, p. 257, 8. 3369. District number sixteen. Sec. 205. That district No. 16 shall consist of all lands irrigated from ditches and canals taking water from the Huerfano and its tributaries. [L. '85; p. 257, 9. 3370. District number seventeen. Sec. 206. Water district No. 17 shall consist of all lands irrigated by water taken from that portion of the Arkansas river below water district No. 14 and above the mouth of the Purgatoire river, and from the streams draining into the said portion of the Arkansas river, ex- cept the Apishapa river and its tributaries. [L. 89, p. 370, 3; amending L. '85, p. 257, 10. 3371. District number eighteen. Sec. 207. That district No. 1.8 shall consist of all lands irrigated from ditches and canals taking water from the Apishapa and its tributaries. [L. '85, p. 257, 11. 3372. District number nineteen. Sec. 208. That district No. 19 shall . consist of all lands irrigated from ditches, or canals, taking water from the Purgatoire and its tributaries. [L. '85; p. 257, 12. 3373. District number twenty. Sec. 209. Water district No. 20 shall consist of all lands irrigated by water taken from that portion of the Rio Grande above the mouth of the Rio Cono- jos, and from the streams draining into the said portion of the Rio Grande, including Piedra, Spring, Gato and San Francisco creeks, and all other streams that would in time of flood flow into the said portion of the Rio Grande, although at ordinary stages the waters thereof might not flow upon the surface to the Rio Grande, except Alamosa river and its tributaries and the La Jara and Trinchera creeks and their tributaries; Provided, That nothing in this act shall be construed as inconsistent with the provisions of the acts creating water districts numbered twenty- five, twenty-six and twenty -seven. [L. '89, p. 218, 1 ; amending L. '87, p. 301, 1 and 2, which amended L. '85, p. 258, 13 and 16. 3374. District number twenty-one. Sec. 210. That district No. 21 shall consist of all lands irrigated from ditches or canals taking water from the Alamosa and La Jara creeks and their tributaries. [L. '85, p. 258, 14. 3375. District number twenty-two. Sec. 211. Tliat district No. 22 shall consist of all lands in the state of Colorado irrigated from ditches or canals taking water from Conejos creek and its tributaries. [L. '85, p. 258, 15. 3376. District number twenty-three. Sec. 212. Water dis- trict No. 23 shall consist of all lands in the state of Colorado 79 being, or to be, irrigated from ditches or canals taking water from the South Platte river, and from any of its direct, or in- direct, tributaries, at any point or points above water district No. 8, in the said state, and all lands upon the tributaries of the Arkansas river which lie within the boundaries of Park county. [L. '99, p. 431, 1 ; amending L. '89, p. 212, 69. 3377. District number twenty-four. Sec. 213. Water dis- trict No. 24 shall consist of all lands in the state of Colorado ir- rigated by water taken from that portion of the Rio Grande be- tween the mouth of the Rio Conejos and the Colorado state line, from the streams draining into the said portion of the Rio Grande and from Costilla creek, and the streams draining into Costilla creek. [L. '89, p. 370, 4; amending L. '85, p. 258, 17. 3378. District number twenty-five. Sec. 214. That water district No. 25 shall consist of all lands irrigated by water taken from the San Luis creek and all its tributaries. [L. '99, p. 237, 1; amending L. '89, p. 370, 5; amending L. '85, p. 258, 18. 3379. District number twenty-six. Sec. 215. That district No. 26 shall consist of all lands irrigated from ditches, or canals, taking water from Saguache creek and its tributaries. [L. '85, p. 258, 19. 3380. District number twenty-seven. Sec. 216. That dis- trict No. 27 shall consist of all the lands irrigated from ditches, or canals, taking water from Tuttle, Carnero, La Garita, and all other creeks, and their tributaries, which have their sources of water supply in the La Garita mountains and -flow eastward into the San Luis valley. [L. '85, p. 258, 20. 3381. District number twenty-eight. Sec. 217. That district No. 28 shall consist of all lands irrigated from ditches, or canals, taking water from the Tomichi and its tributaries. [L. '85, p. 259, 21. 3382. District number twenty-nine. Sec. 218. That district No. 29 shall consist of all lands lying in the state of Colorado irrigated from ditches, or canals, taking water from that part of the San Juan river, and its tributaries, which lie above the junction of the San Juan river and the Rio Piedra, and including the Rio Piedra. [L. '85, p. 259, 22. 3383. District number thirty. Sec. 219. That district No. 30 shall consist of all lands lying in the state of Colorado irri- gated from ditches, or canals, taking water from that part of the Rio Las Animas river, and its tributaries, which lie in Colorado. [L. '85, p. 259, 23. 3384. District number thirty-one. Sec. 220. That district No. 31 shall consist of all lands in the state of Colorado irrigated from ditches, or canals taking water from that part of the Los 80 Pinos river, and its tributaries, which lie in Colorado. [L. '85, p. 259, 24. 3385. District number thirty-two. Sec. 221. Water district No. 32 shall consist of all lands in the state of Colorado irrigated by water taken from those natural streams which drain into the San Juan river, and are not included in water districts numbers 29, 30, 31, 33 and 34. [L. '89, p. 371, 6; amending L. '85, p. 259, 25. 3386. District number thirty-three. Sec. 222. That district No. 33 shall consist of all lands lying in the state of Colorado irrigated from ditches, or canals, taking water from the La Plata river, and its tributaries, which lie in Colorado. [L. '85, p. 259, 26. 3387. District number thirty-four. Sec. 223. That water district No. 34 shall consist of all lands lying in the state of Colo- rado, irrigated from ditches or canals taking water from the Kio Mancos, and its tributaries ; and also all lands irrigated from ditches or canals taking w r ater from that part of the Dolores river within the boundaries of said Montezuma county, and from streams draining into said portion of Dolores river. [L. '97, p. 175, 1 ; amending L. '85, p. 259, 27. 3388. District number thirty-five. Sec. 224. That water dis- trict No. 3 shall consist of all lands lying in the county of Cos- tilla, in this state, watered by the Trinchera creek, Sand or Me- dano creek, Big Spring creek, Little Spring creek, Mosca creek. North and South Zapato creeks, Sierra Blanea creek, and all streams draining into the said creeks, and all other streams be tween said Trinchera creek and said Sand or Medano creek. [L. '99, p. 237, 2; amending L. -87, p. 307, 1. 3389. District number thirty-six. Sec. 225. That district No. 36 shall consist of all the lands irrigated from water taken from the Blue river and its tributaries. [L. '87, p. 313, 3. 3390. District number thirty-seven. Sec. 226. That district No. 37 shall consist of lands all lying in the state of Colorado irrigated by waters taken from the Eagle river and its tribu- taries. [L. '87, p. 313, 4. 3391. District number thirty-eight. Sec. 227. That district No. 38 shall consist of all the lands lying in the state of Colo- rado irrigated by water taken from the Roaring Fork river and its tributaries. [L. '87, p. 313, 5. 3392. District number thirty-nine. Sec. 228. The bounda- ries of water district No. 39 are hereby defined to include all th<^ tributaries of Grand river on the north side thereof, from the mouth of the Roaring Fork river, westerly to the state line; and 81 shall consist of all lands lying in the state of Colorado, irrigated by any and all such tributaries, excepting Roan creek, and its tributaries, and all lands irrigated thereby; and excepting also all lands lying in Mesa county. The said water district No. 39 shall include only all the lands in Garfield county, above de- scribed, and which are not irrigated from Roan creek or any of its tributaries. [L. '().">. p. 243, $1 ; amending L. '87, p. 314, 6. [For jurisdiction of district court over district No. .39, see section 3426.] 3393. District number forty. Sec. 229. That water district No. 40 shall consist of all lands irrigated from ditches taking water from Crystal creek and Smith's fork, Escalante creek, and their tributaries, all lands lying within the boundaries of Delta county irrigated from the Gunnison river and its tributaries, (except lands irrigated from the Fncompahgre river and its trib- utaries), and all lands in the county of Delta and the .county of Gunnison irrigated by ditches taking their water from the north fork of the Gunnison river and its tributaries. [L. '03, p. 296, 1 ; amending L. '87, p. 311, 2. 3394. District number forty-one. 'Sec. 230. That district No. 41 shall consist of all lands irrigated from ditches or canals taking water from the Uncompahgre river and its tributaries, except so much as are within the boundary lines of On ray county. [L. '87, p. 311, 3. 3395. District number forty-two. Sec. 231. That district Xo. 42 shall consist of all lands irrigated from ditches and canals taking water from the Grand and Gunnison rivers and their tributaries within the county of Mesa, except Escalante creek. [L. '03, p. 290. 2 ; amending L. '87, p. 311, 4. 3396 Same. Sec. 232. The boundaries of water district Xo. 42 shall not be construed to include any land hereinabove embraced in either of said water districts, 39 or 70 [L. '05, p. 243, :*. [For attachment of district 42 for adjudication of priorities, see section 3426.] 3397. District number forty-three. Sec. 233. That water district Xo. 43 is hereby established, and shall consist of all lands irrigated by ditches taking water from the White river and its tributaries. [L. '87, p. 307, 1. 3398. District number forty-four. Sec. 234. That water dis- trict Xo. 44 shall consist of all lands, irrigated by water taken from that portion .of the Yampa river above the mouth of the Little Snake river and below the mouth of Fortification creek, and from the streams draining into the said portion of the Yampa river. [L. '89, p. 211, 2; amending L. '87, p. 300, 1. 3399. District number forty-five. Sec. 235. That water dis- trict Xo. 45 shall consist of all lands situated on the south side 82 of the Grand river and irrigated from ditches or canals taking water from the Grand river and its tributaries, between the mouth of Roaring Fork river and the north line of Mesa county. [L. '89, p. 213, 17. 3400. District number forty-six. Sec. 236. That water dis- trict No. 46 shall consist of all lands irrigated by water taken from that portion of the North Platte river above the mouth of Michigan creek, and from the streams draining into the said portion of the North Platte river. [L. '89, p. 212, 10. 3401. District number forty-seven. Bee. 237. That water district No. 47 shall consist of all lands in the state of Colo- rado irrigated by water taken from that portion of the North Platte river between water district No. 46 and the state line of Colorado, 3. 3415. Bistrict number sixty-one. Sec. 251. That water dis- trict No. 61 shall consist of all lands in the state of Colorado irrigated from that portion of Dolores river between the month of San Miguel river and the county line of Dolores county, and from streams draining into the said portion of Dolores river. L L. '97, p. 175, 2; amending L. '89, p. 214, 24. 3416. District number sixty-two. Sec. 252. That water dis- trict No. 62 shall consist of all lands south of the Gunnison river irrigated by water taken from the Gunnison river below the mouth of Tomichi creek and above water district No. 40, and from the streams draining into the said portion of the Gunnison river. [L. '89, p. 214, 25. 3417. District number sixty-three. Sec. 25:?. That water district No. 63 shall consist of all lands in the state of Colorado irrigated by water taken from that portion of the Dolores river below the mouth of the San Miguel river and from the streams draining into the said portion of the Dolores river. [L. '89, p. 214, 26. 3418. District number sixty-four. Sec. 254. That water dis- trict No. 64 shall consist of all lands irrigated by water taken from that portion of the South Platte river between the west- ern boundary line of Washington county and the state line of Colorado and Nebraska, and from the streams draining into the said portion of the South Platte river. [L. '89, p. 213, 14. 3419. District number sixty-five. Sec. 255. That water dis- trict No. 65 shall consist of all lands in the state of Colorado irrigated by water taken from the middle and north forks of the Republican river, from Sandy and Frenchman's creeks, and the tributaries of these streams. [L. '89, p. 213, 15. 3420. District number sixty-six. Sec. 256. That water dis- trict No. 66 shall consist of all lands in the state of Colorado irrigated by water taken from the Dry Cimarron and the streams draining into the said river. [L. '89, p. 472, 2. 3421. District number sixty-seven. Sec. 257. That water district No. 67 shall consist of all lands in the state of Colorado irrigated by water taken from that portion of the Arkansas river below the mouth of the Purgatoire river, and from the streams draining into the said portion of the Arkansas river. [L. '89, p. 472, 3. 3422. District number sixty-eight. Sec. 258. Water district No. 68 shall consist of all lands irrigated by w T ater taken from that portion of the Uncompahgre river above water district No. 41, antf from the streams draining into the said portion of the Uncompahgre river. [L. '89, p. 213, 16. 3423. District number sixty-nine. Sec. 259. That water dis- trict Xo. 69 shall consist of all lands lying in the state of Colo- rado irrigated from ditches or canals taking water from those portions of the Dolores river within Dolores county, and from streams draining into said portion of the Dolores river. [L. '97, p. 175, *;{. 3424. District number seventy. Sec. 260. That water dis- trict No. 70 shall consist of all lands irrigated by water taken from Roan creek and all its tributaries situated within the counties of (larfield and Mesa, in this state, and also all lands in Mesa county situate north of Grand river and east of Roan creek. [L. '05, p. 243, *2. 3425. Same Expenses of commissioner. Sec. 261. All charges of the water commissioner and his deputies, that may be appointed for said water district No. 70, shall be borne equally between the counties of Garfield and Mesa. [L. '05, p. 244, 6. 3426. Jurisdiction of courts over districts. Sec. 262. The district court of Garfield county shall retain and have jurisdic- tion over the adjudication of water rights and priorities in said water districts Xos. 39 and 70, and the district court of Mesa county shall retain and have jurisdiction of water rights and priorities in said water district No. 42. [L. '05, p. 244, 5. B. WATER COMMISSIONER. Section. 3434. Pay of commissioner Accounts District in two counties. Section. 3427. Water commissioners Appointment Term of office Bond. 3428. Vacancies, how filled Re- moval. 3429. Take oath of office within ten days. 3430. Commissioner begin work when called on. 3431. Commissioner to devote entire time Neglect. 3432. Duty of commissioner- Open and shut head- gates. 3433. Powers of commissioner Commissioner subordi- nate to state and di- vision engineers. 3427. Water commissioners Appointment Term of office Bond. Sec. 263. There shall be one water commissioner for 3435. 3436. 3437. 3438. 3439. Deputy commissioner Appointment Salary. Commissioner may em- ploy assistance Salary. Accounts kept of assist- ants' time. Commissioner inspect ditches Waste of water. Failure of commissioner to perform duty Pen- alty. 86 each of the above named districts, and for each district here- after formed, who shall be appointed by the governor, to be selected by him from persons recommended to him by the sev- eral boards of county commissioners of the counties into which water districts may extend; and the water commissioner so appointed, shall, before entering upon his duties, give a good and sufficient bond for the faithful discharge of his duties, with not less than three sureties, in a sum not less t'han one thousand nor more than five thousand dollars, the amount of said bond to be fixed by the county commissioners, and approved by the governor and state engineer. The commissioner so appointed shall hold his office until his successor is appointed and quali- fied; Provided, however, That if such water district shall be embraced in more than one county, and the several counties in which such water , district is situated, disagree as to the amount of the bond as herein required of water commissioners, then and in that event the governor shall fix the amount there- of, with the same effect as though fixed by the county commis- sioners. [L. '87, p, 302, 1; amending G. S., 1752; L. '79, p. 98, 16. 3428. Vacancies, how filled Removal. Sec. 264. The gov- ernor shall, by like selection and appointment, fill all vacancies which may be occasioned by death, resignation or continued absence from the district, removal, or otherwise. Said county commissioners may, from time to time, recommend persons to be appointed as above provided, and the governor may, at any time, remove any water commissioner, in his discretion. [L. '87, p. 303, 2. 3429. Oath of office within ten days. Sec. 265. That within ten days after his appointment, and before entering upon the duties of his office, such water commissioner shall take and subscribe the oath of office prescribed by the constitution of this state. [G. S., 1753; L. '79, p. 99, 17. 3430. Commissioner begin work when called on. Sec. 266, Said water commissioners shall not begin their work until they shall be called on by tw r o or more owners or managers or persons controlling ditches in their several districts by appli- cation in writing stating that there is necessity for their action ; and they shall not continue performing services after the neces- sity therefor 'Shall cease. [G. S., 1758; L. '79, p. 107, 42. [Penalty for failure of commissioner tot act. Section 3258.] 3431. Commissioners to devote entire time Neglect. Sec. 267. It is hereby made the duty of the water commissioner after being called upon to distribute water, to devote his entire time to the discharge of his duties when such duties are required, 87 so long as the necessities of irrigation in his district shall require; and it is made his duty to be actively employed on the line of the stream or streams in his water district, supervising and directing the putting in of head-gates, waste gates, keeping the stream clear of unnecessary dams or other obstructions, and such other duties as pertain to a guard of the public streams in his water district; and for wilful neglect of his duty, he shall be liable to fifty dollars fine, with costs of suit. [L. '89, p. 471, 6. [Report of commissioners. Se'ction 3348.] 3432. Duty of commissioners Open and shut head-gates. Sec. 268. It shall be the duty of said water commissioners to divide the water in the natural stream or streams of their district among the several ditches taking water from the same, accord- ing to the prior rights of each respectively; in whole or in part to shut and fasten, or cause to be shut and fastened, by order given to any sworn assistant, sheriff or constable of the county in which the head of such ditch is situated, the head-gates of any ditch or ditches heading in any of the natural streams of the district, which, in a time of a scarcity of water, shall not be entitled to water by reason of the priority of the rights of others below them on the same stream. [G. S., 1754; L. '79, p. 99, 18. [When commissioner shall withdraw excess water from reservoir. Section 3208.] 3433. Powers of commissioner Commissioner subordinate to state and division engineers. Sec. 269. Water commissioners shall, in the discharge of their duties, be invested with the powers of constables, and may arrest any person violating hi,s orders relative to the opening or shutting down of head gates, or the using of water for irrigation purposes, and take such offender before the nearest justice of the peace, who may, if such offender be convicted, fine him in any sum not exceeding one hundred dollars, and, in default of the payment of such fine, may imprison him in the county jail not exceeding thirty days; Proridcd, That the orders of the superintendents of irri- gation in their respective divisions, and the orders of the state engineer, shall be held at all times superior to the orders of water commissioners, and shall relieve any person acting in accordance with such superior orders from the penalties herein provided; And provided, also, That in like manner the orders issued by the state engineer shall be held superior to any order issued by any superintendent of irrigation. [L. '89, p. 469, 1. [Supervision of state engineer over commissioners. Section 3324.] 3434. Pay of commissioner Accounts District in two coun- ties. Sec. 270. The water commissioner shall be entitled to 88 pay at the rate of five (5) dollars per day for each day he shall actually be employed in the duties of his office, and be paid by the county or counties in which his irrigating district may lie. Each water commissioner shall keep a just and itemized ac- count of the time spent by him in the duties of his office, and shall present a true copy thereof, verified by oath, to the board of county commissioners of the county in which his district may be, and said board of commissioners shall allow the same; and if- said irrigation district shall extend into two or more counties, then such water commissioner shall present his ac for his services, verified as aforesaid, to the board of county commissioners into which his district extends, and each board of county commissioners shall pay its pro rata share thereof. [L. '9, p. 470, 2; amending L. '85, p. 254, 1; which amended G. 6., 1756. L. '79, p. 106, 36. [For payment of expenses of commissioner of district No. 70, see section 3426.] 3435. Deputy commissioner Appointment Salary. Sec. 271. The water commissioner is hereby authorized to appoint not to exceed two deputies to speedily make the examinations provided for in section 1 of this act, who shall be entitled to the same compensation, and to be paid in the same manner as is by law provided for the payment of other deputy water commissioners. [L. '95, p. 197, 2. [Section 1 above referred to is section 3438.] 3436. Commissioner may employ assistance Salary. Sec. 272. The water commissioner is hereby given power, whenever he shall deem it necessary, to employ a suitable assistant, or assistants, to aid him in the discharge of his duties; such assistant, or assistants, shall take the same oath as water commissioner, and shall obey his instructions, and shall be entitled to pay at the rate of two dollars and fifty cents (|2.50) per day for every day they are so employed, to be paid by county commissioners upon the certificates of the water commissioners. [L. '89, p. 470, 3; amending by implication, G. S., 1757; L. '79, p. 107, 41. 3437. Accounts kept of assistant's time. Sec. 273. Each water commissioner shall keep an itemized account of the time of each assistant by him employed, and shall certify the same to the board of county commissioners, who shall pay such as- sistant, or assistants, in the same manner as provided for pay- ment of water commissioners in section two of this act. [L. '89, p. 470, 4. [Section 2 referred to is section 3434.] 3438. Commissioner inspect ditches Waste of water. Sec. 274. The water commissioners of the several water districts of this state are hereby empowered, and it is hereby made their 80 duty, upon the application of the owners of one or more ditches in their district, to immediately make, or cause to be made, a thorough examination of all ditches within their district for the purpose of ascertaining what use is being made by the owners of or consumers of water from said ditches; and if at any time he shall ascertain that the owner or owners of any ditch drawing water from the natural streams furnishing water to his district shall be permitting any of the waters flowing in such ditch to go to waste, or to be wastefully, or extravagantly or wrongfully, used by its water consumers, or put to any other use than that to which it is entitled to be used in the order of priority, at such times as the same is being needed by other appropriators, it shall be the duty of such water commissioners to immediately shut off the supply of water in such ditch to such an extent as in his judgment was wasted, or extravagantly, wastefully or wrongfully used. [L. '95, p. 197, 1. 3439. Failure of commissioner to perform duties Penalty. Sec. 275. Any water commissioner who fails to perform any of the duties imposed upon him by this act shall be deemed guilty of a misdemeanor, and, upon conviction thereof by a court of competent jurisdiction, shall be fined in a sum not less than fifty (50) dollars nor more than five hundred (500) dollars. [L.' '95, p. 198, 3. [For bribery of water commissioners see section 1723.] 90 VIII. IRRIGATION DISTRICTS. Section. 3440. Irrigation districts. 3441. Petition. x 3442. Presentation and allow- ance of petition. 3443., Notice Election. 3444. Same Canvass of votes Proclamation. 3445. Officers E 1 e c t i o n Bond. 3446. Same Election notice. 3447. Same Election officers' duties. 3448. Same Canvass of votes. 3449. Same Records Vacan- cies and term of office. 3450. Board of directors Officers General duties Ratio of water distri- bution. 3451. Directors Meetings Duties D o m a i n Public use. 3452. Property Title. 3453. Conveyances Suits. 3454. .Bonds Elections. 3455. Bonds Sale Proceeds. 3456. Bonds Payment Lien. 3457. Board of directors Levy. 3458. Assessor Assessment. 3459. County commissioners. 3460. District treasurer. 3461. Assessment Collection. 3462. Construction Contracts. 3463. Claim Audit Payment Financial report. 3464. Expense of organization, how defrayed. 3465. Crossing streams, high- ways, railroads, state lands, etc. Section. 3466. Officers' salaries Not in- terested in contracts. 3467. Limit of indebtedness. 3468. Insufficient supply Dis- tribution. 3469. Compensation for prop- erty taken. 3470. Boundaries Change of Effect. " 3471. Contiguous territory An- nexation Petition. 3472. Contiguous territory No- tice. 3473. Contiguous territory Hearing. 3474. Payment. 3475. Boundaries Orders. 3476. Order Record Effect. 3477. Records Evidence. 3478. Legal representatives pe- titioners. 3479. Redivision of district Election of officers. 3480. Exclusion of lands. 3481. Petition for exclusion. 3482. Same Notice. 3483. Same Hearing. 3484. Same Orders. 3485. Order Record Effect. 3486. Division of district. 3487. Dissolution of district- Election. 3488. Sam6 Canvass Record. 3489. Judicial examination and confirmation. 3490. Same Petition. 3491. Same Notice of hearing. 3492. Same Answer Plead- ing. 3493. Same Determination Costs. 3494. Repeal Saving Clause. 3440. Irrigation district. Sec. 276. Whenever a majority of the resident freeholders owning lands in any district desire to provide for the Irrigation of the same they may propose the or- ganization of an irrigation district under the provisions of this act, and when so organized each district shall have the powers conferred or that may hereafter be conferred by law upon such irrigation district; Provided, That where ditches, canals or reser- voirs have been constructed before the passage of this act, such ditches, canals, reservoirs and franchises, and the lands watered thereby, shall be exempt from the operation of this law, except such district shall be formed to purchase, acquire, lease or rent 91 such ditches, canals, reservoirs and their franchises. [L '05 p. 246, 1. 3441. Petition. Sec. 277. For the purpose of the estab- lishment of an irrigation district as provided by this act, a peti- tion shall be filed with the board of county commissioners of the county which embraces the largest acreage of the proposed dis- trict ; said petition shall state that it is the purpose of petitioners to organize an irrigation district, under the provisions of this act; said petition shall also contain a general description of the boundaries of such proposed district, the means proposed to supply water for the irrigation, of the lands embraced therein, the name proposed for such district and shall select a committee of three of said petitioners to present such petition to the board of county commissioners as provided by law, praying that the said board define and establish the boundaries of said proposed district and submit the question of the final organization of the same to the vote of the qualified ejectors resident within said proposed district; said petition shall be signed by a majority of the resident freeholders within said proposed district, and who shall also be the owners in the aggregate of a majority of the whole number of acres belonging to the resident freeholders within the said proposed district. The said petition shall also be accompanied by a good and sufficient bond, to be approved by said board of county commissioners in double the amount of the probable cost of organizing such district, conditioned for the payment of all costs incurred in said proceedings in case said organization shall not be effected, but in case such district is so effected, then said expenses incurred by the board of county com- missioners shall be paid back to said county by said district. Such petition shall be published for at least two weeks before the time at which the same is to be presented, in some newspaper of general circulation printed and published in the county where said petition is to be presented, together with a notice signed by the committee. of said petitioners selected by the petition for that purpose giving the time and place of the presentation of the same to said board of county commissioners. [L. '05, p. 246, 2. 3442. Presentation and allowance of petition. Sec. 278. When such petition is presented and it shall appear that the notice of the presentation of said petition has been given as required by law, and that said petition has been signed by the requisite number of petitioners as required by this act, the com- missioners shall then proceed to define the boundaries of said proposed district from said petition and from such applications for the exclusion of lands therefrom and the inclusion of lands therein as mav be made in accordance with the intent of this act; 92 they may adjourn such examination from time to time not exceed- ing three weeks in all and shall by final order duly entered define and establish the boundaries of such-proposed district; Provided, That said board shall not modify such proposed boundaries de- scribed in the petition so as to change the objects of said petition or so as to exempt from the operation of this act any land within the boundaries proposed by the petition susceptible to irrigation by the same system of water works applicable to other lands in such proposed district; nor shall any land which will not in the judgment of the board be benefited by such proposed system be included in such district if the owner thereof shall make appli- cation at such hearing to withdraw the same, Provided, also, That contiguous lands not included in said proposed district as described in the petition may upon application of the owner or owners be included in such district upon such hearing. When the boundaries of any proposed district shall have been examined and defined as aforesaid the county commissioners shall forthwith make an order allowing the prayer of said petition, defining and establishing the boundaries and designating the name of such proposed district. Thereupon the said commis- sioners shall by further order duly entered upon their record call an election of the qualified electors of said district to be held for the purpose of determining whether such district shall be organized under the conditions of this act, and by such order shall submit the names of one or more persons from each of the three divisions of said district as hereinafter provided to be voted for as directors therein, and for the purposes of said election shall divide said district into three divisions as nearly equal in size as may be practicable and shall provide that a qualified elector of each of said three divisions shall be elected as a member of the board of directors of said district by the qualified electors of the whole district. Each of said divisions shall constitute an election precinct and three judges shall be appointed for each of such precincts, one of whom shall act as clerk of said election; Provided,, That in the hearing of any such petition the board of county commissioners shall disregard any informality therein, and in case they deny the same or dismiss it for any reasons on account of the provisions of this act not having been complied with, which are the only reasons upon which they shall have a right to refuse or dismiss the same, they shall state their reasons in writing therefor in detail, which shall be entered upon their records and in case these reasons are not well founded, a writ of mandamus shall, upon proper application therefor, issue out of the district court of said county, com- pelling them to act in compliance with this act, which writ shall be heard within twentv davs from the date of its issuance, and 93 which twenty days shall be excluded from the forty days given the commissioners herein to act upon said petition. The officers of such district shall consist of three directors, a secretary and treasurer. [L. '05, p. 247, $3. 3443. Notice Election. Sec. 271). The board of county commissioners shall thereupon cause a notice embodying said orders in substance signed by the chairman of the board of county commissioners and the clerk of said board to be issued, given and published, giving public notice of said election, the time and places thereof, the matters submitted to the vote of the electors ; said notice and order shall be published once a week for at least three weeks prior to such election in a newspaper of general circulation in said county, and if any portion of such proposed district lies within any other county or counties then such order and notice shall be published in a newspaper of gen- eral circulation published within each of said counties. At all elections held under the provisions of this act all persons shall be entitled to vote, who are resident freeholders of agricultural lands within said district, or who are the owners of lands to the extent of forty acres or more within said district and reside within any county into which any part of said district shall extend, and who are qualified electors under the general laws of the state therein and who shall have paid property taxes upon property located within said district during the year pre- ceding any such election. Electors not residing within the district shall be entitled to vote only within the division of such district wherein their lands or a major portion thereof are located; and any person entitled to vote as aforesaid, shall also be eligible to election as a director in and for the division in such district, in which the major portion of his lands are located. The ballots to be used and cast at such election for the formation of such district shall be substantially as follows: "Irrigation District Yes," or "Irrigation District No," or words equivalent thereto, and shall also contain the names of the persons to be voted for as members of the board of directors of said district; each elector may vote for three directors, one from each division, and shall indicate his vote by placing a marginal cross upon the ballot for or against any question sub- mitted or name voted upon and opposite thereto at any election held under this act. [L. '07, p. 488, 1; amending L. '05, p. 249, 4. 3444. Same Canvass of votes Proclamation. Sec. 280. The said board of county commissioners shall meet on the second Monday next succeeding such election and proceed to canvass the votes cast thereat; and if, upon such canvass, it appears that 94 at least a majority of said legal electors in said district have voted "Irrigation District Yes/' the said board shall, by an order entered on their minutes, declare such territory duly or- ganized as an irrigation district, under the name and style theretofore designated, and shall declare the persons receiving, respectively, the highest number of votes for such several offices, to be duly elected to such office. Said board shall cause a copy of such order, including a plat of said district, duly certified by the clerk of the board of county commissioners, to be immedi- ately filed for record in the office of the county clerk of each county in which any portion of such lands a-re situated and no board of county commissioners of any county, including any portion of such district, sjiall, after the date of organization of such district, allow another district to be formed, including any of the lands of such district, without the consent of the board of directors thereof; and from and after the date of such filing, the organization of such district shall be complete, and the officers thereof shall immediately enter upon the duties of their respec- tive offices, upon qualifying in accordance with law, and shall hold such offices, respectively, until their successors are elected and qualified. For the purpose of the election above provided for, the said board of county commissioners must establish a convenient number of election precincts and polling places in said proposed district, and define the boundaries thereof, which said precincts may thereafter be changed by the board of directors of such districts, and shall also appoint the judges of election for each such precinct, one of whom shall act as clerk of election. [L. '05, p. 249, 5. 3445. Officers Election Bond. Sec. 281. The regular elec- tion of said district, for the purpose of electing a board of directors shall be held on the first Tuesday after the first Monday in December of each year, at which time one director shall be elected for a term of three years. Provided, That at the first elec- tion held to choose the first board of directors, after the organiza- tion of any district shall have been effected, the person having the highest number of votes shall continue in office for the full term of three years; the next highest two years; and the next highest one year. But if two or more persons have the same number of votes, then their term shall be determined by lot, under the direction of the county judge of the county wherein the organization of said district shall have been effected. The person receiving the highest number of votes for any office to be filled at such election is elected thereto. Within ten days after receiving their certificates of election hereinafter provided for said officers shall take and subscribe the official oath and file the same in the office of the county clerk wherein the organization was effected, and on the ( first day of January following, shall assume the duties of their respective offices. Each member of the board of directors shall execute an official bond in the sum of three thousand (3,000) dollars which bond shall be approved by the county judge of the county wherein such organization was effected, and shall be recorded in the office of the county clerk thereof. All official bonds herein provided shall be in form prescribed by law for official bonds for county officials, except that the obligee named in said bonds shall be to the district, and shall be filed with the county clerk at the same time as the filing of the oath herein provided. Provided, further, That in all irrigation districts heretofore organized and now exercising the powers granted by law, the term of office of two of the members of their boards of directors is hereby extended for a period of one and two years respectively, and it shall be the duty of said board of directors at their regular meeting held in October, 1907, to determine by lot, under the direction of the county iudge of the county wherein such organization w r as effected, which of said directors shall serve the additional one or two years respectively. [L. '07, p. 489, 2; amending L. '05, p. 250, 6. [See Chapter 99, Official Bonds. See also section 1353.] 3446. Same Election notice. Sec. 282. The office of the board of directors shall be located in the county where the or- ganization was effected. Fifteen days before any election held under this act, subsequent to the organization of the district, the secretary who shall be appointed by the board of directors- shall cause 1 notice 1 specifying the polling places of each precinct to be posted in three public places in each election precinct, of the time and place of holding the election, and shall also post a general notice of the same in the office of said board, which shall be established and kept at some fixed place to be determined by said board in said county. Prior to the time for posting the notices, the board must appoint from each precinct, from the electors thereof, three judges, one of whom shall act as clerk, who shall constitute a board of election for such precinct. If the board fails to appoint a board of election, or the members appointed do not attend the opening of polls on the morning of election, the electors of the precinct present at that hour may appoint the board, or supply the place of an absent member thereof. The board of directors must, in its order appointing the board of election, designate the hour and the place in the pre- cinct where the election must be held. [L. '05, p. 251, 7. 3447. Same Election officers' duties. Sec. 283. One of the judges shall be chairman of the election board and may: First Administer all oaths required in the progress of an election. Second Appoint judges and clerks, if during the progress of the election any judge or clerk ceases to act. Any member of the board of election, or any clerk thereof, may administer and certify oaths required to be administered during the progress of an election. Before opening the polls, each member of the board must take and subscribe an oath to faithfully perform _the duties imposed upon them by law. Any elector of the pre- cinct may administer and certify such oath. The polls must be opened at eight o'clock in the morning of election and be kept open until six o'clock p. m. of the same day. It shall be the duty of the clerk of the board of election to forthwith deliver the re- turns duly certified to the board of directors of the district. [L. '05, p. 251, 8. 3448. Same Canvass of votes. Sec. 284. No lists, tally paper, or certificates returned from any election shall be set aside or rejected for want of form, if it can be satisfactorily understood. The board of directors must meet at its usual place of meeting on the first Monday after election and canvass the returns. If at the time of meeting the returns from each precinct in the district in which the polls were open have been received, the board of directors must then and there proceed to canvass the returns; but if all the returns have not been received, the canvass must be postponed from day to day until the returns have been received, or until six postponements have been had. The canvass must be made in public and by opening the returns and counting the votes of the district for each person voted for, and declaring the results thereof. The board shall declare elected the person receiving the highest number of votes so re- turned for each office, and also declare the result of any question submitted. [L. '05, p. 252, 9. 3449. Same Records Vacancy and term of office. Sec. 285. The secretary of the board of directors must, as soon as the result of any election held under the provisions of this act is declared, enter in the records of such board and file with the county clerk of the county in which the office of said district is located, a statement of such results, which statement must show: First A copy of the publication notice of said election. Sec- ond The names of the judges of said election. Third The w^hole number of votes cast in the district and in each precinct of the district. Fourth The names of the persons voted for. Fifth The office to fill which each person was voted for. Sixth The number of votes given in each precinct for each of such per- sons. Seventh The number of votes given in the district for each of such persons. Eighth The names of the persons de- clared elected, \inth- The result declared on any question sub mitted in accordance with the majority of the votes cast for or against such question. The board of directors must declare elected the person having the highest number of votes given for each office, and also the result of any question submitted. The secretary must immediately make out and deliver to such person a certificate of election, signed by him and authenticated with the seal of the board. In case of a vacancy in the board of directors, by death, removal, or inability from any cause, to properly discharge the duties as such director, the vacancy shall be filled by appointment by the remaining members of the board, and upon their failure or inability to act within thirty days after such vacancy occurs, then upon petition of five electors of said district the board of county commissioners of the county where the office of said board of directors is situate, shall fill such vacancy or vacancies. Any director appointed as above provided shall hold his office until the next general election of said dis- trict, and until his successor is elected and qualified. [L. '05, p. 252, 10. 3450. Board of directors Officers General duties Ratio of water distribution. Sec. 286. The directors, having duly quali- fied, shall organize as a board, elect a president from their num- ber, and appoint a secretary. The board shall have power, and it shall be their duty, to adopt a seal, manage and conduct the af- fairs and business of the district, make and execute all necessary contracts, employ such agents, attorneys, officers and employes as may be required, and prescribe their duties, establish equita- ble rules and regulations for the distribution and use of water among the owners of said land, and generally to perform all such acts as shall be necessary to fully carry out the purposes of this i act. Said board shall have the power in addition to the means to supply water to said district proposed by the petition submitted for the formation of said district, to construct, acquire or purchase any and all canals, ditches, reservoirs, reservoir sites, water, water rights, rights of way or other property neces- sary for the use of the district. In case of the purchase of any property by such district the bonds of the district hereinafter provided for may be used at their par value in payment without previous offer of such bonds for sale. But no contract involving a consideration exceeding ten thousand (10,000) dollars, and not exceeding twenty-five thousand (25,000) dollars shall be binding, unless such contract shall be authorized and ratified in writing by not less than one-third of the legal electors of said district according to the number of votes cast at the last district elec- tion; nor shall any contract in excess of twenty-five thousand (25,000) dollars be binding until such contract shall have been 08 authorized and ratified at an election, in manner as is provided for the issue of bonds. The said rules and regulations shall be printed in convenient form- as soon as the same are adopted, for distribution in the district. All waters distributed shall be apportioned to each land owner pro rata to the lands assessed under this act within such district. The board of directors shall have power to lease or rent the use of water or contract for the delivery thereof to occupants of other land within or without the said district at such prices and on such terms as they deem best, provided the rental shall not be less than one and one-half times the amount of the district tax for which said land would be liable if held as a freehold; And provided, further, Xo vested or prescriptive right to the use of such water shall attach to said land by virtue of such lease or such rental, provided that any land owner in said district may with the consent of the board of directors assign the right to the whole or any portion of the water so apportioned to him for any one year where practicable to any other bona fide land owner, to be used in said district for use on his land for said year, provided such owners shall have paid all amounts due on assessments upon all such lands. [L. '05, p. 253, 11. 3451. Directors Meetings Duties Domain Public use. Sec. 287. The board of directors shall hold a regular quarterly meeting in their office on the first Tuesday in January, April, July and October, and such special meetings as may be required for the proper transaction of business. All special meetings shall be called by the president of the board, or any two direct- ors. All meetings of the board must be public, and two members shall constitute a quorum for the transaction of business; and on all questions requiring a vote there shall be a concurrence of at least two members of said board. All records of the board must be open to the inspection of any elector during business i hours. The board, its agents, and employes, shall have the right to enter upon any land in the district, to make surveys and to locate and construct any canal or canals, and the necessary laterals. Said board shall also have the right to acquire all lands, water rights, franchises and other property necessary for the construction, use, maintenance, repair, and improvement of its canals, ditches, reservoirs and water works; and shall also have the right, by purchase or condemnation to acquire rights of way for the construction or enlargement of any of its ditches, canals or reservoirs, also lands for reservoir sites. [L. '05, p. 254, 12. 3452. Property Title. Sec. 288. The title to all property acquired under the provisions of this act shall immediately and 99 by operation of law vest in such irrigation district, in its cor- porate name, and' shall be held by such district in trust for, and is hereby dedicated and set apart for the uses and purposes set forth in this act, and shall be exempt from all taxation, and. said board is hereby authorized and empowered to hold, use and ac- quire, manage, occupy and possess said property as herein pro- vided; Provided, That when any district contemplated in this act shall find it necessary to procure and acquire a supply of water from outside the boundaries of this state, then and in such event it shall be lawful for said district to contract and pay for the same in the same manner as other property acquired by the district is purchased and paid for. [L. '05, p. 255, 13. 3453. Conveyances Suits. Sec. 289. The said board is hereby authorized and empowered to take conveyances or assur- ances for all property acquired by it under the provisions of this act in the name of such irrigation district to and for the purposes herein expressed and to institute and maintain any and all ac- tions and proceedings, suits at law or in equity, necessary or proper in order to fully carry out the provisions of this act or to enforce, maintain, protect, or preserve any or all rights, privi- leges and immunities created by this act or acquired in pursu- ance thereof. And in all courts, actions, suits, or proceedings the said board may sue. appear and defend in person or by attor- neys and in the name of such irrigation district. Judicial notice shall be taken in all actions, suits and judicial proceedings in any court of this state of the organization and existence of any irrigation district of this state, now or hereafter organized, from and after the filing for record in the office of the county clerk of the certified copy of the order of the board of county com- missioners mentioned in section 3 of this act; and a certified copy of said order shall be prima facie evidence in all actions, suits and proceedings in any court of this state of the regularity and legal sufficiency of all acts, matters and proceedings therein recited and set forth; and any such irrigation district, in regard to which any such order has been heretofore or may hereafter be entered, and such certified copy thereof, so filed for record, and which has exercised or shall exercise the rights and powers of such a district, and shall have had or shall have in office a board of directors exercising the duties of their office and the legality or regularity of the formation or organization whereof shall not have been questioned by proceedings in quo warranto instituted in the district court of the county in which such dis- trict or the greater portion thereof is situated within one year from the date of such filing, shall be conclusively deemed to be a legally and regularly organized, established and existing irri- 100 >u district within the meaning of tl lawful formation and organization shall n<> tioned in any action, suit or proceeding wh"th the provisions of this act or otherwise. [L. 4. [Section 3 above referred to is section 2442.] 3454. Bonds Elections. Sec. 290. For the purpose structing or purchasing or acquiring necessary reserv reservoirs, water rights, canals, ditches and works, and acquiring the necessary property and rights therefor, for the purpose of paying the first year's interest upon the bonds herein authorized, and otherwise carrying out the provisions of this fc board of directors of any such district shall, as soon after such d . has been organized as may be practicable, estimate and mine the amount of money necessary to be raised for such pur- poses, and shall forthwith call a special election, at which tion shall be submitted to the electors of such district possess- ing the qualifications prescribed by this act the quest! whether or not the bonds of said district shall be issued in the amount so determined. A notice of snch election mnst be . by posting notices in three public places in each ejection pr in said district for at least twenty days, and also by publication of snch notice in some newspaper published in the county where the office of the board of directors of such district is required to be kept, once a week for at least three Mcccam Snch notice shall specify the time of holding the election, the amount of bonds proposed to be issued, and said election must be held and the result thereof determined and declared in all respects as nearly as possible in conformity wit* the prov of this act governing the election of officers: /Yorirfrrf. That no informalities in conducting such election shaH invalidate the same if the election shall hare been otherwise fairly cond ich election the ballots shall contain the words -Bonds >r "Bonds Xo~ or words equivalent thereto. If a majority of the legal electors who are freeholders and taxpayers v said district have voted ~Bonds Yes~ the board of dir^ shall immediately cause bonds in snch amount to be issued and able in series as follows, to w At the expiration of eleven years, not less than five : of the whole amount and number of said bonds; at the expiration of twelve years, not less than six per cent, of the whole amount and number of said bonds: at the expirati< not less than seven per cent, of the whole amount and number of said bonds: at the expiration of fourteen - eight per cent, of the whole amount and number of said bonds; at the expiration of fifteen years, not less than n: 101 of the \vhoh- ;iiiier of said bonds; at the expiration u Mi per ent. of the whole amount xpi ration of seventeen years, than el f the whole amount and number id bonds: at the expiration of eighteen years, not less than thir*- lit. of the whole amount and number of said t thp expiration of nineteen years, not less than fifteen .vhole amount and number of said bonds; at the itage sufficient to pay off the id bonds: that the several enumerated percent- ntire amount of the bond issue; that each bond payable at the given time for its entire amount, and not -.tid bonds shall bear interest at the rate per cent, per annum payable semi-annually lay of June and December of each year. The princi- y the authority of this act. stating its title and date of approval. The secretary shall keep a record of the bonds their number, date of sale, the price received, and the name of the purchaser. Provided. Any such district may, by a ma- f the legal electors of said district, provide for the of bonds that will mature in any number of years less than twenty, and arrange for the payment thereof, in seri e provided: Provided, further. That when the money pro- vided by any previous issue of bonds has become exhausted by expenditures herein authorized therefor, and it becomes n ise additional money for such purposes, additional is may be issued submitting the question at special election to the qualified voters of said district, otherwise complying with the provisions of this section in respect to an original issue of such bonds: Provided, also. The lien for taxes, for the payment of the interest and principal of any bond issue, shall be a prior lien to that of any subsequent bond issue. [L. "05. p. -5*5. $15. 102 3455. Bonds Sale Proceeds. Sec. 291. The board may sell bonds from time to time in such quantities as may be neces- sary and most advantageous to raise the money for the construc- tion or purchase of canals, reservoir sites, reservoirs, water rights and works, and otherwise to fully carry out the object and pur- poses of this act. Before making any sale the board shall, at a meeting, by resolution declare its intention to sell a specified amount of the bonds and the day and hour and place of such sale, and shall cause such resolution to be entered in the minutes, and notice of the sale to be given by publication thereof at least twenty days in a daily newspaper published in the city of Denver, and in any other newspaper, at their discretion. The notice shall state that sealed proposals will be received by the board at their office, for the purchase of the bonds, till the day and hour named in the resolution. At the time appointed the board shall open the proposals and award the purchase of the bonds to the highest responsible bidder and may reject all bids; but said board shall, in no event, sell any of said bonds for less than ninety-five per- cent, of the face value thereof. In case no bid is made and ac- cepted as above provided the board of directors is hereby author- ized to use said bonds for the purchase of canals, reservoir sites, reservoirs, water rights and works, or for the construction of any canal, reservoir and works; Provided, Such bonds shall not be so disposed of at less than ninety-five per cent, of the face value thereof. [L. '05, p. 258, 16. [State may purchase ten per cent, of the bomd issue. Section 5198.] 3456. Bonds Payment Lien. Sec. 292. Said bonds, and the interest thereon, shall be paid by revenue derived from an annual assessment upon the real property of the district, and the real property of the district shall be and remain liable te be assessed for such pavments as herein provided. [L. -05, p. 259, 17. 3457. Board of directors Levy. Sec: 293. It shall be the duty of the board of directors, on or before September first of each year, to determine the amount of money required to meet the maintenance, operating and current expenses for the ensuing year, and to certify to the county commissioners of the county in which the office of said district is located, said amount, together with such additional amount as may be necessary to meet any deficiency in the payment of said expenses theretofore incurred. [L. '05, p. 259, 18. 3458. Assessor Assessment. Sec. 294. It shall be the duty of the county assessor of any county embracing the whole or a part of any irrigation district, to assess and enter upon his rec- ords as assessor in its appropriate column, the assessment of all 103 real estate, exclusive of improvements, situate, lying and being within any irrigation district in whole or in part of such county. Immediately after said assessment shall have been extended as provided by law, the assessor shall make returns of the total amount of such assessment to the county commissioners of the county in which the office of said district is located. All lands w T ithin the district for the purposes of taxation under this act shall be valued by the assessor at the same rate per acre; Pro- vided, That in no case shall any land be taxed for irrigation pur- poses under this act, w^hich from any natural cause cannot be irrigated, or is incapable of cultivation. [L. '05, p. 259, 19. 3459. County commissioners. Sec. 295 It shall be the duty of the county commissioners of 'the county in which is located the office of any irrigation district, immediately upon receipt of the returns of the total assessment of said district, and upon the receipt of the certificate of the board of directors certifying the total amount of money required to be raised as herein provided, to fix the rate of levy necessary to provide said amount of money, and to fix the rate necessary to provide the amount of money required to pay the interest and principal of the bonds of said district as the same shall become due; also, to fix the rate necessary to provide the amount of money required for any other purposes as in this act provided, and which are to be raised by the levy of assessments upon the real property of said district; and to cer- tify said respective rates to the county commissioners of each county embracing any portion of said district. The rate of levy necessary to raise the required amount of money on the assessed valuation of the property of said district shall be increased fifteen per cent, to cover delinquencies. For the purposes of said district it shall be the duty of the county commissioners of each county in which any irrigation district is located in whole or in part, at the time of making levy for county purposes, to make a levy, at the rates above specified, upon all real estate in said district within their respective counties. All taxes levied under this act are special taxes. [L. '05, p. 260, 20. 3460. District treasurer. Sec. 296. The Bounty treasure! 1 of the county in which is located the office of any irrigation dis- trict, shall be and is hereby constituted ex-officio district treasurer of said district, and said county treasurer shall be liable upon his official bond and to indictment and criminal prosecution for malfeasance, misfeasance or failure to perform any duty herein prescribed as county treasurer or district treasurer, as is provided by law in other cases as county treasurer. Said treasurer shall collect, receive and receipt for all moneys belonging to said dis- trict. It shall be the duty of the county treasurer of each county 104 in which any irrigation district is located in whole or in part, to collect and receipt for all taxes levied as herein provided in the same manner and at the same time, and on the same receipt as is required in the collection of taxes upon real estate for county purposes; Provided, however, That such county treasurer shall receive in payment of the general fund tax above mentioned for the year in \vhich said taxes were levied, warrants drawn against said general fund the same as so much lawful money of the United States, if such warrant does not exceed the amount of the general fund tax which the person tendering the same owns; Provided, further., That such county treasurer shall receive in payment of the district bond fund taxes above mentioned for the year in which said taxes were levied, interest coupons or bonds of said irrigation district maturing within the year the same as so much lawful money of the United States, if such interest coupons or bonds do not exceed the amount of district bonds funds tax which the person tendering the same owns. The county treasurer of each county comprising a portion only of the irrigation district, excepting the county treasurer of the county in which the office of said district is located, shall on the first Mondays of every month remit to the district treasurer afore- said all moneys, warrants, coupons, or, bonds theretofore collected or received by him on account of said district. Every county treasurer shall keep a bond fund account and a general fund ac- count. The bond fund account shall consist of all moneys received on account of interest and principal of bonds issued by said dis- trict, said accounts for interest and principal shall be kept sep- arate. The general fund shall consist of all other moneys or general fund warrants received by the collection of taxes or otherwise. The district treasurer aforesaid shall pay out of said bond fund, when due, the interest and principal of the bonds of said district, at the time and place specified in said bonds, and shall pay out of said general fund only upon the order of the district, signed by the president and countersigned by the secretary of said district as herein provided. The district treasurer, on the fifteenth day of each month, shall report to the secretary of the district the amount of money in his hands to the credit of the respective funds above provided ; the amount of warrants paid during the previous month, and the amount of registered warrants if there be any. All such district taxes collected and paid to the county treasurers as aforesaid, shall be received by said treasurers in their official capacity, and they shall be responsible for the safe-keeping, dis- bursement and payment thereof the same as for other moneys collected by them as such treasurers ; Provided, Said county treas- urer shall receive as his sole compensation for the collection of such taxes, such amount as the board of directors may allow, to 105 be not less than twenty-five (25) dollars, nor more than one hun- dred (100) dollars, which compensation shall be considered as a part of the regular salary of such county treasurer as provided by law. [L. '07, p. 490, 3; amending L. '05, p. 260, 21. [For treasurer using public money or dealing in warrants see sections 1820-1826.] 3461. Assessment Collection. Sec 297. The revenue laws of this state for the assessment, levying and collection of taxes on real estate for county purposes, except as herein modified, shall be applicable for the purposes of this act, including the enforcement of penalties and forfeiture for delinquent taxes. [L. '05, p. 262, 22. 3462. Construction Contract. Sec. 298. After adopting a plan for the construction of canals, reservoirs, and works, the board of directors shall give notice, by publication thereof, not less than twenty days in a newspaper published in each of the counties into which any such irrigation extends, provided a news- paper is published therein, and in such other newspapers as they may deem advisable, calling for bids for the construction of said work or any portion thereof ; if less than the whole work is adver- tised, then the portion so advertised must be particularly de- scribed in such notice ; said notice shall set forth that plans and specifications can be seen at the office of the board, and that the board will receive sealed proposals therefor, and that the contract will be let to the lowest responsible bidder, stating the time and place for opening the proposals, which at said time and place shall be opened in public, and as soon as convenient thereafter the board shall let said work, either in portions, or as a whole, to the lowest responsible bidder, or they may reject any or all bids and readvertise for proposals, or may proceed to construct the work under their own superintendence. Contracts for the pur- chase of material shall be awarded to the lowest responsible bid- der. The person or persons to whom a contract may be awarded shall enter into a bond, with good and sufficient sureties, to be approved by the board, payable to said district for its use, for not less than ten per cent, of the amount of the contract price, conditioned for the faithful performance of said contract. The work shall be done under the direction and to the satisfaction of the engineer in charge, and be approved by the board. [L. '05, p. 262, 23. 3463. Claim Audit Payment Financial report. Sec. 299. No claims shall be paid by the district treasurer until the same shall have been allowed by the board, and only upon warrants signed by the president, and countersigned by the secretary, which warrants shall state the date authorized by the board and for what purposes; and if the district treasurer has not sufficient 106 money on hand to pay such warrant when it is presented for pay- ment, he shall endorse thereon "Not paid for want of funds, this warrant draws interest from date at six per cent, per annum," and endorse thereon the date when so presented, over his signa- ture, and from the time of such presentation until paid such warrant shall draw interest at the rate of six per cent, per annum ; Provided, When there is more than the sum of one hundred dollars or more in the hands of the treasurer it shall be applied upon said warrant. All claims against the district shall be veri- fied the same as required in the case of claims filed against counties in this state, and the secretary of the district is hereby authorized and empowered to administer oaths to the parties verifying said claims, the same as the county clerk or notary public might do. The district treasurer shall keep a register in which he shall enter each warrant presented for payment, show- ing the date and amount of such warrant, to whom payable, the date of the presentation for payment,' the date of payment, and the amount paid in redemption thereof, and all warrants shall be paid in the order of their presentation for payment to the district treasurer. All warrants shall be drawn payable to the claimant or bearer, the same as county warrants. [L. '05. p. 262, 24. 3464. Expense of organization, how defrayed. Sec. 300. For the purpose of defraying the expenses of the organization of the district, and the care, operation, management, repair and im- provement of all canals, ditches, reservoirs and works, including salaries of officers and employes, the board may either fix rates of tolls and charges and collect the same of all persons using said canal and water for irrigation, or other purposes, and in addition thereto may provide, in whole or in part, for the payment of such expenditures by levy of assessments therefor, as heretofore pro- vided, or by both tolls and assessment; Provided, That in case the money raised by the sale of bonds issued be insufficient, and in case bonds be unavailable for the completion of the plans of works adopted, it shall be the duty of the board of directors to provide for the completion of said plans by levy of an assessment therefor in the same manner in which levy of assessments is made for the other purposes provided for in this act. [L. ? 05, p. 263, 25. 3465. Crossing streams, highways, railroads, state lands, etc. Sec. 301. The board of directors shall have the power to con- struct the said works across any stream of water, water course, street, avenue, highway, railway, canal, ditch, or flume which the route of said canal or canals may intersect or cross; and if such railroad company and said board, or the owners and con- trollers of said property, thing or franchise so to be crossed, can 107 uo.t agree upon the amount to be paid therefor, or the points or the manner of said crossings, the same shall be ascertained and determined in all respects as is provided in respect to the taking of land for public uses. The right of way is hereby given, dedi- cated, and set apart, to locate, construct and maintain said works or reservoirs, over, through, or upon any of the lands which are now, or may be the property of the state. [L. '05, p. 264, 26. 3466. Officers' salaries Not interested in contracts. Sec. 302. The board of directors shall each receive at the rate of two and one-half dollars per day while attending meetings, and their actual and necessary' expenses while engaged in official business. The salary of the secretary shall not exceed eight hundred dollars per annum. No director or any officer named in this act shall, in any manner, be interested, directly or indirectly, in any con- tract awarded or to be awarded by the board, or in the profits to be derived therefrom; nor shall receive any bonds, gratuity, or bribe, and for any violation of this provision, such officer shall be deemed guilty of a felony, and such conviction shall work a forfeiture of his office, and he shall be punished by a fine not ex- ceeding five hundred dollars, or by imprisonment in the peniten- tiary not exceeding five years nor less- than one year. [L. '05, p. 264, 28. 3467. Limit of indebtedness. Sec. 303. The board of di- rectors, or other officers of the district, shall have no power to incur any debt or liability, either by issuing bonds or otherwise, in excess of the express provisions of this act, and any debt or liability incurred in excess of such express provisions shall be and remain absolutely void. [L. '05, p. 264, 28. 3468. Insufficient supply Distribution. Sec. 304. In case the volume of water in any canal, reservoir or other works in any district shall not be sufficient to supply the continual wants of the entire district and susceptible of irrigation therefrom, then it shall be the duty of the board of directors to distribute all available water upon certain or alternate days to different locali- ties, as they may in their judgment think best for the interests of all parties concerned. [L. '05, p. 264, 29. 3469. Compensation for property taken. Sec. 305. Nothing herein contained shall be deemed to authorize any person or per- sons, to divert the waters of any river, creek, stream, canal, or. reservoir to the detriment of any person or persons having a prior right to the waters of such river, creek, stream, canal, or reser- voirs, unless previous compensation be ascertained and paid therefor, under the laws of this state authorizing the taking of private property for public use. [L. '05, p. 265, 30. 108 3470. Boundaries Change of Effect. Sec. 306. The bound- aries of any irrigation district now or hereafter organized under the provisions of this act, may be changed in the manner herein prescribed; but such change of the boundaries of the district shall not impair or affect its organization, or its rights in or to property, or any of its rights or privileges of whatsoever kind or nature, nor shall it affect, impair, or discharge any contract, obli- gation, lien, or charge for, or upon w^hich it was or might become liable or chargeable had such change of its boundaries not been made. [L. '05, p. 265, 31. 3471. Contiguous territory Annexation Petition. Sec. 307. The holder or holders of title, or evidence of title, representing a majority of the acreage of any body of land adjacent to or situate within the boundaries of any irrigation district, may file with the board of directors of said district a petition in writing, pray ing that such lands be included in such district. The petition shall describe the tracts, or body of land owned by the petitioners, but such description need not be more particular than is required when such lands are entered by the county assessor in the assess- ment book. Such petition shall be deemed to give the assent of the petitioners to the inclusion in said district of the lands de- scribed in the petition, and such petition must be acknowledged in the same manner that conveyances of land are required to be acknowledged. [L. '05, p. 265, 32. 3472. Contiguous territory Notice Sec. 308. The secretary of the board of directors shall cause notice of the filing of such petition to be given and published once each week for three suc- cessive weeks, in a newspaper published in the county where the office of said board is situate, which notice shall state the filing of such petition and the names of the petitioners, a description of the lands mentioned in said petition, and the prayer of said petitioners; giving notice to all persons interested, to appear at the office of said board at a time named in said notice, and show cause, in waiting, if any they have, why the petition should not be granted. The time specified in the notice at which it shall be required to show cause shall be the regular meeting of the board next after the expiration of the time for the publication of the notice. The petitioner, or petitioners, shall advance to the secretary sufficient money to pay the estimated cost of all proceedings under such petition before the secretary shall be required to give such notice. [L. '05, p. 266, 33. 3473. Contiguous territory Hearing. Sec. 309. The board of directors, at the time and place mentioned in said notice, or at such time or times to which the hearijig of said petition may adjourn, shall proceed to hear the petition, and all objections; 109 thereto, presented in writing by any person, showing cause as aforesaid, why said petition should not be granted. The failure of any person interested to show cause, in writing, as aforesaid, shall be deemed and taken as an assent on his part to the in- clusion of such lands in said district as prayed for in said peti- tion. [L. '05, p. 266, 34. 3474. Payment. Sec. 310. The board of directors, to whom such petition is presented, may require as a condition precedent to the granting of the same, that the petitioners shall severally pay to such district such respective sums, as nearly as the same can be estimated by the board, as said petitioners or their grant- ors would have been required to pay to such district as assess- ments for the payment of its pro rata share of all bonds and the interest thereon, which may have previously thereto been issued by said district had such lands been included in such district at the time the same was originally formed or when said bonds were so issued. [L. '05, p. 266, 35. r 3475. Boundaries Orders. Sec. 311. The board of directors if they deem it not for the best interests of the district to include therein the lands mentioned in the petition, shall by order reject the said petition, but if they deem it for the best interests of the district that said lands be included the board may order that the district be so changed as to include therein the lands mentioned in the said petition. The order shall describe the entire boun- daries of the district with the lands so included, if the district boundaries be changed thereby, and for that purpose the board may cause a survey to be made of such portion of such boundaries as may be deemed necessary, Provided, If within thirty days from the making of such order a majority of the qualified electors of the district protest in writing to said board against the inclusion of such lands in said district, said order shall be held for naught and such lands shall not be included therein. [L. '05, p. 266, 36, 3476. Order Record Effect. Sec. 312. Upon the allow- ance of such petition and in case no protest has been filed with the board within thirty days after the entry of said order as aforesaid, a certified copy of the order of the board of directors making such change, and a plat of such district, showing such change, if any, certified by the president and secretary, shall be filed for record in the office of the clerk and recorder of each county in which are situate any of the lands of the district, and the district shall remain an irrigation district, as fully to every intent and purpose as if the lands which are included in the district by the change of the boundaries as aforesaid, had been included therein at the organization of the district; and said district as so changed and all the lands therein shall be liable 110 for all existing obligations and indebtedness of the organized district. [L. '05, p. 267, 37. 3477. Records Evidence. Sec. 313. Upon the filing of the copies of the order and the plat, as in the last preceding section mentioned, the secretary shall record in the minutes of the board the petition aforesaid; and the said minutes, or a certified copy thereof, shall be admissible in evidence with the same effect as the petition. [L. '05, p. 267, 38. 3478. Legal representatives petitioners. Sec. 314. A guar- dian, executor or an administrator of an estate, who is appointed as such under the laws of this state, and who, as such guardian, executor or administrator, is entitled to the possession of the lands belonging to the estate which he represents, may on be- half of his ward or the estate which he represents, upon being thereunto authorized by the proper court, sign and acknowledge the petition in this act mentioned, and may show cause, as in this act mentioned, why the boundaries of the district should not be changed. [L. '05, p. 267, 39. 3479. Eedivision of district Election of Officers. Sec. 315. In case of the inclusion of any land within any district by pro- ceeding under this act the board of directors shall, at least thirty days prior to the next succeeding general election, make an order redividing such district into three divisions, as nearly equal in size as may be practicable, which shall be numbered first, second and third, and one director shall thereafter be elected by each division. For the purposes of election the board of directors shall establish a convenient number of election precincts in said dis- tricts, and define the boundaries thereof, which said precincts may be changed from time to time as the board may deem neces- sary. [L. '05, p. 268, 40. 3480. Exclusion of lands. Sec. 316. Any tract of land in- cluded within the boundaries of any such district, at or after its organization, under the provisions of this act, may be excluded therefrom, in the manner herein prescribed, but such exclusion of land from the district shall not impair or affect its organiza tion, or its rights in or to property, or any of its rights or privi- leges of whatever kind or nature ; nor shall such exclusion affect, impair or discharge any contract, obligation, lien or charge for or upon which it would or might become liable or chargeable, had such land not been excluded from the district. [L. '05, p. 268, 41. 3481. Petition for exclusion. Sec. 317. The owner or own- ers in fee of any lands constituting a portion of any irrigation district may file with the board of directors of the district, a petition praying that such lands may be excluded and taken from said district. The petition shall describe the lands which the Ill petitioners desire to have excluded, but the description of such lands need not be more particular than required when lands are entered in the assessment book by the county assessor. Such petition must be acknowledged in the same manner and form as is required in case of a conveyance of land. [L. '05, p. 268, 42, [For form of acknowledgment see section 691.] 3482. Same Notice. Sec. 318. The secretary of the board of directors shall cause a notice of the filing of such petition to be published for at least three weeks in some newspaper pub- lished in the county where the office of the board of directors is situated, and if any portion of said district lie within another county or counties, then said notice shall be so published in a newspaper published within each of said counties ; or if no news papers be published therein, then by posting such notice for the same time in at least three public places in said district, and in case of the posting of said notices, one of said notices must be. so posted on the lands proposed to be excluded. The notice shall state the filing of such petition, the names of the petitioners, description of the lands mentioned in said petition, and the prayer of said petitioners; and it shall notify all persons interested to appear at the office of said board at a time named in said no- tice, and show cause in writing, if any they have, why said peti- tion should not be granted. The time to be specified in the no- tice at w r hich they shall be required to show cause shall be the regular meeting of the board next after the expiration of the time for the publication of the notice. The petitioner or peti- tioners shall advance to the secretary sufficient money to pay the estimated cost of all proceedings under such petition before the secretary shall give such notice. [L. '05, p. 269, 43. 3483. Same Hearing. Sec. 319. The board of directors at the same time and place mentioned in the notice, or at the time or times to which the hearing of said petition may be adjourned, shall proceed to hear the petition and all objections thereto, pre- sented in writing by any persons, showing cause as aforesaid why the prayer of said petitioner should not be granted. The filing of such petition with such board as aforesaid, shall be deemed and taken as an assent by each and all of such petitioners to the exclusion from such district of the lands mentioned in the petition, or any part thereof. [L. '05, p. 269, 44. 3484. Same Orders. Sec. 320. The board of directors, if they deem it not for the best interest of the district that the lands mentioned, in the petition or some portion thereof, should be excluded from said district, shall order that said petition be de- nied ; but if they deem it for the best interest of the district that the lands mentioned, in the petition, or some portion thereof, be excluded from the district, and if there are no outstanding bonds 112 of the district, then the board may order the lands mentioned in the petition, or some defined portion thereof, to be excluded from the district. Provided, If within thirty days from the making of such order a majority of the qualified electors of the district protest in writing to said board against the exclusion of such lands from said district, said order shall be held for naught and such lands shall not be excluded therefrom. [L. '05, p. 269, 45. 3485. Order Record Effect. Sec. 321. Upon the allow- ance of such petition and in case no protest has been filed with the board within thirty days after the entry of said order as aforesaid, a certified copy of the order of the board of directors making such change and a plat of such district showing such change, certified by the president and secretary, shall be filed for record in the office of the clerk and recorder of each county in which are situate any of the lands of the district, and the district shall remain an irrigation district as fully to every intent and purpose as if the lands which are excluded by the change of the boundaries as aforesaid, had not been excluded therefrom. [L. '05, p. 270, 46. 3486. Division of districts. Sec. 322. At least thirty days before the next general election of such district the board of di- rectors thereof may make an order dividing said district into three divisions, as nearly equal in size as practicable, which shall be numbered first, second and third, and one director shall be elected for each division by the qualified electors of the whole district. For the purpose of election in such district the said board of directors must establish a convenient number of election precincts, and define the boundaries thereof, which said precincts may be changed from time to time, as the board of directors may deem necessary. [L. '05, p. 270, 47. 3487. Dissolution of district Election. Sec. 323 Whenever a majority of the resident freeholders, representing a majority of the number of acres of the irrigable land, in any irrigation district organized, or hereafter to be organized, under this act, shall petition the board of directors to call a special election, for the purpose of submitting to the qualified electors of said irriga- tion district a proposition to vote on the dissolution of said irri- gation district, setting forth in said petition, that all bills and claims of every nature whatsoever have been fully satisfied and paid, it shall be the duty of said directors, if they shall be satis- fied that all claims and bills have been fully satisfied, to call an election, setting forth the object of the said election, and to cause notice of said election to be published in some newspaper in each of the counties or county in which said district is located, for a period of thirty (30) days prior to said election, setting 113 forth the time and place for holding said election in each of the three voting precincts in said district. It shall also be the duty of the directors to prepare ballots to be used at said election on which shall be written or printed the words : "For dissolution Yes/' and "For dissolution No." [L. '05, p. 270, 48, 3488. Same Canvass Record. Sec. 324. The board of di- rectors shall name a day for canvassing the vote, and if it shall appear that a majority of said ballots contain the words, "For Dissolution Yes," then it shall be the duty of said board of di- rectors to declare said district to be disorganized, and shall cer- tify to the county clerk of the respective counties, in which the district is situated, stating the number of signers to said petition. That said election was called and set for the day of , month of year. That said election was held and that so many votes (stating the number) had been cast for, and that so many votes (stating the number) had been cast against said proposition, said certificate to bear the seal of the district, and the signatures of the president and secretary of said board of directors. And it shall be the duty of the said respective clerks to record all such certificates in the records of the respective counties. Should it appear that a majority of the votes cast at said election were "For Dissolution No," then the board of directors shall declare the proposition lost and shall cause the result and the vote to be made a part of the records of said irrigation district. [L. '05, p. 271, 49. 3489. Judicial examination and confirmation. Sec. 325. The board of directors of an irrigation district organized under the provisions of this act may commence special proceedings, in and by which the proceedings of said board and of said district pro- viding for and authorizing the issue and sale of the bonds of said district, whether said bonds or any of them have or have* not been sold, or disposed of may be judicially examined, ap- proved and confirmed. [L. '05, p. 271, 50. 3490. Same Petition. Sec. 326. Board of directors of the irrigation district shall file in the district court of the county in which the lands of the district, or some portion thereof, are sit- uated, a petition, praying, in effect, that the proceedings afore- said may be examined, approved and confirmed by the court. The petition stall state the facts showing the proceedings had for the issue and sale of said bonds, and shall state generally that the irrigation district was duly organized, and that the first board of directors was duly elected, but the petition need not state the facts showing such organization of the district, or the election of said first board of directors. [L. '05, p. 272, 51. 114 3491. Same Notice of hearing. Sec. 327. The court shall fix the time for the hearing of said petition and shall order the clerk of the court to give and publish a notice of the filing of said petition. The notice shall be given and published for three successive weeks in a newspaper published in the county where the office of the district is situated. The notice shall state the time and place fixed for the hearing of the petition and the prayer of the petitioners, and that any person interested in the organi- zation of said "district, or in the proceedings for the isssue or sale of said bonds, may, on or before the day fixed for the hearing of said petition, demur to or answer said petition. The petition may be referred to and described in said notice as the petition of the board of directors of irrigation district, (giving its name) praying that the proceedings for the issue and sale of said bonds of said district may be examined, approved and confirmed by the court. [L. '05, p. 272, 52. 3492. Same Answer Pleading. Sec. 328, Any person in- terested in said district, or in the issue or sale of said bonds, may demur to or answer said petition. The provisions of the code of civil procedure respecting the demurrer and answer to a verified complaint shall be applicable to a demurrer and answer to said petition. The person so demurring and answering said petition shall be the defendant to the special proceeding, and the board of directors shall be the plaintiff. Every material statement of the petition not specifically controverted by the answer shall, for the purpose of said special proceeding, be taken as true, and each person failing to answer the petition shall be deemed to admit as true all the material statement of the petition. The rules of pleading and practice relating to appeals and writs of error provided by the code of civil procedure which are not inconsistent with the provisions of this act are applicable to the special pro- ceedings herein provided for. [L. '05, p. 273, 53. 3493. Same Determination Costs. Sec. 329. Upon the hearing of such special proceeding the court shall find and de- termine whether the notice of the filing of the petition has been duly given and published for the time and in the manner in this act prescribed, and shall have power and jurisdiction to examine and determine the legality and validity of, and approve and con- firm, each and all of the proceedings for the organization of said district under the provisions of said act, from and including the petition for the organization of the district, and all other pro- ceedings which may affect the legality or validity of said bonds, and the order of the sale and the sale thereof. The court, in inquiring into the regularity, legality or correctness of said pro- ceedings, must disregard any error, irregularity or omission which does not affect the substantial rights of the parties to said special 115 proceedings; and the court may by decree approve and confirm such proceedings in part, and disapprove and declare illegal or invalid other or subsequent parts of the proceedings. The costs of the special proceedings may be allowed and apportioned be- tween the parties, in the discretion of the court. [L. -'05, p. 273, 54. 3494. Repeal Saving Clause. Sec. 330. That an act en- titled an act to provide for the organization and government of irrigation districts, etc., approved April 12th, 1901, and all acts and parts of acts amendatory thereof, be and the same are here- by repealed. Provided, Nothing herein contained shall invalidate or affect any act or proceeding done or pending thereunder; but all such pending proceedings may be continued and concluded under such repealed provisions, the same as if this statute had not been adopted, or may be continued or concluded under the provisions of this act; And, provided, -further, That nothing here- in contained shall impair the organization, rights, powers and privileges of any irrigation district organized under any act or provision so repealed. [L. '05, p. 273, 55. IX. OFFENSES. Section. Section. 3495. Cutting or breaking gate, 3497. Penalty for interfering bank, flume, etc. Pen- with adjusted headgates. alty. 3498. Jurisdiction of justice of 3496. Jurisdiction of justice of the peace. the peace. 3495. Cutting or breaking- gate, bank, flume, etc. Penalty. Seci 331. Any person or persons who shall knowingly and wil- fully cut, dig, break down or open any gate, bank, embankment or side of any ditch, canal, flume, feeder or reservoir in which such person or persons may be a joint owner, or the property of another, or in the lawful possession of another or others, and used for the purposes of irrigation, manufacturing, mining or domestic purposes, with intent maliciously to injure any person, association or corporation, or for his or her own gain, unlaw- fully, with intent of stealing, taking or causing to run or pour out of such ditch, canal, reservoir, feeder or flume, any water for his or her "own profit, benefit or advantage, to the injury of any other person, persons, association or corporation, lawfully in the use of such water or of such ditch, canal, reservoir, feeder or flume, he, she or they so offending shall be deemed guilty of a misdemeanor, and on conviction thereof shall be fined in any sum not less than five dollars nor more than three hundred dol- 116 lars, and may be imprisoned in the count}' jail not exceeding ninety days. [G. S., 1759; L. '81, p. 163, 1. [Penalty for damaging bridge or flume. Section 994.] 3496. Jurisdiction of justices of the peace. Sec. 332. Jus- tices of the peace shall have jurisdiction of all offenses under the provisions of this act, saving to any party defendant the right to be tried by a jury as in other criminal cases before such justices, now provided for by law; and. also the right to appeal in manner and form as by law, now, or hereafter to be provided for by law, in criminal cases before such justices. [G. S., 1761; L. '81, p. 163, 2. [For provisions governing appeals see section 3869.] 3497. Penalty for interfering with adjusted headgates. Sec. 333. Every person who shall wilfully and without authority open, close, change or interfere with any headgate of any ditch, or any water box or measuring device of any ditch for the receiving or delivery of water, after the headgate of the ditch has been adjusted by and is in the control of the water com- missioner, or after such water box or measuring device has been adopted by the ditch officer in charge, shall be deemed guilty of a misdemeanor and on conviction thereof shall be fined in a sum not more than $300.00, or imprisoned in the county jail not exceeding sixty days, or both such fine and imprisonment, in the discretion of the court. Any person who shall be found using water taken through any such headgate, water box or measuring device so unlawfully interfered with, shall prima facie be deemed guilty of a violation of this section. [L. '01, p. 196, 1; amending G. S., 1755; L. '79, p. 108, 44. 3498. Jurisdiction of justice of the peace. Sec. 334. Jus- tices of the peace shall have jurisdiction to hear, try and de- termine actions brought for violations of this act, subject to the right of appeal as provided for in cases of assault and battery. [L. '01, p. 197, 2. [For appeal in cases of assault and battery see section 3869.] [For bribery of water commissioner see section 1723.] [Penalty for failure to cover ditch, see section 3243.] [Penalty for polluting stream, see section 1817.] [Penalty for allowing water to waste, see section 3240.] [Unlawful to cut trees which conserve the snow. Section 2626.] 117 X. STATE CANALS AND RESERVOIRS AND THE CONTROL THEREOF. Section. 3499. Penitentiary commission- ers may locate and con- struct. 3500. State engineer shall sur- vey, lay out and locate. 3501. Rights and powers given hoard. 3502. Title shall vest in state. 3503. Contract for and lease water rights. 3504. Aiding in the construc- tion. 3505. Board of control of canal No. 1. 3506. Control turned over to land board. 3507. Use of water Lease of lands. 3508. Rights and powers of board of control. 3509. Establish annual charges for use of water. 3510. Title to canal in state. 3511. Board construct laterals. 3512. Certificates received in lieu of money for charges. 3513. State board of control have traveling expenses. 3514. Location of Mesa county state ditch. 3515. Property of the State. 3516. Board of penitentiary commissioners may is- sue and sell certificates. 3517. Construction of ditch. 3518. Right of way. 3519. Cash subscriptions, how used. 3520. Qonvicts returned to peni- tentiary, when. 3521. Contracts for transporta- tion. 3522. Superintendent of con- struction Salary. 3523. Deputy warden in charge of convicts. 3524. Manager of ditch Salary. 3525. Lease of water rights. 3526. State engineer locate canal .No. 3. 3527. Feeders for South Platte and Arkansas. 3528. Property of the state. 3529. Coal creek reservoir Rights to water. Section. 3530. Property of state De- livery of water. 3531. Shall not impair vested rights. 3532. Damaging reservoir a mis- demeanor. 3533. Reservoir Apishapa creek. 3534. Location. 3535. Board of construction. 3536. ' Property of state. 3537. Sale and lease of water. 3538. Moneys paid to state treasurer. 3539. Reservoir Hardscrabble creek. 3540. Plans and specifications. 3541. Board of construction. 3542. Property of state Dis- position of water. 3543. Acquired rights not im- paired. 3544. Maintenance and repair. 3545. Penalty for damaging res- ervoir. 3546. Reservoir Saguache creek. 3547. Board of construction. 3548. Property of state Dispo- sition of water. 3549. Acquired rights not im- paired. 3550. Penalty for damaging res- ervoir. 3551. Reservoir Monument creek. 3552. Property of state Dispo- sition of water. 3553. Acquired rights not im- paired. 3554. Penalty for damaging res- ervoir. 3555. Reservoir Chaffee county. 3556. Board of construction Powers of board. 3557. Property of state Man- agement Sale of water. 3558. Acquired rights not im- paired. 3559. Penalty for damaging res- ervoir. 3560. Control of Boss Lake res- ervoir. 3561. Land board -control ditches and reservoirs. 3562. County control of reser- voirs. 3499. Penitentiary commissioners may locate and construct. Sec. 335. That, for the purpose of reclaiming, by irrigation, state 118 and other lands, and for the purpose of furnishing work for the convicts confined in the state penitentiary, the board of commis- sioners of the state penitentiary is hereby authorized to locate, acquire and construct, in the name of and for the use of the state of Colorado, ditches, canals, reservoirs and feeders, for irrigating and domestic purposes, and for that purpose may use convict labor of persons confined, or that may be confined, as convicts in the state penitentiary at Canon City. [L. '89, p. 285, 1, 3500. State engineer shall survey, lay out and locate. Sec. 336. The state engineer, under the direction of the board, shall survey, lay out and locate a ditch or canal upon the most feasible route on either side of the Arkansas river, which said ditch or canal shall be of sufficient capacity to cover at least thirty thou- sand acres of good arable land between Canon City and Pueblo; Provided, That work shall only be commenced and performed upon one main ditch, canal, reservoir or feeder at a time; that a second shall not be commenced until the completion of the first. [L. -'89, p. 285, 2. 3501. Rights and powers given board. Sec. 337. The said board is hereby given all the rights and powers that an indi- vidual or corporation now has, or may hereafter have, under the laws of the state, or of the United States, to acquire the right of way over, upon and to any lands necessary for it to use or occupy in the construction and maintenance of said ditches, canals, reservoirs or feeders. [L. '89, p. 286, 3. * Only material sections of the original acts establishing ditches and res- ervoirs are printed. In many cases later appropriations have been made but in most instances the work has been abandoned. 3502. Title shall vest in state. Sec. 338. That the title to all ditches, canals, reservoirs or feeders, so constructed under this act, shall vest and remain in the state of Colorado, and the proceeds thereof shall be paid into the state treasury. [L. '89, p. 286, 4. 3503. Contract for and lease water rights. Sec. 339. That when any part of any ditch, canal, reservoir or feeder shall be constructed under this act, said board of penitentiary commis- sioners may contract for and may lease water rights, upon such terms and under such rules and regulations as may be adopted by said board and approved by the governor of the state, to such individuals or corporations as may desire to lease the same. [L. '89, p. 286, 5. [The act referred to' above includes sections 3499-3504.] [Is above section amended by sections 3561 and 3562?] 3504. Aiding in the construction. Sec. 340. That for the purpose of aiding in the construction of said ditches, canals, reservoirs and feeders, the said board is hereby authorized to 119 receive subscriptions uiid advancements of money from persons owning land along the line of said proposed ditches, canals, reservoirs and feeders, or persons desiring the construction of the same, and to issue receipts or certificates to such person or per- sons so advancing money for the amount thereof, which receipt or certificate shall draw interest at the rate of seven per cent, per annum, and both principal and interest shall be payable in water to be taken from said ditches, canals, reservoirs or feeders, under such rules and regulations as may be adopted by said board and the state engineer, and approved by the governor of the state. [L. '89, p. 286, 6. 3505. Board of control canal No. 1 Duties. Sec. 341. There is hereby created a board to be known as "The board of control of state canal No. 1 and reservoirs connected therewith." The said board shall be composed of the lieutenant governor, who shall be chairman, the state engineer and the warden of the penitentiary. The secretary of the state board of land commis- sioners shall be secretary of said board of controj. Said board is hereby charged with the duty of securing the early completion of state canal No. 1, and reservoirs connected therewith and of the operation and maintenance of the same as herein provided. [L. '93, p. 441, 1. [Sections 2-7 of the above act have performed their function and are there- fore not printed.] 3506. Board of land commissioners assume control. Sec. 342. Upon completion of said canal and its acceptance and ap- proval, as hereinbefore provided, the said board of control of state canal No. 1 and reservoirs connected therewith, shall turn over the said canal, together with all drawings, specifications, reports and records pertaining to said canal and the action of said board of control, to the state board of land commissioners ; whereupon the state board of land commissioners shall assume control of said canal and shall thereinafter control, operate and maintain the same subject to such provisions of law as may hereafter be made and established. [L. '93, p. 445, 8. [See also section 3561.] 3507. Use of water Lease of lands. Sec. 343. It shall be the duty of the state board of land commissioners to cause the waters carried in the state canal No. 1 and reservoirs connected 'therewith to be applied to the irrigation of the state lands and all other lands lying under said canal at the earliest convenient and practicable times, and as a means among others to effect such use of water, the board of land commissioners are author- ized to offer numerous portions of said lands for lease at such reasonable prices, and for such periods, not exceeding twenty 120 years, as will be conducive to the rapid settlement of such lands and the early use of such waters. [L. '93, p. 445, 9. 3508. Rights and powers of board of control. Sec. 344. The said board of control of state canal No. 1 and reservoirs con- nected therewith is here given all the rights and powers that an individual or corporation now has, or may hereafter have, under the laws of the state, or of the United States, to acquire the right of way over, upon and to any lands necessary for it to use or occupy in the construction and maintenance of such canal. [L. '93, p. 445, 10. 3509. Establish annual charges for carriage of water. Sec. 345. It shall be the duty of the state board of land commis- sioners to establish from time to time reasonable annual charges for the carriage of waters or sell perpetual rights of water if deemed by it more expedient. [L. '93, p. 446, 11. [Is the above section superseded by section 3562?] 3510. Title to canal in state. Sec. 346. The title to the said canal shall vest and remain with the state of Colorado, and any money received for the carriage of water therein shall be devoted to the maintenance and operation of such canal, and surplus over and above the cost of operation, and maintaining such canal, shall be converted into the state treasury and applied by the state treasurer to meeting the certificates of indebtedness herein provided for and interest thereon. [L. '93, p. 446, 12. 3511. Board construct laterals. Sec. 347. It shall be the duty of the said board of land commissioners to construct from time to time and as rapidly as may seem to such board advisable, lateral ditches and the necessary appurtenances thereto, for sup- plying the lands of the state lying under said canal with water for irrigation, and to see that all of such lands belonging to the state are brought under cultivation within a reasonable time. [L. '93, p. 446, 13. 3512. Certificates received in lieu of money for charges. Sec. 348. Any receipts or certificates heretofore issued in return for subscriptions and advancement of money by persons owning land along the line of state canal No. 1, and reservoirs connected therewith shall be received in lieu of money for the lawful and reasonable charges for the carriage of water in the said canal, and all of the certificates hereafter issued as in said canal or for perpetual water rights thereunder. [L. '93, p. 446, 14. 3513. State board of control have traveling expenses. Sec. 349. The members of the state board of control of state canal No. 1, and reservoirs connected therewith shall be entitled to their reasonable traveling expenses while performing the duties 121 herein laid upon them for which amounts the auditor shall draw warrants upon the state treasurer, when such amounts shall be duly certified to him by the secretar} T of the said board of control. [I/ '93, p. 446, 15. 3514. Location of Mesa county state ditch. Sec. 350. The state engineer under the direction of the board of penitentiary commissioners shall lay out, survey and locate a ditch or canal and laterals, reservoirs and feeders as may be necessary or ex- pedient so as to cover all the land practicable in the Grand valley in Mesa county. The headgate of the said ditch or canal shall be located in the Hogback canon, and the water for said canal shall be taken out of the Grand river. [L. '91, p. 335, 1. 3515. Property of the state. Sec. 351. The said ditch shall be known as the Mesa county state ditch, and during the con- struction of the same and when constructed shall be the property of the state of Colorado and all revenues derived therefrom shall be turned into the state treasury. [L. '91, p. 336, 2. 3516. Board of penitentiary commissioners may issue and sell certificates. Sec. 352. It shall be the duty of the board of pen- itentiary commissioners after said ditch is surveyed to issue and sell for cash certificates bearing seven per cent, interest from the date of the issuance thereof, the principal and interest of which shall be receivable by the state of Colorado as cash for water to be taken out of said canal under such rules and regulations as may be adopted by said board and state engineer and the gov- ernor of the stated [L. '91, p. 336, 3. 3517. Construction of ditch. Sec. 353. That after the sub- scription of fifty thousand dollars for said certificates has been received by said board and twenty per cent, of the same has been paid in, it shall be the duty of said board to commence the con- struction of said ditch, and in order to construct the same the said board of penitentiary commissioners shall have the power and authority and it shall be their duty to select from the able- bodied convicts confined in the state penitentiary "As many as are not otherwise employed" none of w r hom shall be under life sentence, and transport the said convicts to a general headquar- ters for the construction of said ditch where said board shall make suitable provision for the safe keeping of said convicts and said convicts, shall be used under v proper guard for the construc- tion of said ditch. [L. '91, p. 336, 4. 3518. Right of way. Sec. 354. The said board shall have the right and power to purchase, condemn or otherwise lawfully acquire a right of way for the said canal as provided in other cases and for said purpose may sue in the name of the people of the state of Colorado. [L. '91, p. 336, 5. 122 3519. Cash subscriptions, how used. Sec. 355. Said board shall have the power to use all cash subscriptions for the pur- pose of purchasing provisions, tools, teams, etc., for the con- struction of said ditch or may receive at cash valuation gro- ceries, vegetables, teams, tools, labor and other things necessary in constructing said ditch, on subscription for certificates as provided in section three of this act. [L. '91, p. 336, (>. [Section 3 referred to is section 3516.] 3520. Convicts returned to penitentiary, when. Sec. 356. Five days before the expiration of the term of confinement of any convict or convicts employed in the construction of said ditch shall expire, he or they shall be transported to the peni- tentiary at Canon City and others shall be taken to said work in his or their places. [L. '91, p. 337, 7. 3521. Contracts for transportation. Sec. 357. Said board of penitentiary commissioners shall have the power and authority to obtain or make a contract with any railroad company for rates for transporting prisoners to and from said work; or for transporting material, goods, wares or merchandise to be used in the construction of said ditch; and in advertising for bids for general penitentiary provisions and supplies, as now pro- vided by law, may stipulate that such proportion of said pro- visions and supplies as may be necessary for the sustenance of convicts employed in the construction of said Mesa county state ditch shall be delivered at the general headquarters of said ditch. [L. '91, p. 337, 8. 3522. Superintendent of construction Salary. Sec. 358. Said board may select one of their number who shall have imme- diate charge of the construction of said ditch and shall give his personal attention to the same and when so selected the said member of said board shall receive in addition to the present compensation two thousand, five hundred (2,500) dollars per year, payable out of the funds derived from the sale of certifi- cates as provided in section three of this act. [L. '91, p. 337, 9. 3523. Deputy warden in charge of convicts. Sec. 359. The warden of said penitentiary may appoint a deputy warden who shall have the same power and authority as he now possesses who shall be placed in charge of the convicts employed in the construction of said canal. [L. '91, p. 337, 10. 3524. Manager of ditch Salary. Sec. 360. After said canal is fully completed said convicts shall be returned to the penitentiary at Canon City and the governor shall appoint with the advice and consent of the senate a competent person who shall manage and superintend said ditch for and on behalf of the state and who shall receive fifteen hundred dollars per year salary to be paid out of the income from said ditch upon the order of board of penitentiary commissioners. [L. '91, p. 337. 11. 3525. Lease of water rights. Sec. 361. When said ditch or any of its reservoirs or feeders shall be constructed under this act said board of penitentiary commissioners may contract for the carriage and delivery of water, and may lease water rights upon such terms and under such rules and regulations as may be adopted by said board and approved by the governor of the state to such individuals or corporations as may desire to lease the same. [L. '91, p. 337, 12. 3526. State engineer locate canal number three. Sec. 362. The state engineer, under the direction of said board of con- trol, shall survey, locate and lay out a tunnel or canal which shall be known as "State Canal No. 3," commencing at the most feasible point on the Gunnison river below the mouth of the Cimarron river; thence in a westerly direction to the Un- compahgre river valley, thence with laterals running in various directions from said main canal to cover and redeem the great- est body of arable land in said counties of Montrose and Delta. [L. '01, p. 369, 2. [Canal No. 3 established by the act of 1901 was ceded to the United States by section 6928.] 3527. Feeders for South Platte and Arkansas. Sec. 363. That there is hereby appropriated out of any funds in the state treasury belonging to the internal improvement fund not other wise appropriated the sum of three thousand dollars, or so much thereof as is necessary to defray the necessary expenses of a preliminary survey and investigation of the sources of the Grand, Laramie and North Platte river systems, with reference to turning the unappropriated waters thereof eastward, and causing them to flow into and through the tributaries of the South Platte and Arkansas river . systems for the purpose of irrigation and other beneficial uses. [L. '89, p. 208, 1. 3528. Property of the state. Sec. 364. That the said ditches, canals and waterworks, and the waters when so di- verted, shall be the property of the state, and the waters so supplied shall be turned into the said South Platte and Arkan- sas rivers and their tributaries for the purpose of supplying deficiencies of water for appropriations heretofore made or hereafter to be made in the order of such appropriation by the several canals and reservoirs taken from said streams. The state engineer, or in his stead such person or persons as may be duly appointed for that purpose according' to law, shall deter- 124 mine, regulate and provide for the delivery of such waters to such ditches, canals and reservoirs, according to their several appropriations, decrees of court, capacities and necessities. [L. '89, p. 210, 4. [Survey in Boulder county. L. '89, p. 46.] [Survey near Walsenburg, L. '07, p. 134.] 3529. Coal Creek reservoir Eights to water. Sec. 365. There is hereby appropriated out of any money in the state treasury belonging to the internal improvement permanent fund, and any money which may hereafter be credited to said fund and not otherwise appropriated, the sum of twenty thou- sand (20,000) dollars, or as much thereof as may be necessary, as is hereinafter provided, for the construction of a reservoir at Coal creek, upon or adjacent to sections twenty, twenty-eight, or thirty-four, township four south, range sixty-five west, in the county of Arapahoe, to store the water of floods for the purpose of irrigation and other beneficial uses; Provided, That no part of said appropriation shall be used for the purchase of land, and that the said reservoir shall not be constructed except upon lands the title to which shall first be re- vested in the state; And, provided, further, That all citizens of the state shall have free and equal rights to the use and benefits of said reservoir when constructed, subject only to such reasonable rules and re- strictions as may be provided by law for the protection of the property. [L. '89, p. 215, 1. 3530. Property of state Delivery of water, Sec. 366. That the said reservoir and waterworks, and the waters when so collected and stored, shall be the property of the state; and the water so supplied shall be turned into Coal creek or canal, for the purpose of supplying water for appropriations heretofore made, or hereafter to be made, in the order of such appropria- tion, by the several canals and reservoirs taken from said stream. The state engineer, or in his stead such person or per- sons as may be duly appointed for that purpose according to law, shall determine, regulate and provide for the delivery of such water to such ditches, canals and reservoirs, according to their several appropriations, decrees of court, capacities and necessities. [L. '89, p. 217, 6. 3531. Shall not impair vested rights. Sec. 367. Nothing in this act shall be construed so as to impair any rights acquired, or that may be acquired, under or by virtue of the irrigation laws of the state of Colorado. [L. '89, p. 217, 7. 3532. Damaging reservoir a misdemeanor. Sec. 368. Any person interfering with or damaging said reservoir or any of its approaches or appurtenances, shall be deemed guilty of a 125 misdemeanor, and, upon conviction thereof, shall be fined not exceeding one thousand (1,000) dollars, or by imprisonment in the county jail not exceeding one year. [L. '89, p. 217, 8. 3533. Reservoir Apishapa creek. Sec. 369. That there is hereby 'appropriated out of any moneys in the state treasury belonging to the internal improvement permanent fund and any moneys which may be hereafter credited to said fund not other- wise appropriated the sum of fifteen thousand (15,000) dollars for the construction of a reservoir on the Apishapa creek in the county of Las Animas, for the storage of the surplus waters of said creek, to pay for surveying the same. [L. '91, p. 345, 1. 3534. Location. Sec. 370. Said reservoir shall be erected at some suitable place, to be determined by the state engineer, west of the Denver and Rio Grande railway, on or near the Apishapa creek. [L. '91, p. 346, 2. 3535. Board of construction. Sec. 371. The governor, sec- retary of state and state engineer are hereby constituted a board, under whose supervision and control said reservoir shall be located and constructed. Said board shall take charge of said reservoir, until otherwise provided by law, and make all proper regulations for the sale or disposal of the waters stored therein. [L. '91, p. 346, 3. 3536. Property of state. Sec. 372. Said reservoir shall be the property of the state, and all lands covered by said reser- voir, or required for the use of ditches shall be vested in the state of Colorado, prior to the letting of contracts for construc- tion of such reservoir or ditches. [L. '91, p. 346, 4. 3537. Sale and lease of waters. Sec. 373. Upon the com- pletion of said reservoir the board appointed in section 3 of this act shall take such steps as shall be necessary to sell or lease such waters as will in the judgment of said board bring in the mot revenue to the state. [L. '91, p. 346, 7. [Section 3 referred to is section 3535.] 3538. Moneys paid to state treasurer. Sec. 374. All mon- eys received from the sale or leasing of the water stored in said reservoir and from any water rights sold, either in connection with lands belonging to the state or otherwise, shall be paid to the state treasurer and by him credited to the internal im- provement permanent fund. [L. '91, p. 347, 8. 3539. Reservoir Hardscrabble creek. Sec. 375. There, is hereby appropriated out of any money in the state treasury belonging to the internal improvement permanent fund, and any money which may hereafter be credited to said fund and not otherwise appropriated the sum of ten thousand (10,000) 12G dollars, or as iniu-li thereof, as may be necessary, as hereinafter provided for the construction of a reservoir, or reservoirs, at the most convenient and suitable place, or places to be selected by the state engineer in township 21 range 69 west in the coun- ty of Ouster, to store the waters of the Hard-scrabble- creek, and its tributaries for the purpose of -irrigation, and other beneficial uses. [L. '91, p. 350, 1. 3540. Plans and specifications. Sec. 376. As soon as prac- ticable after the passage and approval of this act, the state engineer shall make the necessary arrangements for measuring the flow of water in said Hardscrabble creek with a view of con- structing a reservoir or reservoirs, of sufficient capacity to hold a part or a sufficient quantity of the waters of Hardscrabble creek, and its tributaries above said reservoir or reservoirs. Said state engineer, shall thereafter calculate and determine the required capacity of such reservoir, or reservoirs, to stow the waters flowing in said creek or so much thereof as may be necessary during the months of April, May, and June of each year, and prepare plans and specifications thereof. [L. '91, p. 350, 2. 3541. Board of construction. Sec. 377. The governor, state engineer, and attorney general, shall be, and hereby are constituted a board for the purpose of constructing said reser voir, or reservoirs, and taking charge of same until otherwise provided by law. [L. '91, p. 350, 3. 3542. Property of state Disposition of water. Sec. 378. That the said reservoir, or reservoirs, and waterworks and the waters when so collected, and stored shall be the property of the state, and the w r ater so supplied shall be turned into Hard scrabble creek or canals for the purpose of supplying water for appropriations heretofore made or hereafter to be made in the order of such appropriation by the several canals and reservoirs taken from said stream. The state engineer, or in his stead such person, or persons as may be duly appointed for that pur- pose according to law. shall determine, regulate and provide for the delivery of such w r ater to such ditches, canals and reservoirs according to their several appropriations, decrees of court, ca- pacities and necessities. [L. '91,' p. 351, 6. 3543. Acquired rights not impaired. Sec. 379. Nothing in this act shall be construed so as to impair any rights acquired, or that may be acquired under, or by virtue of the irrigation laws of the state of Colorado. [L. '91, p. 351, 7. 3544. Maintenance and repair. Sec. 380. When said reser- voir, or reservoirs, are completed, together with the approaches, tlie expanse of maintaining and keeping them in repair shall be by persons using and having a direct benefit from the use of the water therefrom and persons to whom a greater supply of water is received by the storage of water in the aforesaid reservoir or reservoirs. [L. '1)1, p. 351, 8. [Is above section superseded by section 3562?] 3545. Penalty for damaging reservoir. Sec. 381. Any per- son interfering with or damaging said reservoir or reservoirs, or parts, or appurtenances thereof, shall be deemed guilty of i\ misdemeanor and upon conviction thereof shall be fined not exceeding one thousand (1,000) dollars or by imprisonment in the county jail not exceeding one year. [L. '91, p. 351, 9. 3546. Reservoir Saguache creek. Sec. 382. There is here- by appropriated out of any money in the state treasury belong- ing to the internal improvement income fund, and any money which may hereafter be credited to said fund, and not otherwise appropriated, the sum of thirty thousand dollars or so much thereof as may be necessary, for the construction of one or more reservoirs, as Ls hereinafter provided, on or near the head-waters of Saguache creek, in Saguache county, Colorado, at some suit- able point or points within or near township forty-three (43) north of range two ('2} east X. M. P. M., or township forty-three (43) north of range three (3) east N. M. P. M. or both to be used for the conservative, storage and distribution of flood waters and waters flowing in said creek for the irrigation of lands which are or hereafter can be irrigated by water taken from said Saguache creek; Provided, That no part of said appro- priation shall be used for the purchase of land. [L. '1)1, p. :j:u, 1. 3547. Board of construction. Sec. 383, The governor, state engineer and chairman of the board of county commissioners of Saguache county shall be and hereby are constituted a board for the purpose of constructing said reservoir or reservoirs, and shall have pow r er if after the examination and measurements made by the state engineer, as hereinafter provided, they shall conclude that two reservoirs could be constructed with the money hereby appropriated, and that they would more efficiently than one subserve the objects hereby sought to be accomplished, to cause said two reservoirs to be constructed; Provided, That the total cost of said two reservoirs shall not exceed the sum of thirty thousand dollars hereby appropriated; And, provided, further, That if after proper examination and survey the board shall determine that it is not practicable and feasible to con- struct any reservoir at the place herein designated, or that the same cannot be properly constructed with the sum appropriated 128 by this act, together with such private donations and subscrip- tions as may be tendered to the board, then no portion of said appropriation shall be expended except so much as may have been necessary to defray the expenses of such examination and survey as may have been required by this act or ordered by the board. [L. '91, p. 355, 2. 3548. Property of state Disposition of waters. Sec. 384. The said reservoir or reservoirs when so constructed, and the waters therein when so collected and stored, shall be the prop- erty of the state, and until otherwise provided by law shall be under the charge, management and control of the said board of construction, and the said waters shall under such rules and regulations as the board may prescribe, be sold or leased, and all moneys received from such sale or lease, whether the same be sold along with state or school land or otherwise, shall be turned into the state treasurer and by him credited to the internal improvement income fund. [L. '91, p. 356, 6. 3549. Acquired rights not impaired. Sec. 385. Nothing in this act shall be construed so as to impair any rights acquired or that may be acquired under or by virtue of the laws of Colo- rado. [L. '91, p. 356, 7. 3550. Penalty for damaging reservoir. Sec. 386. Any per- son wilfully damaging any reservoir constructed under the pro visions of this act, or any of its approaches or appurtenances shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine not exceeding one thousand dollars or by imprisonment in the county jail for a term not exceeding one year or by both such fine and imprisonment. [L. '91, p. 356, 8. 3551. Eeservoir Monument creek. Sec. 387. There is here- by appropriated out of any money in the state treasury belong- ing to the internal improvement permanent fund, and any money which may hereafter be credited to said fund and not otherwise appropriated, the sum of thirty thousand (30,000) dollars, or as much thereof as may be necessary, as is herein- after provided, for the construction of a reservoir at Monument creek, upon or adjacent to sections fifteen and twenty-two, town- ship eleven, range sixty-seven west, in the county of El Paso, to store the water of floods for the purpose of irrigation and other beneficial uses; Provided, That no part of said appropria- tion shall be used for the purchase of land, and that the said reservoir shall not be constructed except upon lands the title to which shall first be vested in the state; And Provided,, fur- ther, That all citizens of the state shall have equal rights to the use and benefits of said reservoir when constructed, sub- 129 ject only to such reasonable rules and restrictions as may be provided by law. [L. '91, p. 352, 1. 3552. Property of state Disposition of water. Sec. 388. That the said reservoir and the waters when so collected and stored, shall be the property of the state; and the water so supplied shall be disposed of by sale to those desiring the same, the rates per cubic foot per second of time therefor to be fixed by the said board, the payments thereof to be made to said board payable annually in advance on or before May 1st, of each year. The income derived from the sale of such water to be paid into the state treasury and placed to the credit of the internal improvement permanent fund. [L. '91, p. 353, 6. 3553. Acquired rights not impaired. Sec. 389. Nothing in this act shall be construed so as to impair any rights acquired, 01 that may be acquired, under the virtue of the irrigation laws of the state of Colorado. [L. '91, p. 353, 7. 3554. Penalty for interfering with or damaging reservoir. Sec. 390. Any person interfering with or damaging said reser- voir or any of its approaches or appurtenances, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined not exceeding one thousand (1,000) dollars or by imprison- ment in the county jail not exceeding one year. [L. '91, p. 354, 8. 3555. Reservoir Chaffee county. Sec. 391. There is hereby appropriated out of any money in the state treasury belonging to the internal improvement income fund, and any money which may hereafter be credited to said fund, and not otherwise ap- propriated, the sum of fifteen thousand dollars, or so much thereof as may be necessary for the construction of one or more reservoirs, to be used for the conservation, storage and distribu- tion of flood waters (and waters flowing in said creeks) and for the purpose of supplying the deficiency existing at certain sea- sons of the year, in the supply of water flowing in the Cotton- wood creek, Chalk creek, and the South Arkansas river, Chaffee county, Colorado, for the irrigation of lands which are or here- after can be irrigated by waters taken from said creeks; Pro- vided, That no part of said appropriation shall be used for the purchase of land. [L. '91, p. 347, 1. 3556. Board of construction Powers of board. Sec. 392. The governor, state engineer and chairman, of the board of county commissioners shall be and hereby are constituted a board for the purpose of constructing said reservoir or reser- voirs, and shall have power if. after the examination and meas- urement made by the state engineer as hereinafter provided, 130 they shall conclude that two reservoirs could be constructed with the money hereby appropriated, and that they would more effi- ciently than one subserve the purposes hereby sought to be ac- complished, to cause said two reservoirs to be constructed; Provided, That the total cost of said two reservoirs shall not exceed the sum of fifteen thousand dollars hereby appropriated; Andy provided, further. That, if after proper examination and survey, the board shall determine that it is not practicable and feasible to construct any reservoir at the place herein designated, or that the same cannot be properly constructed with the sum appropriated by this act, together with such private donations and subscriptions as may be tendered to the board, or in the opinion of said board the expenditure of the sum herein appro- priated in the construction of said reservoir or reservoirs shall not be deemed expedient, and for the best interest of the whole people of the state of Colorado, then no portion of said appro- priation shall be expended except so much as may have been necessary to defray the expenses of such examination and sur- vey as may have ben required by this act or ordered by the board, [t. '91, p. 348, 3. 3557. Property of state Management Sale of water Sec. 393. The said reservoir or reservoirs, when so constructed, and the waters therein, when so collected and stored, shall be the property of the state, and all lands on which shall be constructed said reservoir or reservoirs or the works connected therewith, shall first be vested in the state of Colorado, and until otherwise 'provided by law shall be under the charge, management and con- trol of the said board of construction, and the said waters shall, under such rules and regulations as the board may prescribe, and shall be sold or leased by said board as said board may deem best, and all moneys received from the sale or lease of said water, whether the same shall be sold along with lands belonging to the state, or otherwise, shall be turned into the state treasurer, and by him credited to the internal improvement income fund. [L. >91, p. 349, 7. 3558. Acquired rights not impaired. Sec. 394. Nothing in this act shall be construed so as to impair any rights acquired, or that may be acquired, under or by virtue of the laws of Colo- rado. [L. *91, p. 349, 8. 3559. Penalty for damaging reservoir. Sec. 395. Any per- son wilfully damaging any reservoir constructed under the pro- visions of this act, or any of its approaches or appurtenances, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine not exceeding one thousand 131 dollars, or by imprisonment in the county jail for a term not exceeding one year, or by both such fine and imprisonment. [L. '91, p. 349, 9. 3560. Control of Boss lake reservoir. Sec. 396. The board of county commissioners of Chaffee county shall have charge and control of that certain state reservoir situated in said county and commonly known as the Boss lake reservoir and shall, without expense to the state of Colorado, maintain and keep said reservoir in good condition and provide for the storage of water as contemplated in the act providing for the construction of said reservoir and also for the distribution of said water under the direction of the water commissioner for the district in which said reservoir is situated, at such times as the scarcity of water in the stream known as the South Arkansas demands that the waters in said stream should be replenished for the purpose of irrigating the lands under ditches now. or hereafter to be con- structed; Provided, That said waiters shall be disturbed by the said water commissioner pro rata without reference to the dates of priorities of water rights and without expense to the con- sumers thereof; Provided, further. That the county of Chaffee assumes and shall be held responsible for any damages resulting from breakage of the dam or water discharges therefrom. [L. '97, p. 119, 1. 3561. Land board control ditches and reservoirs. Sec. 397. Until otherwise authorized by law, the board of land commis- sioners is hereby directed to regulate the distribution of water from state canals and reservoirs under such rules and regula- tions as said board shall deem to be for the best interests of the state. "And to charge and collect rental for the carriage of water therein." [L. '93, p. 404, 1. [Is this section superseded by section 3562?] [See sections 3506 and 3509.] 3562. County control of reservoirs. Sec. 398. The board of county commissioners of any county wherein is situated any state reservoir, shall have charge and control of such reservoir and shall, without expense to the state of Colorado, maintain and keep said reservoir in good condition and provide for the storage of water as contemplated in the act providing for the construction of said reservoir, and also for the distribution of said water under the direction of the water commissioner for the district in .which said reservoir is situated, at such times as the scarcity of water in the stream which such reservoir is in- tended to reinforce demands that the water in said stream should be replenished for the purpose of irrigating the lauds under ditches now or hereafter to be constructed; Prodded, That 132 said waters shall be distributed by said water commissioner pro rata without reference to priority of water rights and with- out expense to consumers thereof; And. provided,, also, That the counties in which said reservoirs are situated assume and shall be held responsible for any damages resulting from break- age of the dams or water discharges therefrom; And, provided, further, That the provisions of this act shall not apply to any state reservoir constructed primarily for the purpose of irrigat- ing state tands, but any such reservoir shall remain in the con- trol of the state board of land commissioners. [L. '99, p. 350, 1. LIENS. 4051. (Eev. Stats., 1908, p. 1027.) Liability of co-owners of unincorporated ditch. Sec. 39. All co-owners of unincorporated irrigating ditches shall pay for the necessary cleaning and repairing of such ditches in the proportion that their respective interests bear to the total expenses incurred in said cleaning and repairing; Provided, that any such co-owner may perform labor in cleaning and repairing such ditch, equiva- lent in value to his or their share of such expenses as aforesaid ; Provided, no co-owner shall be held liable for cleaning or repair- ing any ditch below the point from which he takes his portion of the water. [L. '93, p. 312, 1. 4052. (Rev. Stats., 1908, p. 1027.) Request to clean ditch- liability of co-owners. Sec. 40. Upon the failure of any one or more of several co-owners upon written request of the owners of one-thm (1-3) of the carrying capacity or board of directors, to assist in cleaning and repairing such ditch, the other co-owner or co-owners shall proceed to clean and repair the same, and shall keep an accurate account of the cost and expenses incurred; and shall, upon the completion of such work, deliver to each of such delinquent co-owners, his agent, lessee or legal representa- tive an itemized statement of such cost and expenses. [L. '93, p. 312, 2. 4053. (Rev. Stats., 1908, p. 1027.) Lien of co-owner against delinquent. Sec. 41. The co-owner or co-owners of any such ditch who shall clean and repair the same, as specified in section two (2) of this act, shall have a lien upon the interest in such ditch owned by such delinquent co-owner for his proportion of such cost and expenses. [L. '93, p. 312, 3. MEASUREMENT OF WATER, 7026. (Rev. Stats., 1908, p. 1631.) Water.* * * Every inch shall be considered equal to an inch square orifice under a five-inch pressure, and a five-inch pressure shall be from the top of the orifice of the box put into the banks of the ditch, to the surface of water; said boxes, or any slot or aperture through which such water may be measured, shall in all cases be six inches perpendicular, in- side measurement, except boxes delivering less than twelve inches, which may be square, with or without slides; all slides for the same shall move horizontally and not otherwise; and said box put into the banks of ditch shall have a descending grade from the water in ditch of not less than one-eighth of an inch to the foot. [G.-S., 3472; G. L., 2779; L. '74, p. 308, 1, amending R. S., p. 638, 3. 134 SUPREME COURT OF THE UNITED STATES. No. 3, Original. October Term, 1906. The State of Kansas, Complainant, vs. The State of Colorado et al., Defendants, The United States of America, Intervenor. In Equity. [May 13, 1907.] On May 20, 1901, pursuant to a resolution passed by the legislature of Kansas (Laws Kansas, 1901, chap. 425), and upon leave obtained, the State of Kansas filed its bill in equity in this court against the state of Colorado. To this bill the defendant demurred. After argument on the demurrer this court held that the case ought not to be disposed of on the mere averments of the bill, and, therefore, overruled the demurrer without prejudice to any question defendant might present. Leave was also given to answer. 185 U. S., 125. In delivering the opinion of the court the chief justice disclosed in the following words 'the general character of the controversy, and the conclusions arrived at: (P. 145.) "The gravamen of the bill is that the state of Colorado, act- ing directly herself as well as through private persons thereto licensed, is depriving and threatening to deprive the state of Kansas and its inhabitants of all the water heretofore accus- tomed to flow in the Arkansas river through its channel on the surface, and through a subterranean course across the state of Kansas; that this is threatened not only by the impounding and the use of the water at the river's source, but as it flows after reaching the river. Injury, it is averred, is being and would be, thereby inflicted on the state of Kansas as an individual owner, and on all the inhabitants of the state, and especially on the in- 135 habitants of that part of the state lying in the Arkansas valley. The injury is asserted to be threatened, and as being wrought, in respect of lands located on the banks of the river; lands lying on the line of the subterranean flow; and lands lying some dis- tance from the river, either above or below ground, but depend- ent on the river for a supply of water. And it is insisted that (Colorado in doing this is violating the fundamental principle that one must use his own so as not to destroy the legal rights of another. "The state of Kansas appeals to the rule of the common law that owners of lands on the banks of a river are entitled to the continual flow of the stream, and while she concedes that this rule has been modified in the western states so that flowing water may be appropriated to mining purposes and for the recla- mation of arid lands, and the doctrine of prior appropriation obtains, yet she says that that modification has not gone so far as to justify the destruction of the rights of other states and their inhabitants altogether; and that the acts of Congress of ISUf; and subsequently, while recognizing the prior appropria- tion of water as in contravention of the common law rule as to a continuous flow, have not attempted to recognize it as rightful to that extent. In other words, Kansas contends that Colorado can not absolutely destroy her rights, and seeks some mode of accommodation as between them, while she further insists that she occupies, for reasons given, the position of a prior appro- priator herself, if put to that contention as between her and Colorado. "Sitting, as it were, as an international as* well as a domestic tribunal, we apply federal law, state law, and international law, as the exigencies of the particular case may demand, and we are unwilling, in this case, to proceed on the mere technical admis- sions made by the demurrer. Nor do we regard it as necessary, whatever imperfections a close analysis of the pending bill may disclose, to compel its amendment at this stage of the litigation. We think proof should be made as to whether Colorado is herself actually threatening to wholly exhaust the flow of the Arkansas river in Kansas; whether what is described in the bill as the 'underflow' is a subterranean stream flowing in a known and de- fined channel, and not merely water percolating through the strata below; whether certain persons, firms and corporations in Colorado must be made parties hereto; what lands in Kansas are actually situated on the banks of the river, and what, either in Colorado or Kansas, are absolutely dependent on water there- from ; the extent of the water-shed or the drainage" area of the Arkansas river; the possibilities of the maintenance of a sus- 136 tained flow through the control of flood waters; in short, the cir- cumstances, a variation in which might induce the court to either grant, modify, or deny the relief sought or any part thereof." On August 17, 1903, Kansas filed an amended bill, naming as defendants Colorado and quite a number of corporations, who were charged to be engaged in depleting the flow of water in the Arkansas river. Colorado and several of the corporations answered. For reasons which will be apparent from the opinion the defenses of these corporations will not be considered apart from those of Colorado. On March 21, 1904, the United States, upon leave, filed its petition of intervention. The issue between these several parties having been perfected by replications, a commissioner was appointed to take evidence, and after that had been taken and abstracts prepared counsel for the respective parties were heard in argument, and upon the pleadings and tes- timony the case was submitted. In order that the issue between the three principal parties, Kansas, Colorado and the United States, may be fully disclosed although by so doing w r e prolong considerably this opinion we quote abstracts of the pleadings and statements thereof made by the respective counsel. Counsel for Kansas say: "The bill of complaint alleges that the state of Kansas was admitted into the Union on January 29, 1861, that the state of Colorado was admitted on August 1, 1876, and that the other defendants are corporations organized, chartered and doing busi- . ness in the state of Colorado; that the Arkansas river rises in the Rocky mountains, in the state of Colorado, and, flowing in a southeasterly direction for a distance of about 280 miles, crosses the boundary into the state of Kansas; that the river then flows in an easterly and southeasterly direction through the state of Kansas for a distance of about 300 miles, then through Okla- homa; Indian Territory and Arkansas, on its way to the sea. Through the state of Kansas the Arkansas valley is a level plain but a few feet above the normal level of the river, and is from two to twenty-five miles in width. Back to the foot hills on either side there are bottom lands which are saturated and sub-irrigated by the underflow from the river, and are fertile and productive almost beyond comparison. The Arkansas river is a meandered stream through the state of Kansas, and under the laws and departmental rules and regulations of the United States it is a navigable river through the state of Kansas, and was, in fact, navigable and navigated from the city of Wichita south to its mouth; and that the complainant is the owner of the bed of the stream between the meandered lines, in trust for 137 the people of the state; that the complainant is the owner of two tracts of land bordering upon the river, one at Hutchinson and one at Dodge City, upon which state institutions are main- tained one as a reform school and the other as a soldiers' home. That when the state of Kansas was admitted into the Union it became the owner for school purposes of sections 16 and 33 of each congressional township, of which the complainant still owns many thousand acres, much of which borders on the Ar- kansas river. That by act of Congress of March 3, 1863, the com- plainant became the owner of each odd-numbered section of land in the Arkansas valley, and has since conveyed the whole of this land for the purposes specified. That by the year 1868 the land in the Arkansas valley began to be taken by actual settlers, and by the year 1875 practically all the bottom lands in the east or lower half of the valley were entered and settled, and title obtained from the United States or the state of Kansas; and by the year 1882 the west or upper half of the valley was so entered and settled and like titles obtained. By the year 1873 a railroad was built through the entire length of the valley, and immedi- ately after their settlement these bottom lands were extensively cultivated, large crops of agricultural products were raised, towns and cities sprang up, population rapidly increased, and by the year 1883 practically all the bottom lands of the Arkansas valley w r ere in a state of successful and prosperous cultivation; that the waters of the Arkansas river furnished the foundation for this prosperity. These waters furnished a wholesome and ample supply for domestic purposes, for the watering of stock, for power for operating mills and factories, for saturating and sub-irrigating the bottom lands back to the uplands on either side of the river, so that crops thereon were not only bounteous but practically certain, and in the western portion of the valley these waters were appropriated and used for surface irrigation, to supplant the scanty rainfall in that region. That by reason of these uses of the w r aters of the Arkansas river, and the almost unvarying water level beneath these bottom lands being near the surface, the lands in the Arkansas valley in the state of Kansas wand this is important for our present consid- eration we find that section 1 reads that "the judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish." By this is granted the entire judicial power of the nation. Section 2,. which provides that "the judi- cial power shall extend to all cases in law and equity, arising under this Constitution, the laws of the United States," etc., is not a limitation nor an enumeration. It is a definite declara- tion, a provision that the judicial powers shall extend to that is, shall include the several matters particularly mentioned, leaving unrestricted the general grant of the entire judicial power. There may be, of course, limitations on that grant of power, but if there are any they must be expressed, for other- wise the general grant would vest in the courts all the judicial power which the new nation was capable of exercising. Con- struing this article in the early case of Chisholm vs. Georgia, 2 Dall., 419, the court held that the judicial power of the Supreme Court extended to a suit brought against a state by a citizen of another state. In announcing his opinion in the case, Mr. Jus- tice Wilson said (p. 453): "This question, important in itself, will depend on others more importrant still; and may, perhaps, be ultimately resolved into one no less radical than this Do the people of the United States form a nation?" In reference to this question attention may however prop- erly be called to Hans vs. Louisiana, 134 U. S., 1. The decision in Chisholm vs. Georgia led to the adoption of the eleventh amendment to the constitution, withdrawing from the judicial power of the United States every suit in law or equity commenced or prosecuted against one of the United States by citizens of another state or citizens or sub- jects of a foreign state. This amendment refers only to suits and actions by individuals, leaving undisfurbed the jurisdic- tion over suits or actions by one state against another. As said by Chief Justice Marshall in Cohens vs. Virginia, 6 Wheat. 264, 407: "The amendment, therefore, extended to suits com- menced or prosecuted by individuals, but not to those brought 145 by states." See, also, South Dakota vs. North Carolina, 192 U. S., 286. Speaking generally, it may be observed that the judicial power of a nation extends to all controversies justiciable in their nature, the parties to which or the property involved in which may be reached by judicial process, and when the judicial power of the United States was vested in the Supreme and other courts all the judicial power which the nation was capable of exercising was vested in those tribunals, and unless there be some limitations expressed in the Constitution it must be held to embrace all controversies of a justiciable nature arising within the territorial limits of the nation, no matter who may be the parties thereto. This general truth is not inconsistent with the decisions that no suit or action can be maintained against the nation in any of its courts without its consent, for they only recognize the obvious truth that a nation is not with- out its consent subject to the controlling action of any of its instrumentalities or agencies. The creature cannot rule the creator. Kawananakoa vs. Polyblank, Trustee, Etc., 205 IT. S. Nor is it inconsistent with the ruling in Wisconsin vs. Pelican Insurance Company, 127 IT. S. 265, that an original action can- not be maintained in this court by one state to enforce its penal laws against a citizen of another state. That was no de- nial of the jurisdiction of tho court, but a decision upon the merits of the claim of the state. These considerations lead to the propositions that when a legislative power is claimed for the national government the question is whether that power is one of those granted by the constitution, either in terms or by necessary implication, whereas in respect to judicial functions the question is whether there be any limitations expressed in the constitution on the general grant of national power. We may also notice a matter in respect thereto referred to at length in Missouri vs. Illinois & Chicago District, 180 U. S., 208, 220. The ninth article of the Articles of Confedera- tion provided that "the United States in Congress assembled shall also be the last resort on appeal in all disputes and dif- ferences now subsisting or that hereafter may arise between two or more states concerning boundary, jurisdiction or any other cause whatever." In the early drafts of the constitution pro- vision was made giving to the Supreme Court "jurisdiction of controversies between two or more states, except such as shall regard territory or jurisdiction," and also that the Sen- ate should have exclusive power to regulate the manner of de- ciding the disputes and controversies between the states re- 146 specting jurisdiction or territory. As finally adopted, the con- stitution omits all provisions for the Senate taking cognizance Of disputes between the states and leaves out the exception referred to in the jurisdiction granted to the Supreme Court. That carries with it a very direct recognition of the fact that to the Supreme Court is granted jurisdiction of all controver- sies between the states which are justiciable in" their nature. "All the states have transferred the decision of their contro- versies to this court; each had a right to demand of it the exer- cise of the power which they had made judicial by the Con- federation of 1781 and 1788; that we should do that which neither states nor congress could do, settle the controversies between them." Rhode Island vs. Massachusetts, 12 Pet., (5.17, 743. Under the same general grant of judicial power jurisdic- tion over suits brought by the United States has been sustained. United States vs. Texas, 143 U. S., 621; 162 IT. S., 1; United States vs. Michigan, 190 U. S., 379. The exemption of the United States to suit in one of its own courts without its consent has been repeatedly recognized. Kansas vs. United States, 204 U. S., 331, 341, and cases cited. Turning now to the controversy as here presented, it is whether Kansas has a right to the continuous flow of the waters of the Arkansas river, as that flow existed before any human interference therewith, or Colorado the right to appropriate the waters of that stream so as to prevent that continuous flow, or that the amount of the flow is subject to the superior au- thority and supervisory control of the United States. While several of the defendant corporations have answered, it is un- necessary to specially consider their defenses, for if the case against Colorado fails it fails also as against them. Colorado denies that it is any substantial manner diminishing the flow of the Arkansas river into Kansas. If that be true then it is in no way infringing upon the rights of Kansas. If it is dim- inishing that flow has it an absolute right to determine for itself the extent to which it will diminish it, even to the en- tire appropriation of the water? And if it has not that absolute right is the amount of appropriation that it is now making such an infringement upon the rights of Kansas as to call for ju- dicial interference? Is the question one solely between the states or is the matter subject to national legislative regula- tion, and, if the latter, to what extent has that regulation been carried? Clearly this controversy is one of a justiciable na- ture. The right to the flow of a stream was one recognized at 147 common law, for a trespass upon which a cause of action ex- isted. The primary question is. of course, of national control. For, if the nation has a right to regulate the flow of the waters, we must inquire what it lias done in the way of regulation. If it has done nothing the further question will then arise, what are the respective rights of the two states in the absence of national regulation? Congress has, by virtue of the grant to it of power to regulate commerce "among the several states," extensive control over the highways, natural or artificial, upon which such commerce may be carried. It may prevent or re- move obstructions in the natural waterways and preserve the navigability of those ways. In United States vs. Rio Grande Irrigation Company, 174 U. S., <>!)<). in which was considered the validity of the appropriation of the water of a stream by virtue of local legislation, so far as such appropriation affected the navigability of the stream, we said (p. 70.')): "Although this power of changing the* common law rule as to streams within its dominion undoubtedly belongs to each state, yet two limitations must be recognized: First, that in the absence of specific authority from Congress a state can not by its legislation destroy the right of the United States, as the owner of lands bordering on a stream, to the continued flow of its waters; so far, at least, as may be necessary for the beneficial uses of the government property. Second, that it is limited by the superior power of the general government to secure the un- interrupted navigability of all navigable streams within the limits of the United States. In other words, the jurisdiction of the general government over interstate commerce and its nat- ural highways vests in that government the right to take. all needed measures to preserve the navigability of the navigable watercourses of the country, even against any state action." It follows from this that if in the present case the national government was asserting, as against either Kansas or Colorado, that the appropriation for the purposes of irrigation of the wa- ters of the Arkansas was affecting the navigability of the stream, it would become our duty to determine the truth of the charge. But the government makes no such contention. On the con- trary, it distinctly asserts that the Arkansas river is not now and never was practically navigable beyond Fort Gibson in the Indian territory, and no when* claims that any appropriation of the waters by Kansas or Colorado affects its navigability.- It rests its petition of intervention upon its alleged duty of legislating for the reclamation of arid lands; alleges that in or near the Arkansas river, as it runs through Kansas and Colorado, 148 are large tracts of those lands; that the national government is itself the owner of many thousands of acres ; that it has the right to make such legislative provision as in its judgment is needful for the reclamation of all these arid lands and for that purpose to appropriate the accessible waters. In support of the main proposition it is stated in the brief of its counsel: "That the doctrine of riparian rights is inapplicable to con- ditions prevailing in the arid region ; that such doctrine, if appli- cable in said region, would prevent the sale, reclamation and cultivation of the public arid lands, and defeat the policy of the government in respect thereto ; that the doctrine which is appli- cable to conditions in said arid region, and which prevails therein, is that the waters of natural streams may be used to irrigate and cultivate arid lands, whether riparian or non-riparian, and that the priority of appropriation of such waters and the application of the same for beneficial purposes establishes a prior and su- perior right." In other words, the determination of the rights of the two states inter sese in regard to the flow of waters in the Arkansas river is subordinate to a superior right on the part of the national government to control the whole system of the reclamation of arid lands. That involves the question whether the reclamation of arid lands is one of the powers granted to the general govern- ment. As heretofore stated, the constant declaration of this court from the beginning is that this government is one of enume- rated powers. "The government, then, of the United States can claim no powers which are not granted to it by the constitution, and the powers actually granted must be such as are expressly given or given by necessary implication." (Story, J., in Martin vs. Hunter's Lessee, I Wheat., 304, 326.) "The government of the United States is one of delegated, limited and enumerated pow- ers." (United States vs. Harris, 106 U. S., 629, 635.) Turning to the enumeration of the powers granted to Con- gress by the eighth section of the first article of the constitution, it is enough to say that no one of them by any implication refers to the reclamation of arid lands. The last paragraph of the section which authorizes Congress to make all laws which shall be necessary and proper for carrying into execution the fore- going powers, and all other powers vested by this constitution in the government of the United States, or in any department or officer thereof, is not the delegation of a new and independent power, but simply provision for making effective the powers theretofore mentioned. The construction of that paragraph was precisely stated by Chief Justice Marshall in these words: "We 149 think the sound construction of the constitution must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that bod}' to perform the high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional" a statement which has become the settled rule of construction. From this and other declarations it is clear that the constitution is not to be construed technically and narrowly, as an indictment, or even as a grant presumably against the interest of the grantor, and passing only that which is clearly included within its language, but as creating a system of government whose provisions are 65870 w,lr,ffi designed to make effective and operative all the governmental powers granted. Yet while so construed it still is true that no independent and unmentioned pow r er passes to the national gov- ernment or can rightfully be exercised by the Congress. We must look beyond section 8 for congressional authority over arid lands, and it is said to be found in the second para- graph of section 3 of article four, reading: "The Congress shall have power to dispose of and make all needful rules and regu- lations respecting the territory or other property belonging to the United States; and nothing in this constitution shall be so construed as to prejudice any claims of the United States, or of any particular state." The full scope of this paragraph has never been definitely settled. Primarily, at least, it is a grant of power to the United States of control over its property. That is implied by the words ''territory or other property." It is true it has been referred to in some decisions as granting political and legislative control over the territories as distinguished from the states of the Union. It is unnecessary in the present case to consider whether the lan- guage justifies this construction. Certainly we have no disposi- tion to limit or qualify the expressions which have heretofore fallen from this court in respect thereto. But clearly it does not grant to Congress any legislative control over the states, and must, so far as they are concerned, be limited to authority over the property belonging to the United States within their limits. Appreciating the force of this, counsel for the government relies upon "the doctrine of sovereign 'and inherent power," adding "I am aware that in advancing this doctrine I seem to challenge great decisions of the court, and I speak with deference." His 150 argument runs substantially along this line : All legislative power must be vested in either the state or the national government; no legislative powers belong to a state government other than those which affect solely the internal affairs of that state; conse- quently all powers which are national in their scope must be found vested in the Congress of the United States. But the proposition that there are legislative powers affecting the nation as a whole which belong to, although not expressed in the grant of powers, is in direct conflict with the doctrine that this is a government of enumerated powers. That this is such a govern- ment clearly appears from the constitution, independently of the amendments, for otherwise there would be an instrument granting certain specified things made operative to grant other and dis- tinct things. This natural construction of the original body of the constitution is made absolutely certain by the tenth amend- ment. This amendment, which was seemingly adopted with pre- science of just such contention as the present, disclosed the wide- spread fear that the national government might, under the pres- sure of a supposed general welfare, attempt to exercise powers which had not been granted. With equal determination the framers intended that no such assumption should ever find justi- fication in the organic act, and that if in the future further powers seemed necessary they should be granted by the people in the manner they had provided for amending that act. It reads : "The powers not delegated to the United States by the consti- tution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." The argument of counsel ignores the principal factor in this article, to wit, "the people." Its principal purpose was not the distribution of power between the United States and the -states, but a reservation to the people of all powers not granted. The preamble of the constitution declares who framed it, "we the people of the United States," not the people of one state, but the people of all the states, and article 10 reserves to the people of all the states the powers not delegated to the United States. The powers affecting the internal affairs of the states not granted tp the United States by the con- stitution, nor prohibited by it to the states, are reserved to the states respectively, and all powers of a national character which are not delegated to the national government by the constitution are reserved to the people of the United States. The people who adopted the constitution knew that in the nature of things they could not foresee all the questions which might arise in the future, all the circumstances which might call for the exercise of further national powers than those granted to the United States, and after making provision for an amendment to the constitution by 151 which any needed additional powers would be granted, they re- served to themselves all powers not so delegated. This article 10 is not to be shorn of its meaning by any narrow or technical construction, but is to be considered fairly and liberally so as to give effect to its scope and meaning. As we said, construing an express limitation on the powers of Congress, in Fairbanks vs. United States, 181 U. S., 283, 288: "We are not here confronted with a question of the extent of the powers of Congress, but one of the limitations imposed by the constitution on its action, and it seems to us clear that the same rule and spirit of construction must also be recognized. If powers granted are to be taken as broadly granted and as carry- ing with them authority to pass those acts which may be reason- ably necessary to carry them into full execution ; in other words, if the constitution in its grant of powers is to be so construed that Congress shall be able to carry into full effect the powers granted, it is equally imperative that where prohibition or limitation is placed upon the power of Congress, that prohibition or limitation should be enforced in its spirit and to its entirety. It would be a strange rule of construction that language granting powers is to be liberally construed, and that language of restriction is to be narrowly and technically construed. Especially is this true when in respect to grants of powers there is as heretofore noticed the help found in the last clause of the eighth section, and no such helping clause in respect to prohibitions and limitations. The true spirit of constitutional interpretation in both directions is to give full, liberal construction to the language, aiming ever to show fidelity to the spirit and purpose." This very matter of the reclamation of arid lands illustrates this : At the time of the adoption of the constitution within the known and conceded limits of the United States there were no large tracts of arid land, and nothing which called for any fur- ther action than that which might be taken by the legislature of the state, in which any particular tract of such land was to be found, and the constitution, therefore, makes no provision for a national control of the arid regions or their reclamation. But, as our national territory has been enlarged, we have within our borders extensive tracts of arid lands which ought to be reclaimed, and it may well be that no power is adequate for their reclamation other than that of the national government. But if no such power has been granted, none can be exercised. It does not follow from this that the national government is entirely powerless in respect to this matter. These arid lands are largely within the territories, and over them by virtue of the second paragraph of section three of article four heretofore quoted, or by virtue of the power vested in the national govern- 152 ment to acquire territory by treaties ; Congress has full power of legislation, subject to no restrictions other than those expressly named in the constitution, and, therefore, it may legislate in re- spect to all arid lands within their limits. As to those lands within the limits of the states, at least of the western states, the national government is the most considerable owner and has power to dispose of and make all needful rules and regulations respecting its property. We do not mean that its legislation can override state laws in respect to the general subject of reclama- tion. While arid lands are to be found, mainly if not only in the western and newer states, yet the powers of the national govern- ment within the limits of those states are the same (no greater and no less) than those within the limits of the original thirteen, and it would be strange if, in the absence of a definite grant of power, the national government could enter the territory of the states along the Atlantic and legislate in respect to improving by irrigation or otherwise the lands within their borders. Nor do we understand that hitherto Congress has acted in disregard to this limitation. As said by Mr. Justice White, delivering the opinion of the court in Gutierres vs. Albuquerque Land Company, 188 U. S., 545, 554, after referring to previous legislation : "It may be observed that the purport of the previous acts is reflexively illustrated by the act of June 17, 1902, 32 Stat, 388. That act appropriated the receipts from the sale and disposal of public lands in certain states and territories to the construction of irrigation works for the reclamation of arid lands. The eighth section of the act is as follows : " 'Sec. 8. That nothing in this act shall be construed as affecting or intending to affect or to in any way interfere with the law r s of any state or territory relating to the control, appro- priation, use or distribution of water used in irrigation, or any vested right acquired thereunder, and the secretary of the in- terior, in carrying out the provisions of this act, shall proceed in conformity with such laws, and nothing herein shall in any way affect any right of any state or of the federal government or of any land owner, appropriator or user of water in, to or from any interstate stream or the waters thereof; Provided, That the right to the use of the water acquired under the provisions of this act shall be appurtenant to the land irrigated, and bene- ficial use shall be the basis, the measure and the limit of the right.' " But it is useless to pursue the inquiry further in this direc- tion. It is enough for the purposes of this case that each state has full jurisdiction over the lands within its borders, including the beds of streams and other waters. Martin vs. Waddell, 16 153 Pet., 367; Pollard vs. Hawaii. 3 How., 212; Goodtitle vs. Kibbe, 9 How., 471; Barney vs. Keokuk, 94 U. S., 324; St. Louis vs. Myers, 113 U. S., 566; Packer vs. Bird, 137 U. S., 661; Hardin vs. Jordan, 140 U. S., 371; Kaiikauna Water Power Company vs. Green Bay & Mississippi Canal Company, 142 U. S., 254 ; Shively vs. Bowlby, 152 U. S., 1; Water Power Company vs. Water Com- missioners, 168 U. S., 349 ; Kean vs. Calumet Canal Company, 190 U. S., 452. In Barney vs. Keoknk, supra, Mr. Justice Bradley said (page 338): "And since this court, in the case of The Genesee Chief, 12 Id., 443, has declared that the Great Lakes and other navigable waters of the country, above as well as below the flow of the tide, are, in the strictest sense, entitled to the denomination of navigable waters, and amenable to the admiralty jurisdiction, there seems to be no sound reasons for adhering to the old rule as to the proprietorship of the beds and shores of such waters. It properly belongs to the states by their inherent sovereignty, and the United States has wisely abstained from extending (if it could extend) its survey and grants beyond the limits of high water." In Hardin vs. Jordan, supra, the same justice, after stating that the title to the shore and lands under water is in the state, added (pp. 381, 382): "Such title being in the state, the lands are subject to state regulation and control, under the condition, however, of not in- terfering w T ith the regulations w r hich may be made by Congress with regard to public navigation and commerce. * * * Some- times large areas so reclaimed are occupied by cities, and are put to other public or privdte uses, state control and ownership therein being supreme, subject only to the paramount authority of Congress in making regulations of commerce, and in subject- ing the lands to the necessities and uses of commerce. * * This right of the states to regulate and control the shores of tide waters, and the land under them, is the same as that which is exercised by the crown in England. In this country the same rule has been extended to our great navigable lakes, which are treated as inland seas; and also, in some of the states, to navi- gable rivers, as the Mississippi, the Missouri, the Ohio, and, in Pennsylvania, to all the permanent rivers of the state; but it depends on the law of each state to what waters and to what ex- tent this prerogative of the state over the lands under water shall be exercised." It may determine for itself whether the common law rule in respect to riparian rights or that doctrine which obtains in the arid regions of the West of the appropriation of waters for 154 the purposes of irrigation shall control. Congress can not en- force either rule upon any state. It is undoubtedly true that the early settlers brought to this country the common law of England, and that that common law throws light on the mean- ing and scope of the constitution of the United States, and is also in many states expressly recognized as of controlling force in the absence of express statute. As said by Mr. Justice Gray in United States vs. Wong Kim Ark, 169 U. S., 649, 654: "In this, as in other respects, it must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the constitution. Minor vs. Happersett, 21 Wall., 162; Ex parte Wilson, 114 U. S., 417, 422; Boyd vs. United States, 116 U. S., 616, 624, 625; Smith vs! Alabama, 124 U. S., 465. The language of the constitution, as has been well said, could not be understood without reference to the common law. 1 Kent Com., 336; Bradley, J., in Moore vs. United States, 91 U. S., 270, 274." In the argument on the demurrer counsel for plaintiff en- deavored to show r that Congress had expressly imposed the com- mon law on all this territory prior to its formation into states. See, also, the opinion of the Supreme Court of Kansas in Clark vs. Allaman, 71 Kan., 206. But when the states of Kansas and Colorado were admitted into the Union they were admitted with the full powers of local sovereignty which belonged to other states, Pollard vs. Hagan, supra; Shively vs. Bowlby, supra; Hardin vs. Shedd, 190 U. S., 508, 519, and Colorado by its legis- lation has recognized the right of appropriating the flowing waters to the purposes of irrigation. Now the question arises between two states, one recognizing generally the common law rule of riparian rights and the other prescribing the doctrine of the public ownership of flowing water. Neither state can legis- late for or impose its own policy upon the other. A stream flows through the two and a controversy is presented as to the flow of that stream. It does not follow, however, that because Congress can not determine the rule which shall control between the two states or because neither state can enforce its own policy upon the other, that the controversy ceases to be one of a justiciable nature, or that there is no power which can take cognizance of the controversy and determine the relative rights of the two states. Indeed, the disagreement, coupled with its effect upon a stream passing through the two states, makes a matter for investigation and determination by this court. It has been said that there is no common law of the United States as distinguished from the common law of the several states. This contention was made in Western Union Telegraph Company vs. 155 Call Publishing Company, 181 IT. S., 02, in which it was as- serted that, as Congress having sole jurisdiction over interstate commerce had prescribed no. rates for interstate telegraph com- munications, there was no limit on the power of a telegraph company in respect thereto. After referring to the general con- tention, we said (pp. 101, 102): "Properly understood, no exceptions can be taken to declar- ations of this kind. There is no body of federal common law sep- arate and distinct from the common law existing in the several states in the sense that there is a body of statute law enacted by Congress separate and distinct from the body of statute law enacted by the several states. But it is an entirely different thing to hold that there is no common law in force generally throughout the United States, and that the countless multitude of interstate commercial transactions are subject to no rules and burdened by no restrictions other than those expressed in the statutes of Congress. * Can it be that the great multitude of inter- state commercial transactions are freed from the burdens cre- ated by the common law,, as so defined, and are subject to no rule except that to be found in the statutes of Congress? We are clearly of opinion that this can not be so, and that the principles of the common law are operative upon all interstate commercial transactions, except so far as they are modified by congres- sional enactment." What is the common law? Kent says (vol. 1, p. 471): "The common law includes those principles, usages and rules of action applicable to the government and security of persons and property, which do not rest for their authority upon any express and positive declaration of the will of the legis- lature." As it does not rest on any statute or other written declara- tion of the sovereign, there must, as to .each principle thereof, be a first statement. Those statements are found in the deci- sions of courts, and the first statement presents the principle as certainly as the last. Multiplication of declarations merely adds certainty. For, after all, the common law is but the accu- mulated expressions of the various judicial tribunals in their efforts to ascertain what is right and just between individuals in respect to private disputes. As Congress can not make com- pacts between the states, as it can not, in respect to certain mat- ters, by legislation compel their separate action, disputes be- tween them must be settled either by force or else by appeal to tribunals empowered to determine the right and wrong thereof. Force under our system of government is eliminated. The clear language of the constitution vests in this court the power to 156 settle those disputes. We have exercised that power in a variety of instances, determining in the several instances the justice of the dispute. Nor is our jurisdiction ousted, even if, because Kansas and Colorado are states sovereign and independent in local matters, the relations between them depend in any respect upon principles of international law. International law is no alien in this tribunal. In -The Paquete Habana, 175 U. S., 677, 700, Mr. Justice Gray declared: "International law is part of our law, and must be ascer- tained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination." And in delivering the opinion in the demurrer in this case Chief Justice Fuller said (p. 146) : "Sitting, as it were, as an international, as well as a do- mestic tribunal, we apply federal law T , state law, and interna- tional law, as the exigencies of the particular case may de- mand." One cardinal rule, underlying all the relations of the states to each other, is that of equality of right. Each state stands on the same level with all the rest. It can impose its own legisla- tion on no one of the others, and is bound to yield its ow r h view r s to none. Yet, whenever, as in the case of Missouri vs. Illinois, supra, the action of one state reaches through the agency of natural laws into the territory of another state, the question of the extent and the limitations of the rights of the two states be- comes a matter of justiciable dispute betw r een them, and this court is called upon to settle that dispute in such a way as will recognize the equal rights of both and at the same time establish justice between them. In other words, through these successive disputes and decisions this court is practically building up what may not improperly be called interstate common law. This very case presents a significant illustration. Before either Kansas or Colorado was settled the Arkansas river was a stream run- ning through the territory which now composes these tw r o states. Arid lands abound in Colorado. Reclamation is possible only by the application of water, and the extreme contention of Colo- rado is that it has a right to appropriate all the waters of this stream for the purposes of irrigating its soil and making more valuable its own territory. But the appropriation of the entire flow of the river would naturally tend to make the lands along the stream in Kansas less arable. It would be taking from the adjacent territory that which had been the customary natural means of preserving its arable character. On the other hand, the possible contention of Kansas, that the flowing water in the Arkansas must, in accordance with the extreme doctrine of the common law of England, be left to flow as it was wont to flow, no portion of it being appropriated in Colorado for the purposes of irrigation, would have the effect to perpetuate a desert con- dition in portions of Colorado beyond the power of reclamation. Surely here is a dispute of a justiciable nature which must and ought to be tried and determined. If the two states were abso- lutely independent nations it would be settled by treaty or by force. Neither of these ways being practicable, it must be set- tled by decision of this court. It will be perceived that Kansas asserts a pecuniary interest as the owner of certain tracts along the banks of the Arkansas and as the owner of the bed of the stream. We need not stop to consider what rights such private ownership of property might give. In deciding this case on demurrer we said, referring to the opinion in Missouri vs. Illinois (p. 142): "As will be perceived, the court there ruled that the mere fact that a state had no pecuniary interest in the controversy, would not defeat the original jurisdiction of this court, which might be invoked by the state as parens patriae, trustee, guar- dian or representative of all or a considerable portion of its citi- zens and that the threatened pollution of the waters of a river flowing between states, under the authority of one of them, thereby putting the health and comfort of the citizens of the other in jeopardy, presented a cause of action justiciable under the constitution. "In the case before us the state of Kansas, files her bill as representing and on behalf of her citizens, as well as in vindica- tion of her alleged rights as an individual owner, and seeks re- lief in respect of being deprived of the waters of the river ac- customed to flow through and across the state, and the conse- quent destruction of the property of herself and of her citizens and injury to their health and comfort. The action complained of is state action and not the action of state officers in abuse or excess of their powers." It is the state of Kansas which invokes the action of this court, charging that through the action of Colorado a large portion of its territory is threatened with disaster. In this re- spect it is in no manner evading the provisions of the eleventh amendment to the federal constitution. It is not acting directly and solely for the benefit of any individual citizen to protect his riparian rights. Beyond its property rights it has an interest as a state in this large tract of land bordering on the Arkansas river. Its prosperity affects the general welfare of the state. 158 The controversy arises, therefore, above a mere question of local private right and involves a matter of state interest, and must be considered from that standpoint. Georgia vs. Tennessee Cop- per Co., ante. This changes in some respects the scope of our inquiry. It is not limited to the simple matter of whether any portion of the waters of the Arkansas is withheld by Colorado. We must con- sider the effect of what has been done upon the conditions in the respective states and so adjust the dispute upon the basis of equality of rights as to secure as far as possible to Colorado the benefits of irrigation without depriving Kansas of the like bene- ficial effects of a flowing stream. A little reflection will make this clear. Suppose the controversy was between two individ- uals, upper and lower riparian owners on a little stream with rocky bank and rocky bottom. The question properly might be limited to the single one of the diminution of the flow by the up- per riparian proprietor. The lower riparian proprietor might insist that he was entitled to the full, undiminished and unpol- luted flow of the water of the stream as it had been wont to run. It would not be a defense on the part of the upper riparian proprietor that by the use to which he had appropriated the water he had benefited the lower proprietor, or that the latter had received in any other respects an equivalent. The question would be one of legal right, narrowed to place, amount of flow and freedom from pollution. We do not intimate that entirely different considerations obtain in a controversy between two states. Colorado could not be upheld in appropriating the entire flow of the Arkansas river, on the ground that it is willing to give, and does give, to Kansas something else which may be considered of equal value. That would be equivalent to this court's making a contract between two states, and that it is not authorized to do. But we are justified in looking at the question not narrowly and solely as to the amount of the flow in the channel of the Arkansas river, inquiring merely whether any portion thereof is appropriated by Colorado, but we may properly consider what, in case a portion of that flow is appropriated by Colorado, are the effects of such appropriation upon Kansas territory. For instance, if there be many thousands of acres in Colorado destitute of vegetation, which by the taking of water from the Arkansas river and in no other way can be made valuable as arable lands producing an abundance of vege- table growth, and this transformation of desert land has the effect, through percolation of water in the soil, or in any other way, of giving to Kansas territory, although not in the Arkansas valley, a benefit from water as great as that which would enure by keeping the flow of the Arkansas in its channel undiminished, then we may rightfully regard the usefulness to Colorado as justifying its action, although the locality of the benefit which the flow of the Arkansas through Kansas has territorially changed. Science may not as yet be able to give positive infor- mation as to the processes by which the distribution of water over certain territory has operation beyond the mere limits of the area in which the water is distributed, but they who have dwelt in the West know that there are constant changes in the productiveness of different portions of the territory, owing, ap- parently, to a wider and more constant distribution of water. To illustrate, the early settlers of Kansas territory found that farming was unsuccessful unless confined to its eastern 100 or 120 miles. West of that crops are almost always a failure, but now that region is the home of a large population, with crops as cer- tain as those elsewhere, and yet this change has not been brought about by irrigation. A common belief is that the original sod was largely impervious to water, that when the spring rains came the water, instead of sinking into the ground, filled the watercourses to overflowing and ran off to the Gulf of Mexico. There was no water in the soil to go up in vapor and come down in showers, and the constant heat of summer destroyed the crops ; but after the sod had once been turned the water from those rains largely sank into the ground, and then as the summer came on went up in vapor and came down in showers, and so by con- tinued watering prevented the burning up of the growing crops. We do not mean to say that science has demonstrated this to be the operating cause or that other theories are not propounded, but the fact is that, instead of stopping at a distance of 120 miles from the Missouri river, the area of cultivated and profitably cultivated land has extended 150 to 200 miles further west, and seems to be steadily moving towards the western boundary of the state. Now, if there is this change gradually moving westward from the Missouri river, is it altogether an unreasonable expecta- tion that as the arid lands of Colorado are irrigated and become from year to year covered with vegetation, there will move east- ward from Colorado an extension of the area of arable lands until, between the Missouri river and the mountains of Colorado, there shall be no land which is not as fully subject to cultivation as lands elsewhere in the country? Will not the productiveness of Kansas as a whole, its capacity to support increasing popula- tion, be increased by the use of the water in Colorado for irriga- tion? May we not consider some appropriation by Colorado of the waters of the Arkansas to the irrigation and reclamation of its arid lands as a reasonable exercise of its sovereignty and as not unreasonably trespassing upon any rights of Kansas. And here we must notice the local law of Kansas as declared by its Supreme Court, premising that the views expressed in this opinion are to be confined to a case in which the facts and the local law of the two states are as here disclosed. In Clark vs: Allaman, 71 Kan., 206, is an exhaustive discussion of the question, Mr. Justice Burch delivering the unanimous opinion of the court. In the syllabus, which by statute (Compiled Laws, Kansas, p. 317, 14) is prepared by the justice writing the opinion, and states the law of the case, are these paragraphs: "The use of the water of a running stream for irrigation, after its primary uses for quenching thirst and other domestic requirements have been subserved, is one of the common law rights of a riparian proprietor. "The use of water by a riparian proprietor for irrigation purposes must be reasonable under all the circumstances, and the right must be exercised with due regard to the equal right of every other riparian owner along the course of the stream. "A diminution of the flow of water over riparian land caused by its use for irrigation purposes by upper riparian proprietors occasions no injury .for which damages may be allowed unless it results in subtracting from the value of the land by inter- fering with the reasonable uses of the water which the land owner is able to enjoy. "In determining the quantity of land tributary to and lying along a stream which a single proprietor may irrigate the prin- ciple of equality of right with others should control, irrespective of the accidental matter of governmental subdivisions of the land." And in the opinion, on pages 242, 243, are quoted these ob- servations of Chief Justice Shaw, in the case of P]lliott vs\ Fitch- burg Railroad Company, 10 Cush., 191, 193, 196 : "The right to flowing water is now weH settled to be a right incident to property in the land ; it is a right publici juris, of such a character, that whilst it is common and equal to all, through whose land it runs, and no one can obstruct or divert it, yet, as one of the beneficial gifts of Providence, each proprietor has a right to a just and reasonable use of it, as it passes through his land; and so long as it is not wholly obstructed or diverted, or no larger appropriation of the water running through it is made than a just and reasonable use, it can not be said to be wrongful or injurious to a proprietor lower down. What is such a just and reasonable use may often be a difficult question, de- pending on various circumstances. To take a quantity of water from a large running stream for agriculture or manufacturing 161 purposes, would cause no sensible or practicable diminution of the benefit, to the prejudice of a lower proprietor; whereas, taking the same quantity from a small running brook passing through many farms, would be of great and manifest injury to those below, who need it for domestic supply or watering cattle; and therefore it would be an unreasonable use of the water, and an action would lie in the latter case and not in the former. It is, therefore, to a considerable extent a question of degree; still, the rule is the same, that each proprietor has a right to a reason able use of it, for his own benefit, for domestic use, and for manu facturing and agricultural purposes. * * * "Tli at a portion of the water of a stream may be used for the purpose of irrigating land, we think is well established as one of the rights of the proprietors of the soil along or through which it passes. Yet a proprietor can not, under color of that right, or for the actual purpose of irrigating his own land, wliollv abstract or divert the watercourse, or take such an unreasonable quantity of water, or make such unreasonable use of it, as to deprive other proprietors of the substantial benefits which they might derive from it, if not diverted or used unreasonably. * * * "This rule, that no riparian proprietor can wholly abstract or divert a watercourse, by which it would cease to be a running stream, or use it unreasonably in its passage, and thereby deprive a lower proprietor of a quality of his property, deemed in law incidental and beneficial, necessarily flows from the principle that the right to the reasonable and beneficial use of a running stream is common to all the riparian proprietors, and so each is bound so to use his common right, as not essentially to prevent or inter- fere with an equally beneficial enjoyment of the common right, by all the proprietors. * * * "The right to the use of flowing water is publici juris, and common to all the riparian proprietors ; it is not an absolute and exclusive right to all the water flowing past their land, so that any obstruction would give a cause of action ; but it is a right to the flow and enjoyment of the water, subject to a similar right in all the proprietors, to the reasonable enjoyment of the same gift of Providence. It is, therefore, only for an abstraction and deprivation of this common benefit, or for an unreasonable and unauthorized use of it, that an action will lie." As Kansas thus recognizes the right of appropriating the waters of a stream for the purposes of irrigation, subject to the condition of an equitable division between the riparian pro- prietors, she can not complain if the same rule is administered between herself and a sister state. And this is especially true when the waters are, except for domestic purposes, practically 162 useful only for purposes of irrigation. The Arkansas river, from its source to the eastern end of the Royal Gorge, is a mountain torrent, coming down between rocky, banks and over a rocky bed. Along this distance it is of comparatively little use for irrigation purposes. After it debouches from the Royal Gorge it enters a valley, in which it wanders from one side to the other through eastern Colorado, southwestern Kansas and into Okla- homa, with but a slight descent, and presenting but little oppor- tunities for the development of water power through falls or by dams. Its length in Kansas is about three hundred and fifty miles, and the descent is only 2,320 feet, or less than seven feet to a mile. There are substantially no falls, no narrow passage- ways in which dams can be readily constructed for the develop- ment of water power; and while there are some in eastern Colo- rado, yet they are of little elevation and mainly to assist in the storing of water for purposes of irrigation. So that, if the ex- treme rule of the common law were enforced, Oklahoma having the same right to insist that .there should be no diversion of the stream in Kansas for the purposes of irrigation that Kansas has in respect to Colorado, the result would be that the waters, except for the meagre amount required for domestic purposes, would flow through eastern Colorado and Kansas of comparatively little advantage to either state, and both would lose the great benefit which comes from the use of the water for irrigation. The drain- age area of the Arkansas river in Colorado is 26,000 square miles ; in Kansas, 20,000 square miles; and all this area, unless the stream can be used for purposes of irrigation, would be left to the slow development which comes from the cultivation of the soil. The testimony in this case is voluminous, amounting to 8,559 typewritten pages, with 122 exhibits, and it would be impossible to make a full statement of facts without an extravagant exten- sion of this opinion, which is already too long, and yet some facts must be stated to indicate the basis for the conclusion to which we have come. It must also be noted that, as might be expected in such a volume of testimony, coming as it does from three hun- dred and forty-seven witnesses, there is no little contradiction and a good deal of confusion, and this contradiction is to be found not merely in the testimony of witnesses, but also in the exhibits, among which are reports from the officials of the gov- ernment and the two states. We have endeavored to deduce from this volume those matters which seem most clearly proved, and must, as to other matters, be content to generalize and state that which seems to be the tendency of the evidence. Colorado is divided into five irrigating divisions, each of which is in charge of a division engineer. That which includes the drainage area of the Arkansas is District No. 2, divided into eleven districts. Under the laws of Colorado, irrigating ditches have been established in this district, and the amount of water which each may take from the river decreed. In addition, some reservoirs have been built for storing the surplus waters which come down in times of flood, and this adds largely to the amount available for irrigation. The storage capacity of six of these reservoirs is shown to be 8,527,673,652 cubic feet. The significance and value of these reservoirs can be appreciated when we remem- ber that the Arkansas, like many other streams, has its origin in the mountain districts of Colorado, and that by the melting of the snows almost every year there is a flood. The amount of water authorized to be taken by the ditches from the river is, as alleged in the bill, 4,200 cubic feet, and from its affluents and tributaries 4,300 feet. (Whenever this term is used in reference to the flow of water it means the number of cubic feet that pass in a second.) The average flow of the river as it comes out of the Royal Gorge at Canon City, is, as shown by official measurements for a series of years, 750 cubic feet. So that it appears that the irrigating ditches are authorized to take from the Arkansas river much more water than passes, in the channel into the valley. It is not clear what surplus water, if any, comes out of the tributaries. There are some twenty-five of them, the average flow from four of which into the Arkansas is 313 cubic feet. Aside from this surplus water some may be returned through overflow of the ditches or from seepage. What either of these amounts may be is not disclosed. Indeed, the extent to which seepage operates in adding to the flow of a stream, or in distributing water through lands adjacent to those upon which water is poured, is some- thing proof of which must necessarily be almost impossible. We may note the fact that a tract, bordering upon land which has been flooded, shows by its increasing vegetation that it has re- ceived in some way the benefit of water, and yet the amount of the water passing by seepage may never be definitely known. The underground movement of water will always be a problem of uncertainty. We know that when water is turned upon dry and barren soil the barrenness disappears, vegetation is developed, and that which was a desert becomes a garden. It is the magic of transformation ; the wilderness budding and blossoming as the rose. The writer of this opinion recalls a conversation with Bayard Taylor, the celebrated traveler, in which the latter stated that nothing had contributed so much to secure the steady con- trol of the French in Algiers as the fact that after taking pos- session of that territory they sank artesian wells on the borders of the desert, and thus reclaimed portions of it, for the Arabs 164 believed that people who could reclaim the desert were possessed of a power that could not be withstood. Further, adjacent barren ground is slowly but surely af- fected, and itself begins to increase its vegetation. We may not be entirely sure as to the methods by which this change is ac- complished, although the result is undoubted. It may be that water percolating under the surface has reached this adjacent ground. Perhaps the vegetation, which we know attracts mois- ture from the air, may increase the rainfall, and thus affect the adjacent barren regions. It appears that prior to 1885 there was comparatively little TVater taken from the Arkansas for irrigation purposes cer- tainly not enough to make any perceptible impression on the flow of the river but about that time certain corporations com- menced the work of irrigation on a large scale, with ditches some of which might well be called canals. Thus, in 1884 work was commenced on ditches capable of carrying off 450 cubic feet; in 1887 others capable of carrying off 1,481 cubic feet, and in 1890 still others carrying 1.705 cubic feet. Most of these were completed within two years after the commencement of the sev- eral works. By the year 1902, according to the report of the Census Bureau of the United States, there were 300,115 acres, in 4,557 farms, actually irrigated. The counties in Colorado from Canon City, eastward through which the Arkansas runs are Fremont, Pueblo, Otero, Bent and Prowers. The following tables prepared by the de- fendants from various census reports show the population, num- ber of acres cultivated and total value of farm products in these several counties for the years 1880, 1890 and 1900: Population. COUNTY. 1880. 1890. 1900. Fremont 4,735 9,156 15,636 Pueblo 7,617 31,491 34,448 Otero 4,192 11,522 Bent 1,654 1,313 3,049 Prowers 1,969 3,766 Making in the aggregate 14,006 48,121 68,421 165 Xo. of Acres Cultivated. COUNTY. 1880. 1890. ' 1900. Fremont 16,160 52,868 109,488 Pueblo , 51,894 100,697 478,821 Otero 61,347 244,594 Bent 30,921 30,058 118,485 Prowers 46,447 217,332 98,975 291,417 1,168,720 Value of Farm Products. COUNTY. 1880. 1890. 1900. Fremont $ 76,900 $237,980 $ 472,293 Pueblo 136,184 244,580 691,693 Otero 208.860 1,089,344 Bent 105,621 35,070 670,541 Prowers . 60,500 465,688 $318,705 $786,990 $3,389,559 These tables disclose a very marked development in the pop- ulation, area of land cultivated and amount of agricultural products. Whatever has been effective in bringing about this development is certainly entitled to recognition, and should not be wantonly or unnecessarily destroyed or interfered with. That this development is largely owing to irrigation is something of which from a consideration of the testimony there can be no reasonable doubt. It has been a prime factor in securing this result, and before at the instance of a sister state this effective cause of Colorado's development is destroyed or materially in- terfered with it should be clear that such sister state has not merely some technical right, but also a right with a correspond- ing benefit. It may be asked why cultivation in Colorado without irri- gation may not have the same effect that has attended the cul- tivation in Kansas w r est of where it was productive when the territory was first settled. It may possibly have such effect to some degree, but it must be remembered that the land in Colo- rado is many hundred feet in elevation above that in Kansas; that large portions of it are absolutely destitute of sod, and that cultivation would have comparatively little effect upon the re- tention of water. Add further the fact that the rainfall in Colo- rado is less than that in Kansas, and it would seem almost cer- tain that reliance upon mere cultivation of the soil would not have anything like the effect in Colorado that it has had in Kan- 166 sas, arid that the barrenness which characterized portions of the territory of Colorado would have continued for an indefinite time unless relieved by irrigation. Turning to Kansas, the counties along the Arkansas river, commencing from the Colorado line, are: Hamilton, Kearney, Finney, Gray, Ford, Edwards, Pawnee, Barton, Rice, Reno, Sedg- wick, Sumner, Cowley. Taking the same years as are given for the Colorado counties, the population is shown to be: Population. COUNTY. 1880. 1890. 1900. Hamilton 168 ' 2,027 1,426 Kearney 159 1,571 1,107 Finney 3,350 3.469 Gray 2,415 1,264 Ford 3,122 5,308 5,497 Edwards 2,409 3,600 3,682 Pawnee 5,396 5,204 5,084 Barton' 10,318 13,172 13,784 Rice 9,292 14,451 14,745 Reno 12,826 27,079 29,027 Sedgwick 18,753 43,626 44,037 Sumner 20,812 30,271 25,631 Cowley 21,538 34,478 30,156 104,793 186,552 178,909 We have been furnished by the United States census office with statistics of the corn and wheat crops of those counties from the years 1889 to 1904. Corn, wheat and hay are the lead- ing crops in Kansas. It would unnecessarily prolong this opin- ion to copy these tables in full, so we give 'the figures for 1890, 1895, 1900 and 1904: 167 Acreage and Production of Corn and Wheat in Kansas- Thirteen Counties. Year. 1890. 1895. County. Hamilton ( Acres. 80 Bushels. 400 8,720 48,460 2,465 12,464 20,580 2,720 25,662 329,520 989,720 744,535 267,680 887,474 Wheat. Acres. Bushels. 449 6,636 586 10,658 1,410 24,740 3,335 38,724 7,190 107,295 8,876 168,094 39,464 591,402 99,738 1,294,639 52,941 792,345 35,121 351,210 52,506 944,804 134,352 2,149,116 28,073 282,666 Kearney 872 Finney 2423 Gray . .... 493 Ford .... 1558 Edwards .... 2,058 Pawnee . . 544 Barton 3,666 Rice 27460 Reno ... 98972 Sedgwick .... 67,685 Sumner 19 120 Cowley . . 63 391 Totals 288,322 3,340,400 3,232 5,698 20,580 11,150 194,320 212,220 152,608 778,732 3,371,632 7,406,820 5,147,442 2,179,704 2,674,900 464,041 4,360 2,917 27,428 12,297 36,626 47,479 113,980 179,761 127,200 89,973 93,351 248,115 89,866 6,762,329 12,576 6,430 69,801 12,309 109,914 94,958 342,075 359,284 254,394 314,573 279,711 619,884 673,822 Hamilton Kearney Finney 404 914 2,058 1,115 12,145 21,222 19,076 103,831 153,256 205,745 190,646 181,642 133,745 Gray Ford Edwards Paw r nee Barton Rice Reno . . . Sedgwick Sumner . . Cowley Totals 1,025,799 22,159,038 1,073,353 3,149,731 168 Acreage and Production of Corn and Wheat in Kansas Thirteen Counties Continued. Year. CQunty. 1900. Hamilton . . . Kearney Finney Gray ....... Ford Edwards . . . Pawnee Barton Rice Reno Sedgwick . . . Sumner . . . . .Cowley Totals . Corn. Acres. Bushels. 266 3,990 538 11,298 1,213 18,195 2,001 30,015 11,215 145,795 25,032 325,416 16,257 146,313 32,649 261,192 71,151 355,755 199,150 1,991,500 153,635 2,766,430 102,057 2,143,197 121,398 2,792,154 \V Acres. 155 506 427 4,028 23,416 43.525 115.931 254,130 1 48,597 110,404 123.339 288,133 79,948 heat. Hushels. 1,550 5,492 4,234 59,605 444,904 I5JMUOO 1,969,801 5,081,352 .">. 120,537 2,097.276 2,589,811 5,761,260 1.439,064 736,562 10,991,250 1,192,534 23,271.286 1904. Hamilton ...... 120 Kearney 306 Finney 759 Gray 1,579 Ford 10,631 Edwards 23,396 Pawnee 13,272 Barton 26,984 Rice 59,851 Reno 138,899 Sedgwick ...... 132,374 Sumner . . 79,808 Cowley 109,708 1,800 6,120 7,590 25,264 170,096 584,900 331,800 728,568 1,556,126 4,028,071 3,441,724 1,995,200 2,962,116 271 536 7,012 17,268 72,917 130,313 162,970 262,673 160,853 207,002 151,635 294,489 68,477 2,297 (5.244 37.382 (19,590 3<;5,299 1,302,834 1.629,246 3,414.731 2,251,838 3.518.7^2 1,971,255 3,828,192 821. <>r>2 Totals 597,687 15,839,375 1,536,416 19,219,312 Comparing the tables of population it will be perceived that both the counties in Colorado and Kansas made a considerable increase in the years from 1880 to 1890 ; that while the Colorado counties continued their increase from 1890 to 1900, the Kansas counties lost. As the withdrawal of water in Colorado for irri- gating purposes became substantially effective about the year 1890, it might, if nothing else appeared, not unreasonably be concluded that the diminished flow of the river in Kansas, caused by the action of Colorado, had resulted in making the land more 169 unproductive, and hence induced settlers to leave the state. As against this it should be noted, as a matter of history, that in the years preceding 1890, Kansas passed through a period of de- pression, with crops largely a failure in different parts of the state. But, more than that, in 1889 Oklahoma, lying directly south of Kansas, was opened for settlement and immediately there was a large immigration into that territory, coming from all parts of the West, and especially from the state of Kansas, induced by glowing reports of its great possibilities. The popu- lation of Oklahoma, as shown by the United States census, was, in 1S1MI, 01,834, and in 1900, 348,331. Turning to the tables of the corn and wheat products, they do not disclose any marked injury which can be attributed to a diminution of the flow of the river. While there is a variance in the amount produced in the different counties from year to year, it is a variance no more than that which will be found in other parts of the Union, and although the population from 1890 to 11)00 in fact diminished, the amount of both the corn and wheat product largely increased. Not only was the total product increased, but the productiveness per acre seems to have been materially improved. Take the corn crop, and per acre, it was, in 1890, 12 bushels and a fraction; in 1895, 21 and a fraction; in 11)00, 15, and in 1904, 28 bushels. Of w^heat, the product per acre in 1890 was nearly 15 bushels; in 1895 it was only about 3 bushels. (For some reason, while that was a good year for corn, it seems to have been a bad year for wlieat.) But in 1900 the product per acre arose 1<> 11) bushels, and in 1904 it was 12 bushels. These are official figures taken from the United States census reports, and they tend strongly to show that the withdrawal of the water in Colorado for purposes of irrigation has not proved a source of serious detriment to the Kansas counties along the Arkansas river. It is not strange that the western counties show the least development, for being nearest the irrigation in Colorado, they would be most affected thereby. At one time there were some irrigating ditches in these western counties, which promised to be valuable in supplying water and thus increasing the productiveness of the lands in the vicinity of the stream, and it is true that those ditches have ceased to be of much value, the flow in them having largely diminished. It can not be denied in view of all the testimony (for that which we have quoted is but a sample of much more bearing upon the question), that the diminution of the flow 7 of water in the river by the irrigation of Colorado has worked some detriment to the southwestern part- of Kansas, and yet when we compare 170 the amount of this detriment with the great benefit which has obviously resulted to the counties in Colorado, it would seem that equality of right and equity between the two states forbids any interference with the present withdrawal of water in Colo- rado for purposes of irrigation. Many other matters have been presented and discussed. We have examined and fully considered them, but, as heretofore stated, we shall have to content ourselves with merely general observations respecting them. Evidence has been offered of an alleged underflow of the river as it passes through the state of Kansas, and it seems to be the contention on the part of Kansas that beneath the surface there is, as it were, a second river with the same course as that on the surface, but with a distinct and continuous flow as of a separate stream. We are of the opinion that the testimony does not warrant the finding of such second and subterranean stream. If the bed of a stream is not solid rock, but earth through which water will percolate, and, as alleged in plaintiff's bill, the "valley of the river in the state of Kansas is composed of sand covered with alluvial soil," undoubt- edly water will be found many feet below the surface, and the lighter the soil the more easily will it find its way downward and the more water will be discoverable by wells or other modes of exploring the subsurface. Undoubtedly, too, in many places there may be corresponding to the flow on the surface a current beneath the surface, but the presence of such subsurface water, even though in places of considerable amount and running in the same direction, is something very different from an inde- pendent subsurface river flowing continuously from the Colorado line through the state of Kansas. It is not properly denominated a second and subsurface stream. It is rather to be regarded as merely the accumulation of water which will always be found beneath the bed of any stream whose bottom is not solid rock. Naturally, the more abundant the flow of the surface stream and the wider its channel the more of this subsurface water there will be. If the entire volume of water passing down the surface was taken away the subsurface water would gradually disappear, and in that way the amount of the flow in the surface channel coming from Colorado into Kansas may affect the amount of water beneath the subsurface. As subsurface water, it percolates on either side as well as moves along the course of the river, and the more abundant the subsurface water the further it will reach in its percolations on either side as well as more distinct will be its movement down the course of the stream. The testimony, therefore, given in reference to this subsurface water, its amount and its flow bears only upon the question of the diminution of 171 the How from Colorado into Kansas caused by the appropriation in the former state of the waters for the purposes of irrigation. Equally untenable is the contention of Colorado that there are really two rivers, one commencing in the mountains of Colo- rado and terminating at or near the state line, and the other commencing at or near the place where the former ends, and from springs and branches starting a new stream to flow onward through Kansas and Oklahoma towards the Gulf of Mexico. From time immemorial the existence of a single continuous river has been recognized by geographers, explorers and travelers. That there is a great variance in the amount of water flowing down the channel at different seasons of the year and in different years is undoubted ; that at times the entire bed of the channel has been in places dry is evident from the testimony. In that way it may be called a broken river. But this is a fact common to all streams having their origin in a mountainous region, and whose volume is largely affected by the melting of the mountain snows. Thus, from one of complainant's exhibits furnished by the United States Geological Survey, the mean monthly flow at Canon City, at the mouth of the Roya"! Gorge, for the years 1890, 1895 and 1900 is as follows : ARKANSAS RIVER CANON CITY. MEAN MONTHLY DISCHARGE IN SECOND FEET. 1890. 1895. 1900. January 310 344 a345 February : 363 361 a353 March *. 320 471 0439 April 477 868 736 May 2,090 1,506 2,251 June 2,611 1,900 3,492 July 1,571 1,413 891 August '. 670 1,095 273 September 519 635 211 October ' 531 505 241 November 522 499 266 December 502 444 298 a Approximate. Doubtless the variance at different seasons of the year is more regular and more pronounced than in those streams whose sources are only slightly elevated and the rise and fall of whose waters is mainly owing to rains. Contrasting, for instance, the Hudson with the Missouri, illustrates this. When the June flood comes down the Missouri river it is a mighty torrent. One can stand 172 on the bluffs of Kansas Git}* and see an enormous volume of water, extending in width from two to five miles to the bluffs on the other side of the river, flowing onward with tremendous velocity and force, and yet at other times the entire flow of the Missouri river passes between two piers of the railroad bridge across the river at that point. No such difference between high and low water appears in the Hudson. In the days when navigation west of the Mississippi was largely by steamboats on the Missouri river, it was familiar experience for the flat-bottomed steamboats, drawing but little water, to be aground on sandbars and de- tained for hours in efforts to cross them. Gen. Doniphan com- manded an expedition which marched from Fort Leavenworth in 1846 up the Arkansas valley and into the territory of New Mexico. He did not enter the valley again until shortly before his death in 1887, and when asked what he recognized replied that there were one or two natural objects like Pawnee rock that appeared as they did when he marched up the valley; the river was the same, but all else was changed, and the valley instead of being destitute of human occupation was filled with farm houses and farms, villages and cities something that he had never expected would be seen in his day. Summing up our conclusions, we are of the opinion that the contention of Colorado of two streams can not be sustained; that the appropriation of the waters of the Arkansas by Colorado, for purposes of irrigation, has diminished the flow of water into the state of Kansas; that the result of that appropriation has been the reclamation of large areas in Colorado, transforming thousands of acres into fertile fields and rendering possible their occupation and cultivation when otherwise they would have continued barren and unoccupied; that while the influence of such diminution has been of perceptible injury to portions of the Arkansas valley in Kansas, particularly those portions closest to the Colorado line, yet to the great body of the valley it has worked little, if any, detriment, and regarding the interests of both states and the right of "each to receive benefit through irri- gation and in any other manner from the waters of this stream, we are not satisfied that Kansas has made out a case entitling it to a decree. At the same time it is obvious that if the depletion of the waters of the river by Colorado continues to increase there will come a time when Kansas may justly say that there is no longer an equitable division of benefits and may rightfully call for relief against the action of Colorado, its corporations and citizens in appropriating the waters of the Arkansas for irri- gation purposes. The decree which, therefore, will be entered will be one dis- missing the petition of the intervenor, without prejudice to the 173 rights of the United States to take such action as it shall deem necessary to preserve or improve the navigability of the Arkansas river. The decree will also dismiss the bill of the state of Kansas as against all the defendants, without prejudice to the right of the plaintiff to institute new proceedings whenever it shall appear that through a material increase in the depletion of the waters of the Arkansas by Colorado, its corporations or citizens, the sub- stantial interests of Kansas are being injured to the extent of destroying the equitable apportionment of benefits between the two states resulting from the flow of the river. Each party will pay its own costs. In closing, we may say that the parties to this litigation have approached the investigation of the questions in the most honor- able spirit, seeking to present fully the facts as they could be ascertained from Avitnesses and discussing the evidence and ques- tions of law with marked research and ability. Mr. Justice Moody took no part in the decision of this case. A true copy. Test: JAMES H. M'KENNEY, Clerk of the Supreme Court of the United States. 174 Supreme Court Decisions. Right of way. Right of purely private party to condemn right of way for ditch to convey water to his lands for domestic, mining or agricultural purposes guaranteed by constitution. Under 3167 Rev. Stats., p. 861, Sec. 7, Art 16 of the Constitution, "Plaintiffs were entitled to the right of way over defendants' lands for a ditch upon payment of just compensation therefor." [P. 73. Tripp et al. vs. Overocker et al., 7 Colo., 1883. Eight of way. Compensation for injury to settler on public domain. The proviso of the act of congress 1866, 9, reads as fallows: "'Provided, however, That whenever, after the passage of this act, any person or persons shall, in the construction of any ditch or canal, injure or damage the possession of any settler on the public domain, the party committing such injury or damage shall be liable to the party injured for such injury or damage.' [14 Pub. Stats., 253; Rev. Stats, of the U. S. (1873-1875), p. 432, 2339." P. 247. Tynon vs. Despain, 22 Colo., 1896. Eight of way. Congressional act construed as granting right of way Is recognition of pre-existing rights rather than establishment of a new one. In construing 9 of act of 1866 without the proviso in Broder vs. Water Company, 101 U. S. 274, Held, " 'This act was an unequivocal grant of the right of way, if it was no more.' * * * It was further held that this section of the act k was rather a voluntary recognition of a pre-existing right of possession, constituting a valid claim to its continued use, than the establishment of a new one/ " [P. 248. Tynon vs. Despain, 22 Colo., 1896. Eight of way. Condemnation proceedings Limitation as to necessity Law constitutional in this respect Financial suc- cess or practicability does not enter into question of necessity. "Parties having the constitutional authority may condemn lands, but it is certainly proper to limit this right to the extent of their needs. 175 "What is proper to consider in determining this ques- tion will vary according to the circumstances of each particular case. "Whether the enterprise is practicable or can be made a success financially does not enter into the ques- tion of necessity, nor is it pertinent to inquire what peti- tioner may be able to accomplish in the way of obtaining water which can be utilized through his proposed ditch and reservoir system." [P. 501. Gibson vs. Cann, 28 Colo., 1901. Right of way. Questions to be determined in condemnation proceedings for right of way. "The questions here to be determined are: First, the necessity for the construction of the ditch; second, the amount of damages." [P. 522. "Appellee brought an action to condemn a right of way for a ditch twenty feet long, two feet wide and one foot deep, extending from the lower end of a certain irri- gating ditch upon defendant's premises to plaintiff's premises." [P. 520. "The petition and proofs show the necessity for the use of water and that there was water being wasted which petitioner might obtain. "As to whether or not there is sufficient water for plaintiff's use. or as to whether or not the plan is a practicable or feasible one, is a matter which cannot be determined in a proceeding of this character. Gibson vs. Cann, 28 Colo., 499." [P. 522. Schneider vs. Schneider, 36 Colo., 1906. Eight of way. Condemnation proceedings Damages. "In condemnation proceedings all damages, present and prospective, that are the natural, necessary or rea- sonable incident of the improvement, must be assessed, not including such as may arise from negligent or un- skillful construction or use thereof." [P. 434. Denver City Irr. & Water Co. vs. Middaugh, 12 Colo., 1889. Right of way. Only private ditches subject to enlarge- ment under 3170-1-2 Kev. Stats, of 1908, p. 862, 6, 7 and 8; Mills' Ann. Stats., Sees. 2261-2-3, p. 1381. "The ditches subject to enlargement and joint use under the statute are strictly private ditches, and such as are used to convey water across the land of another to irrigate the adjoining land of the person or corpora- 176 tion owning the ditch. This is clearly manifest by the language of the act, and also from its object and pur- pose/' [P. 196. Durango Ditch Co. vs. Durango, 21 Colo., 1896. Right of way. Under 3172 Rev. Stats, 1908, p. 862, 8; Mills' Ann. Stats., 2263, p. 1382, right of way may be procured by condemnation or contract for ditch not taking water from natural stream. **# Q^ ie headgate of the feeder of the reservoir tapped the Larimer and Weld canal and not the stream itself ***. Such a right might be acquired by condemna- tion in a proper case (Mills' Ann. Stats., sec. 2263; Gen. Stats., sec. 1.718) and, of course, by contract." [P. 343. Water Supply & Storage Co. vs. Larimer & Weld Irrigation Co. et al., 24 Colo., 1897. Right of way. 3165 Rev. Stats. 1908, p. 861; Mills 1 Ann. Stats., sec. 2256, p. 1361; Rev. Stats., 363, construed as conferring right of way to convey water over lands of another for purposes of irrigation. "A right of way to convey water over lands of an- other for the purpose of irrigating one's land may be acquired under the statute (Rev. Stats., 363), and such right needs not a grant from the owner of the servient estate to support it." [P. 551. "It was enacted by the first legislative assembly that persons owning claims on the bank, margin or neighborhood of any stream, should have the right of way over adjacent lands for the purposes of irrigation (Laws 1861, p. 62), and this law is still in force." [P. 554. Yonkers vs. Mchols, 1 Colo., 1872. Right of way. Arises out of necessity. "It seems to me, therefore, the right springs out of the necessity, and existed before the statute was en- acted, and would still survive though the statute were re- pealed." [P. 570. Yonkers vs. Nichols, 1 Colo., 1872. Right of way. 3167 Rev. Stats. 1908, p. 861, 3; 2257 Mills' Ann. Stats., p. 1380, granting right of way through other lands modified by act of 1881 ; Rev. Stats., 3170-1-2, p. 8b2. Under 3167 Rev. Stats,, the "servient estate could be burdened with one ditch after another until its value would be greatly reduced or perhaps totally destroyed, with no authority in the proprietor to prevent the same." [P. 318. 177 Modified by act of 1881, providing that no land shall ho burdened with more than one ditch. Shortest route must be taken. Owner of ditch must permit others to enlarge. Downing vs. More, 12 Colo., 1888. Right of way. Owner of ditch must permit others to en- 3172 Rev. Stats., 1908, p. 862, 8; 2263 Mills' Ann. Stats., loS2 Unconstitutional is so far as it undertakes to limit or regulate compensation. "In providing that the owner of an existing ditch upon or across his own land, or the lands of another, shall not prohibit or prevent a third person from using and enlarging the same, the legislative intention evi- dently was to render more effective the equitable design expressed by the former section (1716). But in so far as the latter undertakes to limit or direct the compen- sation to be paid for the property, it is clearly uncon- siitutional and void. For there are other elements of 'taking or damage' which cannot be ignored in determin- ing the 'just compensation' required by our constitu- tion." [P. 73. "A careful examination of the entire act convinces us that if the objectionable phrases \vere stricken out, a good law would remain and the purpose of the legisla- 1 ui-o would still be accomplished." This act must be con- sidered in connection with other statutes as well as constitutional provisions upon the same subject. And when so construed, omitting the objectionable part, no trouble will be experienced in giving it full force and effect. "The right to enlarge and use the ditch of an- other already constructed will be enforced in the same manner, and under the same law, as the right to take or damage any other kind of private property." [P. 75. "By the terms of the constitution (art. II, 15), compensation for taking or damaging private property against owners consent must be ascertained by a jury or board of commissioners; this requirement is impera- ti^ve and the legislature is powerless to dispense with it." [P. 75. Tripp vs. Overocker, 7 Colo., 1883. Right of way. Under 3170-1-2 Rev. Stats. 1908, p. 862, (>, 7 and 8; 2261-2-3 Mills' Ann. Stats., p. 1381-2. Right to en- large applies to through ditches, not to ditches constructed by owner to water his lands exclusively. "It will be noticed that in the first section of the act, provision is made against burdening improved or ITS occupied lands with two or more ditches for the purpose of conveying water through such lands without the own- er's consent; while by section two the route to be se- lected through said lands is designated. The third sec- tion is to give effect to the first and second sections by prohibiting a party who has constructed a ditch to con- vey water through such lands to lands adjoining or be- yond from preventing other parties from enlarging and using such ditch when necessary for the purpose of con- veying water through the same lands." [P. 319. ".*** But a farmer in distributing water upon his own lands may have but little regard to the grade of his small ditches or laterals, and the statute does not contemplate the enlargement by others of such ditches, and thus not only burdening his lands with an easement, but compelling him against his Avill to accept such par- ties as co-tenants with him." [P. 320. Downing vs. More, 12 Colo., 1888. Right of way. Condemnation proceedings Waiver of ques- tion of necessity. "In an action to condemn a right of way for an irrigating ditch, by -demanding a jury to ascertain and assess the damages caused by the taking of the land, and by a voluntary trial of that question before a jury the respondent waived his right to have the preliminary question of the necessity of taking the land for the ditch submitted to a commission." [P. 243. Thompson vs. Ditch & Reservoir Co., 25 Colo., 1898. Eight of way. Verified statement under Mills' Ann. Stats., 2264-5, is not evidence of title, nor constructive notice of right of way. "The verified statement filed, hereinbefore referred to, which was introduced in evidence over the objection of defendants, it is admitted was not evidence of title to the right of way, and it can not be held to be constructive notice to the defendant of the existence of such ditch, for the 'reason that the statute under which the same was filed had been declared unconstitutional. Lamar Co. vs. Lamar Co., 26 Colo., 370; Great Plains Co. vs. Lamar Co., 31 Colo., 96." [P. 59. Blake vs. Boye, 38 Colo., 1906. Eight of way. Right of way acquired under Rev. Stats. 1868, chap. 18, 48, p. 130, merely an easement Not a fee simple. 179 Under condemnation proceedings for right of way for canal, "We are of the opinion that merely a right of way or easement was acquired." [P. 494. Smith Canal or D. Co. vs. Colo. Ice & Stor. Co., 34 Colo., 1905. Right of way. Eight of way becomes vested only upon com- pletion of work in compliance with local customs. Under 9, act of congress 1866, "It (right of way) becomes vested only upon a compliance on the part of the canal owner with the local laws, customs, etc., and ownership is acquired as the work progresses, and prior- ity to the water, as well as the right of way, becomes vested only upon the completion of the work of con- struction, and the application of water to a beneficial use." [P. 314. Jarvis vs. State Bank, 22 Colo., 1896. Right of Way. Condemnation proceedings Eight of pri- vate party to condemn artificial channel for natural stream. "The Constitution and statutes confer upon private individuals power of eminent domain for the right of way for irrigation ditches, but neither the Constitution nor any statute authorizes a private individual to main- tain a condemnation suit for the benefit of himself and others similarly situated, and as trustee of the public to take lands belonging to still other persons for an arti- ficial channel of a natural stream where the natural channel has been obstructed so as to prevent water from flowing down to the ditch of such private individual." [P. 100. Ortiz et al. vs. Hansen, 35 Colorado, 1905. Appropriation. Constitution obliterated largely common law doctrine of riparian rights. * The constitution has, to a large extent, obliterated the common law doctrine of riparian rights and substituted in lieu thereof the doctrine of appro- priations." [P. 149. Oppenlander vs. Left Hand Ditch Co., 18 Colo., 1892. Appropriation. Doctrine of riparian rights not applicable to Colorado. "We conclude, then, that the common law doctrine giving the riparian owner a, right to the flow of water in its natural channel upon and over his lands, even though he makes no beneficial use thereof, is unapplica- 180 ble to Colorado. Imperative necessity, unknown to the countries, which gave it birth, compels the recognition of another doctrine in conflict herewith." [P. 447. Coffin et al. vs. Left Hand Ditch Co., 6 Colo., 1882. Appropriation. Existence of doctrine of appropriation. * * * W e think the latter doctrine has existed \ from the date of the earliest appropriations of water within the boundaries of the state." [P. 446. Coffin et al. vs. Left Hand Ditch Co., 6 Colo., 1882. Appropriation. Act of 1861, p. 35, construed as adopting common law to extent it was applicable to our conditions. "The adoption of the common law by the territorial legislature of 1861 was limited to the extent that it was applicable to our conditions. The law of necessity ren- dered the common law doctrine of riparian rights wholly inapplicable in this jurisdiction, and as has frequently been stated, required its abrogation; so that, notwith- standing the declaration of the statute, it has never been recognized as controlling in the matter of water rights." [P. 302. Crippen vs. White, 28 Colo., 1901. Appropriation. Eight of diversion and use guaranteed under 5, Art. XVI of the constitution. "Our constitution dedicates all unappropriated water in the natural streams of the state 'to the use of the people,' the ownership thereof being vested in 'the public.' The same instrument guarantees in the strong- est terms the right of diversion and appropriation for beneficial uses." [P. 587. Wheeler vs. Northern Colo. I. Co., 10 Colo., 1887. Appropriation. Priorities only from natural streams recog- nized by constitution. "The constitution recognizes priorities only among those taking water from a natural stream." [P. 120. F. H. L. C. & K. Co. vs. Southworth, 13 Colo., 1889. Priority under 3177 Rev. Stats., p. 863, 13 ; M. A. S., 2269, p. 1384. "Canon de Agua is not a running stream, but w T ater comes entirely from rainfall in the surrounding hills. By use of the water so collected, appellee could irrigate a large portion of his land." [P. 305. "We think appropriation was a valid one under 2209 of Mills' Ann. Stats." [P. 306. Denver, Texas & Ft. Worth R. R. Co. vs. Dotson, 20 Colo., 1894. 181 Appropriation. First appropriates has prior right to extent of his appropriation. "That the first appropriator of the water of a natural stream has a prior right to such water, to the extent of his appropriation, is a doctrine that we must hold appli- cable, in all cases, respecting the diversion of water for the purpose of irrigation." [P. 103. Schilling et al. vs. Rominger, 4 Colo., 1878. Appropriation. What is an appropriation? "Appropriation is the intent to take, accompanied by some open, physical demonstration of the intent, and for some valuable use." [P. 616. Larimer Co. Res. Co. vs. People, 8 Colo., 1885. Appropriation. What constitutes a legal appropriation. "To constitute a legal appropriation, the water must be applied within a reasonable time to some beneficial use ; that is, the diversion ripens into a valid appropria- tion only when water is utilized by the consumer." [P. 531. Platte Water Co. vs. Northern Colo. I. Co., 12 Colo., 1889. Appropriation. What constitutes a reasonable time. "What shall constitute such reasonable time is a question of fact depending upon the circumstances con- nected with each particular case." [P. 154. Sieber vs. Frink, 7 Colo., 1883. Appropriation. Application to beneficial use within a rea- sonable time. "One of the essential elements of a valid appropria- tion of water is the application thereof to some useful industry. To acquire a right to water from the date of the diversion thereof, one must within a reasonable time employ the same in the business for which the appropria- . tion is made. What shall constitute such reasonable time is a question of fact depending upon the circumstances connected with each particular case." [P. 154. Sieber et al. vs. Frink et al.. 7 Colo., 1883. Appropriation. True test of. "The true test of appropriation of water is the suc- cessful application thereof to the beneficial use designed ; and the method of diverting or carrying the same, or making such application, is immaterial." [P. 533. Thomas vs. Guiraud et al., 6 Colo., 1883. 182 Appropriation. Doctrine of relation. "If the construction of a ditch be prosecuted with reasonable diligence, the right to water therethrough relates back to the commencement thereof." [P. 149. Sieber vs. Frink, 7 Colo., 1883. Appropriation. Eight to use of water for irrigation a prop- erty right. "The right to the use of water for irrigating pur- poses is a right of property, the subject of ownership like any other property. Although the manner of acquir- ing the right of property in the use of water is peculiar and different from that of other property, such right to use must be determined like any other property right upon the ownership." [P. 477. Cash vs. Thornton, 3 Colo. Appeals, 1893. Appropriation. Property rights in water consist in amount and priority of appropriation. "Property rights in water consist not alone in the amount of the appropriation, but, also, in the priority of the appropriation. It often happens that the chief value of an appropriation consists in its priority over other appropriations from the same natural stream." [P. 27. Nichols vs. Mclntosh, 19 Colo., 1893. Appropriation. Water for domestic use may be appropriated by one not riparian owner. "The right to water appropriated for domestic use does not depend upon locus of its use for that purpose, but may be diverted by one not riparian owner." [P. 339. Town of Sterling vs. Pawnee D. Ext. Co., 94 Pac., 1908. Appropriation. Domestic use under 6, Art. XVI of the con- stitution Use that of riparian owner for himself, his family and his stock. "* * * 6, Art. XVI of the constitution recog- nizes a preference in those using water for domestic purposes over those using it for any other purpose. It is not intended thereby to authorize a diversion of water for domestic use from the public streams of the state, by means of large canals, as attempted in this case. "The use protected by the constitution is such as the riparian owner had at common law to take water 183 for himself, his family or his stock, and the like. And if the term 'domestic use' is to be given a different or greater meaning than this, then as between such en- larged use and those having jprior rights for agricultural and manufacturing purposes, it is subject to that other constitutional provision requiring just compensation to those whose rights are thereby affected." [P. 237. Canal Co. vs. Loutsenhizer D. Co., 23 Colo., 1896. Appropriation. Prior vested rights for irrigation not affected by 5 and 6, Art. XVI, of the constitution, giving users for domestic purpose a preference. do not authorize interference with rights of prior appropriators for irrigation purposes whose rights vested before the adoption of the constitution, in order to supply later comers with water for domestic use." [P. 49. Armstrong vs. Larimer Co. D. Co., 1 Colo. Ap- peal, 1891. Appropriation. Status of carrier under 8, Art. XVI of the constitution Not proprietor of water diverted. "The constitution unquestionably contemplates and sanctions the business of transporting water for hire from natural streams to distant consumers. The Colo- rado doctrines of ownership and appropriation (as de- clared in the constitution, statutes and decisions) give the carrier of water an exceptional status, differing in some particulars from that of the ordinary common carrier. * * For the present it suffices to say that they (rights of carrier) are dependent for their birth and continued existence, upon the use made by the con- sumer. But giving these rights all due significance, I can not consent to the proposition that the carrier be- comes a 'proprietor' of the water diverted." [P. 588. . Wheeler vs. Northern Colo. I. Co., 10 Colo., 1887. Followed in Wyatt vs. Irrigation Co., p. 298, 18 Colo., 1893. "Under the constitution, the , carrier is at least a quasi-public servant or agent. It is not the attitude of a private individual contracting for sale or use of his private property." [P. 589. Wheeler vs. Northern Colo. I. Co., 10 Colo., 1887. Appropriation. Prior vested rights not affected by constitu- tion. 184 "Our conclusion, therefore, that the constitutional provisions (5 and 6, Art. XVI of the constitution) relied upon were not intended to affect prior vested rights, but that owners of such rights are entitled to compensation therefor before the same can be taken or injuriously affected." Sac. 73, Gen. Stat., p. 974; 0525, Rev. Stat., subd. 73, p. 1519, is instructive as a contemporaneous legis- lative interpretation of the constitution. If the rights sought to be acquired did not ante-date the adoption of the constitution 'We are not to be understood * the rule requiring compensation to be made when such rights are taken for a higher use would be different.' ' ! [P. 74. Strickler vs. Colo. Springs, 16 Colo., 1891. Appropriation. Protection of rights vested by priority of possession which were recognized by local customs, by act of congress. Act of Congress July 20, 1800, 9. "Said act of congress provides for the maintenance and protection of rights to the use of water which have become vested by priority of possession and which are recognized and acknowledged by the local customs, laws and decisions of the courts." [P. 530. Platte Water Co. vs. North. Colo. I. Co., 12 Colo., 1889. Appropriation. Protection after patent by act of congress. "July 9, 1870, congress passed an act amendatory of the foregoing act of 1800, in which, inter alia, it was provided that 'all patents granted, or pre-emptions or homesteads allowed, shall be subject to any vested and accrued water rights, or rights to ditches and reservoirs used in connection with such water rights, as may have been acquired under or recognized by the ninth section of the act of which this act is amendatory.' Pub. Stats. (1870), p. 218, 17; Rev. Stats. U. S. (1873-1875), p. 432, 2340." [P. 247. Tynon vs. Despain, 22 Colo., 1890. Appropriation. Legislature has power to regulate use affect- ing appropriation. "While the legislature cannot prohibit the appro- priation or diversion of unappropriated water for useful purposes, from natural streams upon the public domain, 185 that body has power to regulate the manner of effecting such appropriation or diversion." [P. 618. Larimer Co. R. ( 1 o. vs. People ex rel., 8 Colo., 1886. Appropriation. Use must be truly beneficial, not speculative. 8, Art. XVI of the Constitution. "The constitution provides that the water from natural streams may be diverted to beneficial use; but the privilege of diversion is granted for uses truly bene- ficial, not for purposes of speculation. This is ev* dent from the fact that provision is made for establish- ing reasonable rates to be charged for the use of water by individuals or corporations furnishing the same. " Combs vs. Agricultural Ditch Co., 17 Colo., 1892. Appropriation. Right of priority of appropriation not de- pendent upon locus of application. "In the absence of legislation to the contrary, we think that the right to water acquired by priority of appropriation thereof is not in any way dependent upon the locus of its application to the beneficial use de- signed." [P. 449. Coffin et al. vs. Left Hand D. Co., 6 Colo., 1882. Affirmed in Hammond vs. Rose, p. 526; 11 Colo., 1888. Appropriation. Priority right protected as well after patent as when public domain. "The right to water in this country, by priority of appropriation thereof, we think it is, and has always been, the duty of the national and state governments to protect. The right itself, and the obligation to pro- tec t it, existed prior to legislation on the subject of irri- gation. It is entitled to protection as well after patent to a third party of the land over which the natural stream flows, as when such land is a part of the public domain; and it is immaterial whether or not it be men- tioned in the patent and expressly^ excluded from the grant." [P. 446. "And we hold that, in the absence of express stat- utes to the contrary, the first appropriator. of water from a natural stream for a beneficial purpose has, with the qualifications contained in the constitution a prior 186 right thereto, to the extent of such appropriation." [P. 447. Coffin et al. vs. Left Hand Ditch Co., 6 Colo., 1882. Affirmed in Hammond vs. Rose, p. 526; 11 Colo., 1888. Appropriation. Rights of appropriators on main stream not subject to rights of subsequent appropriators on tributary. "The fundamental principle of this system is that priority in point of time gives superiority of right among appropriators for like beneficial purposes. To now say that an appropriator from the main stream is subject to subsequent appropriation from its tributaries would be the overthrow of the entire doctrine." [P. 67. Strickler vs. Colorado Springs, 16 Colo., 1891. Appropriation. Extent of application of above doctrine. "The rights of a prior appropriator from a stream cannot be impaired by subsequent appropriations of water from its tributaries * * *; and this doctrine is applicable to the subsequent appropriation of water from a tributary which enters the main stream below the point where the prior appropriator makes his diver- sion when the result of such appropriation from the tributary is to require the prior appropriator to sur- render the right to additional water for the purpose of supplying appropriations senior to his below the point where such tributary joins the main stream." [P. 83. Platte Valley Irr. Co. vs. Buckers Co., 25 Colo., 1898. Appropriation. Rights of appropriation acquired under an executed agreement not in writing are unaffected by statute of frauds. "Parties by their joint acts may acquire common rights to appropriate water for the purposes of irriga- tion unaffected by the statute of frauds. Such right is not only given by statute, but, in a country with a climate like Colorado, arises ex necessitate rei." [P. 100. Schilling et al. vs. Rominger, 4 Colo., 1878. Appropriation. 3165 Rev. Stats., p. 861, 1; act of 1861, p. 67, does not vest title to water in owner of lands. Secures right to divert for purpose of irrigation. "The act of 1861 does not purport to vest title to water in a stream in the owner of lands thereon. Its object was to secure to such owners the right to divert 1ST water for the purposes of irrigation; * * that the rights under this act, so far as they relate to irrigation, are limited to a diversion from the stream for that pur- pose, and vest no title to any given quantity of wate* flowing therein." [P. 302. Crippen vs. White, 28 Colo., 1901. Appropriation. Use of the surface drainage water. "Use of "the surface drainage water from the irriga- tion of an adjoining tract of land does not constitute an appropriation of such water, under 3177 Kev. Stats., p. 863 ; Mills' Ann. Stats., 2269; p. 1384. [P. 189. Burkart vs. Merbray, 37 Colo., 1906. Appropriation. Underflow subject to appropriation Bur- den of proof. "Those acquainted with the arid region know that some of the most important and well-defined streams become almost, and sometimes entirely, dry during a por- tion of the year, and that there is at all times what is known as the underflow *** and to which rights by appropriation may attach. *** With these physical conditions present, it will be presumed that water flow- ing in a natural channel, which reaches the banks of a stream and there disappears in the sands of the bed, augments the flow in the main stream by percolation, until the contrary is shown, and the burden of proof is on the party diverting such water to establish that it does not mingle with the waters of the main stream." [P. 82. Platte Valley Irr. Co. vs. Buckers Co., 25 Colo., 1898. Appropriation. The owner of land including a spring consti- tuting a source of supply for a creek is not entitled to divert waters of spring to the injury of prior appropriators. "Where one of the sources of the water of a creek is a spring, the fact that the volume of the water of the spring has been increased by seepage from irrigated lands above does not entitle the owner of the land including the spring to divert the water of the spring to the injury of prior appropriators of water from the creek." [P. 285. Clark et al. vs. Ashby et al., 34 Colo., 1905. Appropriation. Under 3177 Rev. Stats., p. 863, 13; Mills' Ann. Stats., 2269, p. 1384. Appropriation of seepage water cannot be made after same has reached the bed of natural stream flowing through claimant's land. 188 "Whether arid to what extent this act is constitu- tional we decline to say ***." [P. 108. "If valid at all, it is applicable only to appropria- tions of waste, seepage and spring waters before they reach the channel or bed of a natural stream, whether by natural surface flow, by percolation or by being artificially turned into the same. After waste waters reach the stream, unless there is then an intention by the owner to reclaim them, they become part of its vol- ume, and insure to the benefit of the appropriates of its waters, to be enjoyed in accordance with their numerical - priorities." [P. 109. La Jara C. & L. S. A. vs. Hansen, 35 Colo., 1905. Appropriation. Passive acceptance of water flowing into a canal does not constitute an appropriation. "*** the plaintiff has not made a valid appropria- tion ** H it took no affirmative steps with that end in view, and its passive acceptance of waters that flowed into its canal *** does not constitute a valid appro- priation." [P. 490. Smith Canal vs. Colo. Ice & Storage Co., 34 Colo., 1905. Appropriation. Water appropriated for non-absorbing use and discharged into stream after such use, appropriator making no further claim to it, is abandoned water ^subject to appropria- tion. Water appropriated for a non-absorbing use, such as power, and allowed to discharge after such use into the stream from which it is taken, the appropriator thereafter making no further claim to it, is abandoned water. "It then became subject to appropriation; and when once it was appropriated by a ditch owner below place of discharge, ditch owners higher up the stream are not entitled to it, either during temporary non-use, or after abandonment, though their priorities as to other quantities of water, or for other seasons of the year, may be prior in time." [P. 170. The Cache La Poudre Reservoir Co. vs. The Water Supply & Storage Co. et al., 25 Colo., 1898. See Windsor Res. & C. Co. vs. Lake Supply Ditch Co., p. 736., 98 Pac., 1908. Appropriation. Water hoisted from a mine subject to appro- priation under 4231 Rev. Stats., p. 1064; 2 Mills' Ann. Stats., 3177, p. 1806. Initiation of rights. 189 "Our statute has made Such water the subject of ap- propriation." [P. 133. '2 Mills' Ann. Stats., 3177. "Where it becomes necessary from time to time to construct new tunnels, each lower than the former, in order to drain mines, and a person ' appropriated the water obtained from the first tunnel for irrigation so long as it flowed, and continued to attempt to likewise utilize that from the succeeding tunnels, such person's appropriation dates back to the time of the first appro- priation." [P. 129. Ripley vs. Park Center L. & W. Co., 40 Colo., 1907 Appropriation. Water passing through sand and gravel con- stituting bed of stream, and lands adjacent, not percolating waters as defined by the common law. water passing through sand and gravel consti- tuting the bed of the stream and the lands so nearly adjacent that the only and natural outlet would be through such channel, are not percolating waters, as or dinarily defined by the common law; but, as already stated, are a part of the waters of the stream.'- [P. 71. Buckers Irr. Co. vs. Farmers D. Co., 31 Colo., . 1903. Appropriation. Presumption as to tributary water reaching main stream Burden of proof. it is presumed that the waters of a tributary stream, less evaporation, if not interfered with, will reach main stream either by surface or subterranean flow." [P. 301. A junior appropriates on a tributary sought to ap- propriate water, claiming that the water in such tribu- tary, if suffered to flow, would not reach headgate of a senior appropriator on main stream, and hence its di- version would not injure such senior appropriator. Held; Burden of proof was on junior appropriator to show such facts. Patterson vs. Payne, 95 Pac., 1908. Appropriation. Increase in flow due to personal efforts and expenditures. "It therefore follows * * * with reference to the stream from Beaver Lake, that to the extent of its original and natural flow, it was a tributary of the river, and * * * the defendants were entitled to the use of the water of this stream to the extent that by their 190 efforts and expenditures they had increased its aver- age, continuous flow * * *." [P. 82. Platte Valley Irr. Co. vs. Buckers Co., 25 Colo., 1898. Appropriation. Increase water does not mean surface or subterranean flow in channel Burden of proof. "It is only the actual increase resulting from the addition of water to a natural stream which would not otherwise pass down either its surface or subterranean channel, which the law recognizes as an increase of that character which can be diverted as against those entitled to its natural flow." [P. 70. Upon party whose right is based upon increase flow of a natural stream, to clearly establish that they have increased flow of stream. [P. 70. Burkers Irr. Co. vs. Farmers Ditch Co., 31 Colo.. 1903. Appropriation. Underflow is governed by same rules of law as streams flowing upon the surface Fact that surface bed is not visible does not change rules. "The subterranean volume of water which finds its way through the sand and gravel constituting the beds of the streams which traverse the country adjacent to the mountains of this section, are recognized as a part of the waters of the stream to the same extent as though flowing upon the surface. That the surface bed of such a stream may not be visible does not change the rule with respect to this class of flowing waters. Underground cur- rents of water which flow in well-defined and known channels, the course of which can be distinctly traced, are governed by the same rules of law as streams flowing upon the surface." [P. 326. Medano Ditch Co. vs. Adams, 29 Colo., 1902. Appropriation. Right to enter stream to remove obstruction. "The appellant (appropriator) had the right to enter the bed of the stream above the ditch and to remove sediment or obstructions which may have changed or ob- structed the course of the current so as to prevent it from entering his ditch." "The appropriation of the water at the point named carried with it an implied authority to do all that should become necessary to secure the benefit of the appropria- tion; to this extent the appropriator acquired an ease- ment in the adjoining lands ; but the right thus acquired 191 is one which is held to the narrowest limits compatible with the enjoyment of the principal easement, which is the right to the use of the water/' [P. 596. Crisman vs. Heiderer, 5 Colo., 1881. Appropriation. Joint filing and construction of ditch, but separate application of water 'to individual property Not tenants in common in such water right. A joint filing of claim to water and a joint building of a ditch to convey water, and at place of application water to be divided one-half upon the separate indi- vidual property of each Held : They are not tenants in common in the water right, but each had a separate and several right to one- half the water appropriated. [P. 355. City of Telluride vs. Davis, 33 Colo., 1905. Appropriation. Change in point of diversion Does not affect original priority. "A change in point of diversion on the same stream does not affect the priority acquired by the original ap- propriation, provided the quantity of water diverted re- mains the same, and no intervening appropriator is in- jured." [P. 149. Sieber vs. Frink, 7 Colo., 1883. Appropriation. Map and statement law so called, or Session Laws 1881, p. 161, M. A. S., Sec. 2264 Unconstitutional. 'Under Sec. 12, Art. XXV, of the constitution, Ses sions Laws of 1881, p. 161, M. A. S., Sec. 2264, "held un- constitutional. Sec. 2 of said laws is not clearly stated in title of said act.' 7 [P. 347. Lamar Canal Co. vs. Amity D. & I. Co., 26 Colo., 1889. Appropriation. Eight of carrier" to demand a bonus or roy- alty after tender of rate fixed by commissioners. "Any unreasonable regulations or demands that operate to withhold or prevent the exercise of this consti- tutional right by the consumer must be held illegal, even though there be no express legislative declaration on the subject." [P. 591. Wheeler vs. Northern Colo. I. Co., 10 Colo., 1887. Appropriation. Effect of climatic conditions upon appropri- ation. "The appellee's appropriation was of an amount of water necessary for the operation of the machinery used ill his mill, in wit, I Id miner's indies of water Mowing in .Mill <'rerk, subject in .ui\ prior appropriation of such waters. The fact Hut Hie volume of water, bv reason of climatic conditions, is sufficient for the use intended dm ill.U certain portions of the \c;ir o|ll\, dors liol. ol' ilsi'll'. liniil (lie appropriation i' such periods ol' lime, bill is available whenever, b\ reason ol' Hie How, there is snlli cienl water for snrli benelicul use." | I*. ;;.V.. City of r rrlhn-i;ivis. :::i ('(do., HHC,. Appropriation. Tjixjilion, \\;i!ci nuins, pipes ;ind livHrjuils in pnld'h- slnvls ;irc nsillv for pur|oscs of Inxnlion. Indn- our slJilulo, ^ItSO, (Jen. Sl;ils. ( :.' Mills' Ann. Shits., ^ITS'J ; :,:>! K'rv. St;ils., \l\, p. li'.Mi'i, :ui. vs. rncldo NN'atrr Co., I I <'ol<>. Ap penis, IS!S. Appropriation. Canal r.xnnpl Iroin taxation nndVr >;.', Art. ID nf Hie constihitinii. " r riiis provisinn was adnph-d to rrlirvc from scpa ral< taxation only those canals \\liicli arc cxdnsi\ cly usrn 1 for irri^at in- the lands o\\ tied l>\ those \\lio <>\\ n the canals, cither in whole or in part." | P. LM!. l-mpire ('anal ( 'o. \ s. Kin (irande ( 'o., *J 1 ('(do., 1805. Appropriation, Ta \a t inn. "Tin 1 fact still remains that so lnn- as the company ifl inlcrcHtc*! in the ditch witli water rights remainin;- unsold, it is its purpose to make use of the ditch as a means Hirmi^li which to derive a profit from the sale of further water rights. The prn\ isinn nf the consli union upon which the ditch company i-elies \\asadopled for the sole benelit (>. .Mnri-ax vs. Mont rose ( 'onn tv, L'S ( 'olo., I!MH. Appropriation. Technically, at common law a water riyhl is imi :in appurtenance. "The ri^ht to the use of water for irrigation from an artificial canal for conveviim- it, can not b ( > regarded .'is appurtenant lo UK- land, tech n ic;i 1 1 y, not at common law." | I'. IMS. r.loom vs. West, :; Colo. Appeals, 1893. Appropriation. < 'onveyances of \V;I!T rights Kules to deter- mine whether or nol a waler ri-hl passes MS ;in a ppurlonaneo. "A waler rihl is ;i disiiiirl subject of ^ranl, and may be conveyed separate and ;ip;irl from Hie |;m<| upon which il is n!ili/,cd; Iml, nevertheless, whether :i deed lo such hinds conveys such ri^hl depends upon Hie in lenlion of Iho "Tanlor. In be delerniiiied from (he lernis of Hie deed, or, when NIC latter is silenl ;is lo s;iid riiihl, from Hie circumstances surroiindinii (he I r;insjicf ion." I r. iss. Arnell vs. Linharl, '2\ Colo., is'.i.V " 'A llhonuli ;i w:iler ri<^lil m;iy le ;i ppu rlenu nl to hind, il is I In- snhjeej of |ropri-|\ :ind iiiny b< trans- ferred eilher with or wilhonl Ihe hind/ \\ (>1, Slrickler vs. Cily of Colorado Springs, Id Colo. I'.eiii"-. I here fore. ;i dislincl snhjeri of tii-;inl, ;ind Iriinsfornblc eilher \\ilh or willionf (he hind, \\lielher u deed to land convoys Hie \v;ilor ri^lil depends upon (lie inlonlion of Ihe n'nmlor, \\hich is lo le <:;i I In-red from Ihe express lerms of Hie deed; or, \\lien if is silenl ;is lo Ihe \\;iler ri^lil, from Ilie presnnipl ion Ui:il :i rises from (lie cireinn shinces. ,-ind wheiher said ri^hi is or is not incident to and necessary lo Ihe benelieial enjoymenl of Ihe land and il is now stare dooisis vvilli us. .We are satisfied wilh il and ;iain appro\c il." ||. 111*. liessemer I. I >. Co. vs. \\oolle\, :;L' Colo., |y Ilin parly making il; inn a stranger to such an agreement ean not object thai il was not so evidenced. The ques- lion is purely personal and can not In- raised by those who were neither parties nor privies lo Ihe agreement." 1 1*. <;i. Daum vs. Conley, 27 Colo., 199. Appropriation. Convi-yance of waler rights < 'oust ruction of hahendum clause in deed of Irusl. "'To have and to hold same * * - and all the eslalc, i-i^hl, lille. interest, claim or demand in and to I lie same, either now or which may hereafter be ac- 194 quired/ does not grant any after acquired property, but merely confirms in the grantee any title to the prop- erty specifically conveyed which grantor might after- wards acquire. Such clause could not operate to convey a water right afterwards acquired and applied to the land conveyed." [P. 439. Bessemer I. D. Co. vs. Woolley, 32 Colo., 1904. Appropriation. Conveyance of water rights Sheriff's deed under foreclosure. "Where a sheriff's deed did not purport to convey the water right, and he had the right to levy thereon, but did not do so, neither the sheriff's nor purchaser's intention can control, * * * the water right is not conveyed." [P. 104. Cooper vs. Shannon, 36 Colo., 1906. Appropriation. Conveyance of water rights A water right used to irrigate lands may pass as an appurtenance. "A water right which is used in irrigating lands may pass as a grant of the lands themselves under word 'appurtenances,' if such was the intention of the grantor." [P. 494. King vs. Ackroyd, 28 Colo., 1901. Appropriation. Conveyance of water rights Right of pur- chaser under forclosure sale. "Failure of trustee to secure a transfer of stock in an extension ditch, used only as a carrier of stock- holders' water in an original ditch, does not give pur- chaser under foreclosure a right to have water carried in such extension ditch, notwithstanding a clause in trust deed purporting to convey all rights used as a means of conveying water to mortgaged premises." [P. 291. Oligarchy D. Co. vs. Farm Inv. Co., 40 Colo., 1907. Appropriation. Conveyance of water rights Conveyance of land only does not transfer interest in ditch. "A conveyance of land without mention of a water right can not be taken to transfer an interest in a ditch, although the water carried may have been used upon the land. "In this state it is regarded as an independent right, which may be the subject of sale and conveyance, but a technical transfer is essential to vest in the trans- feree a title to the water." [P. 119. Child vs. Whitman, 7 Colo. Appeals, 1895. 195 Appropriation. Conveyance of water rights Grantee's ac- ceptance of a deed with reservation as to reservoir priority Where such priority had not been secured does not estop gran- tee from claiming priority of its own for such reservoir. "A grantee's acceptance of a deed containing a reservation to the grantor of a priority or appropria- tion of water for a certain reservoir where no priority or appropriation has been secured, did not estop the grantee to claim an appropriation of its own for such reservoir.'' [P. 730. Windsor Kes. & Canal Co. vs. Lake Supply D. Co., 98 Pac., 1908. Appropriation. Conveyance of water right. "Where a party owns a half interest in a certain irrigating ditch, and the water decreed to such ditch, which he used to irrigate certain land, and also owned 20 inches of water decreed to another ditch which, by consent of the parties interested, he diverted through the former ditch and used in irrigating the same land, a deed conveying said land, together w^ith one-half inter- est in the ditch, and 'one-half interest in the water be- longing to said ditch, or that is entitled to run through the same either by decree, appropriation or ownership/ conveyed the 20 inches of water." [P. 112. Fluke et al. vs. Ford, 35 Colorado, 1905. Appropriation. Abandonment What constitutes "To constitute an abandonment there must be a concurrence of an intention to abandon with actual relinquishment of the property." [P. 1. Kichols vs. Lantz, 9 Colo. Appeals, 1896. Appropriation. Abandonment Failure to use for an unrea- sonable time creates presumption Not conclusive, however. "A failure to use (water) for a time is 'competent evidence on the question of abandonment, and if such non-use be continued for an unreasonable period, it may fairly create a presumption of intention to aban- don; but the presumption is not conclusive, and may be overcome by other satisfactory proofs." [P. 154. Sieber et al. vs. Funk et al, 7 Colo., 1883. Appropriation. Abandonment Burden of proof. "It is elementary that in claiming a right under abandonment, the burden of proof is upon the party asserting it, and before it can be sustained, the aban- IDG donment must be shown by a preponderance of proof." [P. 364. Hall vs. Lincoln, 10 Colo. Appeals, 1897. Appropriation. Abandonment applies only to completed ap- propriations. "The question presented in this connection (con- ditional decree) is not one of abandonment, as that term when employed in our irrigation law applies only to completed appropriations of water, #nd there can be no abandonment of that which never existed." [P. 306. Conley vs. Dyer, 95 Pac., 1908. Appropriation. Abandonment of priority Decree res judi- cata. "The volume of the priorities awarded in the ad- judication proceedings must be treated as res judicata, and none of the facts upon which that award was predicated can be inquired into for the purpose of de- termining the question under consideration." Platte Valley Irr. Co. vs. Central Truot Co., 32 Colo., 1904. Appropriation. Abandonment matter of intention Evi- dence. "Abandonment is a matter of intention, and, there- fore, the intent with which the acts claimed to oper- ate as an abandonment were done is immaterial." [P. 457. B. & W. B. D. Co. vs. L. C. D. & R. Co., 36 Colo., 1906. Appropriation. Abandonment of construction Eft'eet of. "Upon abandonment of the construction of a pro- posed canal without intention of resuming, all in- cipient rights lapse and revert to the public, and are not thereafter capable of being sold or transferred." The Colo. L. & W. Co. vs. The Kocky Ford C., R., L., L. & T. Co., 3 Colo. Appeals, 1893. Appropriation. Re-entry and prosecution after negligence. "If, by neglect to apply the water within a proper time, the right to apply was forfeited, the water re- verted, and any one could proceed to appropriate and apply it; but such right could only attach while the right of the former claimant was in abeyance by reason of his negligence, and the second party must have availed himself of the right before the re-entry and 197 prosecution of the enterprise by the first party." [P. 135. The Beaver Brook Res. & C. Co. vs. St. Vrain Res. & Fish Co., 6 Colo. Appeals, 1893. Appropriation. Abandonment Evidence of non-user and similar acts before rendition of decree is proper for purpose of showing intention after proving subsequent abandonment by legal evidence. "Abandonment as applied to property rights con- sists of non-user and intention." "Though evidence of non-user and similar acts be- fore a decree establishing priorities to the use of water by the owner of an irrigation ditch is improper for the purpose of proving his right to use a less volume of water than that decreed to him, as well as the purpose of showing the element of non-user in a sub- sequent abandonment relied on by another appropria- tor suing for diversion of water, yet where there is sufficient legal evidence as to the element of non-user subsequent to the decree, evidence of non-user and sim- ilar acts by such owner before the decree for the purpose of showing his intent in not using what was awarded to him, is proper and not prejudieal." [P. 1112. Alamosa Creek Canal Co. vs. Nelson, 93 Pac., 1908. Forwald vs. Nelson. Same as above. Appropriation. Abandonment under 3318 Rev. Stats, to Right of Review. See Peterson vs. Durkee, p. 258, 15 Colo. Ap- peals, 1900. Appropriation. Contracts Status of consumer under con- tract with carrier. "His contract with the company (carrier) is not the purchase of a given volume of water, but the pur- chase of the right to use the canal as a means to con- duct a given volume, or so much thereof as may be nec- essary to irrigate a certain number of acres." [P. 329. Wright vs. Platte Val. Irrigation Co., 27 Colo., 1900. Appropriation. Contracts Contract limiting application of water to particular lands upheld under 2283, Mills' Ann. Stats., p. 1388; 3239 Rev. Stats., p. 873, 75. "We are unable to see wherein such limitation is against public policy, or is in any sense an illegal or un- 198 reasonable exaction on the part of the ditch company. * * * And is directly in line with the policy pre- scribed by the legislature upon this subject. Sec. 2283, Mills' Ann. Stats., p. 1388." [P. 330. Wright vs. Platte Val. Irrigation Co., 27 Colo., 1900. Appropriation. Contracts Effect of contract upon priori- ties Waiver. Consumer of water under decree by original con- struction may by contract waive priority and be com- pelled to prorate with consumer using water under de- cree for extension. [P. 489. O'Neil vs. Ft. Lyon C. Co., 39 Colo., 1907. Appropriation. Contracts Measure of rights, duties and liabilities thereunder. "To be found in statutes of the state and in the con- tract, not in rules of the company." [P. 385. Downey vs. Twin Lakes L. & W. Co., 41 Colo., 1907. Appropriation. Contracts Provision in water contract that upon refusal of carrier to furnish water, consumer may do so, is void. A provision in a water right contract between a ditch company and consumer, to the effect that if a ditch company should at any time refuse to furnish water, the consumer may take it himself, is void. [P. 191. As being inconsistent with statute law of this state." (An act regulating distribution of water, 1887.) [P. 196. White vs. Highline Canal Co., 22 Colo., 1896. Appropriation. Contracts Where the owner of a reservoir, who also owns the land upon which it is situated, contracts to deliver to two grantees, each a specific quantity of water, such contract is the measure of their rights unaffected by rights of users from natural stream. "A contract between the owners of a reservoir, who are likewise owners in fee of the land on which the same is situate, of the one part, and two grantees of definite quantities of water to each, * * * is conclu- sive of such rights * * * and can in no manner be affected by the rights of user, which may be acquired to the waters of a running stream under the constitution and statutes of the state." [P. 396. Rockwell vs. Highland Ditch Co., 1 Colo. Appeals, 1892. 199 Appropriation. Contracts Carrier under contract liable in damages for failure to deliver water due to negligence Vis major only will relieve carrier. The party contracting to supply it (water) should not be exonerated from a failure to perform, ex- cept under circumstances clearly showing that the fail- ure w r as chargeable to vis major, and not to negligence and inattention." [P. 427. Pawnee, etc., Canal Co. vs. Jenkins, 1 Colo. Ap- peals, 1892. Appropriation. Contracts Failure of carrier to deliver water. "Where the owner of land, which was entitled to a supply of water through an irrigation ditch, leased the land, covenanting in the lease to supply sufficient water for irrigation, such owner is the real party in interest, and entitled to sue for a failure of the ditch owners to deliver the water necessary for the raising of crops on the land, whereby the lessees were unable to pay the stip- ulated rent to the owner. [P. 237. Farmers' H. L. Co. vs. New Hamp. Co., 40 Colo., 1907. Appropriation. Contracts Relation between irrigation com- pany and its stockholders that of implied contract. "The relation between an irrigation corporation and its members is one of implied contract, from which arises a trust with which the corporation is charged to conduct the common business in the interests of the stockholders. Each share of stock, in respect to the benefits (in this case water for irrigation) to which it entitles its share- holders, is equal to every other share." [P. 30. Rocky Ford C. R, L. & L. Co. vs. Sampson, 5 Colo. Appeals, 1894. Appropriation. Contracts Contract making stock in ditch company do double duty is void. "A contract whereby certain stockholders in a ditch company sold their stock to a reservoir company, the vendors to continue in possession of their certificates, and to divert water for the use of their land to the same extent theretofore enjoyed, and the reservoir company to have the right to divert for storage and direct irriga- tion the difference between the quantity of water ac- tually needed by the vendors and the maximum repre- sented by the certificates in the priorities of the ditch, 200 was invalid as requiring the water rights evidenced by the shares of stock to do double duty." [P. 317. Cache la Poudre Irr. Co, vs. Hawley, 95 Pac., 1908. Appropriation. Contracts Rule for interpretation of con- tracts Application. "As a guide to a correct interpretation the law per- mits the subject matter of a contract, the situation of the parties at the time of its execution, and all surround- ing facts and circumstances to be taken into considera- tion." [P. 46. Plaintiff granted canal company a right of way in consideration of use of water equivalent to 20 shares of the capital stock, at time of entering into contract, equivalent to 3.6 cubic feet of water. Afterwards com- pany acquired other priorities. Held: The 20 shares did not carry with it any in- variable quantity of water; it carried only the right to 3.6 cubic feet of water, provided the prorata share of water going to 20 shares amounted to 3.6 cubic feet, and that he had no right to share in priorities acquired after contract was made. [P. 48. True vs. Rocky Ford C. R. & L. Co., 36 Colo., 1906. Appropriation. Contracts Rule for interpretation of con- tracts Application. "In order to determine this (the true intent and meaning of the contract) the terms used must be read in the light of the circumstances surrounding the par- ties at the time of their execution, the subject matter thereof, and the purposes and objects to be accomplished thereby." [P. 309. Wyatt vs. Larimer & Weld Irr. Co., 18 Colo., 1893. "The controversy arises upon the meaning to be given to the words, 'estimated capacity to furnish water. 7 " [P. 310. "In the light of the purpose, therefore, to be accom- plished, we think the words 'estimated capacity/ limited and modified as they are (in. contract) by the words *to furnish, 7 must be construed as meaning the ability of the canal to supply or deliver water." [P. 313. Supra. 201 Appropriation. Contracts. Status of a company organized to take title in canal for benefit of purchasers of water rights up to canal's estimated capacity in regard to purchaser of deed for a water right in the canal after the estimated capacity had been sold. See Blakely vs. Ft. Lyons Canal Co., p. 225, 31 Colo., 1903. Appropriation. Contracts Eight of carriage of water a con- tinuing easement under executed agreement to enlarge. A ditch company, in consideration of its carriage of water, enlarged a ditch, putting in all necessary dams, flumes and headgate at its own- expense the two com- panies prorating maintenance charges of enlarged ditch and in common unrestricted as to time such agreement should run. Held: Their right is clearly an easement * * * not an easement revocable at the pleasure of owner of ditch before enlargement, but a continuing one, of which the company enlarging could enforce the quiet enjoy- ment. [P. 281. Chicosa Irr. D. Co. vs. El Moro D. Co., 10 Colo. Appeals, 1897. Appropriation. Contracts A perpetual right to the use of water from an irrigating ditch, acquired or reserved under con- tract, is an easement. "A perpetual right to the use of water from an irrigating ditch, acquired or reserved under contract, constitutes an easement in the ditch, which cannot be lost by non-user alone, short of the period of limitation for action to recover such property." [P. 213. People ex rel. Standart vs. Canal Co., 25 Colo., 1898. Appropriation. Contract with city or town for water works. See Grand Junction Water Works Company vs. City of Grand Junction, p. 425-14, Colo. Ap- peals. Appropriation. Contracts A perpetual right to have a cer- tain quantity of water flow through an irrigating ditch is an easement and a freehold estate. "A perpetual right to have a certain quantity of water flow through an irrigating ditch is an easement in the ditch, an incorporeal hereditament descendible by inheritance, and a freehold estate." [P. 298. 202 Held: Supreme Court has jurisdiction on appeal under 388, p. 206, Code 1887, in controversies involving- such right. Wyatt vs. Larimer & Weld Irr. Co., 18 Colo., 1893. Appropriation, Contracts Easement created by. "The owners of an irrigation ditch and their lessees in a contract covenanted jointly and severally, for them- selves, and each of them, their successors, assigns, etc., to furnish water for the lands of certain adjoining land- owners, their heirs, executors, administrators, assigns, etc., for a certain price. The contract further provided that the covenants on the part of the owners and the lessees of the ditch touching the furnishing of the water should run with the right of way and ditch and with the lands, forever, and be obligatory upon and in favor of the owners and proprietors of the ditch and lands; and that, by virtue thereof, the owners of the land should, at all times, receive from the ditch all the neces- sary water for the irrigation of the lands, any change in the ownership, control or management of the ditch nptwithstanding. The contract was duly recorded. Held, that such contract created an easement and cove- nants running with the land, binding upon the owners of the ditch." [P. 476. Farmers' H. L. Co. vs. New Hamp. Co., 40 Colo., 1907. Appropriation. Under the constitution of the state of Colo- rado. Rev. Stats., 1908, 3165-3232, p. 861. Right to use stream bed as a reservoir site. "The word 'divert' must be interpreted in connec- tion with the word 'appropriations' and other language used in the remaining sections of that instrument (con- stitution) referring to the subject of irrigation. We think there may be a constitutional appropriation of water without its being at the instant taken from the bed of the stream." [P. 616. Larimer Co. R. Co. vs. People ex. rel., 8 Colo., 1885. Use of water.- 3175 Rev. Stats. 1908, p. 862, 112267 Mills' Ann. Stats., p. 1384. Prorating statute constitutional. "All co-consumers taking water within a reason- able time have priorities of even date with each other." [P. 120. "There may, of course, be secondary diversions (to which the rights of secondary consumers relate) through 203 subsequent lawful enlargements of the quantity of water legally taken in the first instance." [P. 120. "The word 'co-consumer' will * * * be ap- plied exclusively to consumers taking from same arti- ficial stream." [P. 119. "The prorating statute, which we are asked to de- clare unconstitutional, does not take away the con- sumer's right to water; it simply regulates the use of this right. The consumer's constitutional rights must, of course, be preserved; but it is hardly less important that the legislative authority to adopt regulations which shall advance the wise purpose of the constitutional provision, and promote the true interests of the con- sumers themselves, be maintained." [P. 129. "I do not say that under no circumstances can any portion of this provision be challenged as uncon- stitutional, but I do say that the present arraignment thereof is unfounded." [P. 129. F. H. L. C. & R. Co. vs. Southworth, 13 Colo., 1889. Use of water. Constitutional limitation of operation of prorating statute. " 'The appropriations of water by consumers who receive the same through the same ditch do hot neces- sarily relate to the same time; but, on the contrary, such consumers may have different priorities of right.' Thus, in effect, the prorating statute, so-called (Gen. Stats., 1883, 1722), was upon constitutional grounds, limited in its operation." [P. 26. Nichols vs. Mclntosh, 19 Colo., 1893. Use of water. As to decree being in violation of prorating statute of 1879. "It is also claimed that the decree is in violation of the prorating statute of 1879. We do not so consider it. It is admitted in this case that this ditch is entitled to priorities as of date of the original construction, and by reason of its several enlargements. These priorities are protected by the constitution, and cannot be inter- fered with by legislative action. The most favorable view that can be taken of the statute is that in times of scarcity of water it may be resorted to to compel the prorating of water among consumers having priorities of the same, or nearly the same, date. Farmers' High Line Canal & Eeservoir Co. vs. Southworth, 13 Colo., 111." [P. 491. Larimer & Weld Irr. Co. vs. Wyatt, 23 Colo., 1897. 204 Use of water. Appropriators of water through same ditch may have different priorities, based upon the time of the several appropriations. "It may, therefore, be considered as stare decisis in this jurisdiction that there may be circumstances in which water consumers from the same ditch may not be compelled to prorate with each other." [P. 119. Farmers' Highline Canal & Res. Co. vs. White, 32 Colo., 1904. Use of water. Loan statute, 3232 Rev. Stats., L. '99, p. 236, 3; 3 Mills, 2273c Constitutional. "* * * Such provision only permits an exchange or loan of water under conditions which do not injuri- ously affect vested rights of other appropriators, and therefore, is not in violation of section 6, art. 16, Colo- rado Constitution * * *'." [P. 247. BoAvman vs. Virdin, 40 Colo., 1907. Use of water. Construction of loan or exchange statute, 3232 Rev. Stats., 1908, p. 871, 68; 2273c 3 Mills, p. 650. Con- fers no new right. Right under statute is subject to the limita- tion that vested rights of others be not impaired. Burden of proof upon party asserting rights under statute. "* .* * This section neither adds to, nor takes from, any rights which owners of ditches and water rights had before the act was passed. They had * * * the right to make a sale of water rights separate from the land in connection with which the right was initiated and became perfected, and to change the point of diversion, place and character of use; pro- vided, always, that in its exercise the rights of others are not injuriously affected. It would seem to follow from this that the lesser right temporarily to exchange or loan water should be attended with the same results, and be subject to the same limitation, if, indeed, it ex- ists in a given case. * * * The right * * if it exists at all * * * is just as much subject to the qualification that the vested rights of others are not to be impaired as in the case of an attempted permanent change in the point of diversion. And when it has been made, though it may be effected without first obtaining a decree therefor, it is incumbent upon the party as- serting rights under the loan or exchange, when chal- lenged by an action in court, affirmatively to show that it can be exercised without interfering with, or impair- ing, the rights of -others." [P. 401. Fort Lyon Canal Co. vs. Chew, 33 Colo., 1905. Use of water. An action to change point of diversion, ques- tion as to amount of interest, may be determined in same action. Construction of transfer decree in time of scarcity. But after the appropriations have been determined and settled and the owner of any portion thereof desires to change the point of diversion or place of use, of so much of the appropriation as he is entitled to, the question as to the amount of his interest is mater- ial and must be determined at the time or before the change is permitted. There is no good reason why this may not be determined in one proceeding." [P. 33. "In the event of the supply of water becoming in- sufficient to supply the appropriation, the decree per- mitting the transfer will be construed as permitting only such portion of the appropriation as the amount trans- ferred bears to the whole." [P. 34 Hallet vs. Carpenter, 37 Colo., 1906. Use of water. 3226 Rev. Stats., p. 870, 62; acts of 1899 and 1903, S. L. '99, p. 235.; S. L. '03, p. 278 Not invalid as ex post facto law. "* * * Is not invalid as ex post facto law,. al- though they may apply to changes already made, as these acts are purely remedial." [P. 535. Ashenfelter vs. Carpenter, 37 Colo., 1906. Use of water. Under act of 1899, S. L. '99, p. 235, a transfer decree must first be obtained before right of change of point of diversion will be recognized, notwithstanding change was made prior to the passage of the act. "We are, therefore, of the opinion that before an ap- propriator can obtain a decree permitting a substantial change in the point of diversion, which he can enforce against other appropriators, or require the officer charged with the duty of distributing water to obey, even though he made such change before the act of 1899 went into effect, he must proceed in the manner provided by that act." [P. 533. New Cache la Poudre Irr. Co. vs. Arthur Irr. Co., 37 Colo., 1906. Use of water. In a proceeding under 3226 Rev. Stats., merely right to have change made can be determined Right ap- 206 plies to shareholder in a mutual ditch company Notice, where published when district extends into more than one county. "We are of opinion that if, under the evidence, there is any basis for these contentions (that ditch was not entitled to quantity of water which decree gave and abandonment after rendition of decree), the statute un- der which the present proceeding is being conducted did not contemplate their determination. Merely the right of the petitioner to have such change made can be deter- mined." [P. 61. "We know of no reason why discrimination should be made against the right claimed when the one who asserts it is under a mutual'ditch." [P. 61. The requirement that notice shall be published in a public newspaper "in such county" evidently refers to the county in which is held the court that has juris- diction to adjudicate, the one in which the proceeding was properly instituted. [P. 66. "The court, however, under its power to make proper . rules, might well order publication to be made in one public newspaper in each of the counties constituting the district, and such course is advisable." [P. 67. Wadsworth D. Co. vs. Brown, 39 Colo., 1907. Use of water. District court has jurisdiction to render de- cree changing point of diversion from one water district to an- other. [S. L. 1899, chap. 105; amended 3230 Rev. Stat., p. 871, 66. "We may also say here that it is unfortunate that this remedial statute did not contain a provision for giving notice to those outside the particular water dis- trict when a change from one district to another is sought and that it lacked the specific directions for giving effect to the decree which the curative act (S. L. 1903, p. 278) contains. But these omissions and defects do not destroy the property right of a water right owner to have the point of diversion changed from one water district to another, although it may effect the conclu- siveness of the decree * * *." [P. 218. ', Lower Lathan D. Co. vs. Bijou Irr. Co., 41 Colo., 1907. Use of water. Appropriates for mining purposes may change point, place and character of use. "We think that the rule announced in Kidd vs. r Laird (15 Cal., 162-180), that in the absence of in- 207 jurious consequences to others, any change which the party chooses to make is legal and proper. "The right to change, so limited, includes the point of diversion, and place, and character of use." [P. 19. Fuller vs. Swan River P. M. Co., 12 Colo., 1888. Use of water. Rule as to change in point of diversion ap- plies to agricultural appropriations. "In Fuller vs. Swan River Mining Co., 12 Colo., 12, It was there held that one who has the right by appropriation to divert the waters of a stream may change the place of diversion and also the place of use; for although the decision is based upon diversion for mining purposes, no reason is perceived why the rule in reference to appropriation for agricultural uses should not be the same ; the requirement in all cases be- ing that the water diverted from the stream shall be applied to a beneficial use." [P. 68. Strickler vs. Colo. Springs, 16 Colo., 1891. Use of water. Change from one agricultural use to an- other Under certain limitations, water under priorities for direct irrigation may be stored during the direct irrigation season for a later use in same season. "If the right to change from agricultural to do- mestic, and from mining to agricultural uses, and vice versa, is legal, certainly no good reason can be advanced why the change from one agricultural use to another may not be allowed." "We are of the opinion that the appellant is entitled to so utilize these priorities; that is to say, entitled to store, during the direct irrigation season, the quantity of water, measured by volume and time, which it would be entitled to divert during that period for the purpose of direct irrigation." [P. 387. Upon petition for rehearing, opinion states : "This does not enlarge the use of the priorities of appellant, either in time or quantity; neither does it con- fer upon it the right to divert and store the water rep- resented by its priorities every day during the irriga- tion season, or to convert such priorities into a storage right during the non-irrigating season, as contended by counsel, but limits its rights strictly to the diversion of water, both as to volume and time, to the same quan- tity and the same time we have indicated." [P. 389. Seven Lakes R. Co. vs. N. L. & G. I. & L. Co., 40 Colo., 1907. 208 Use of water. Act of April 1899, p. 235, providing for change of point of diversion, is constitutional. [3226-3231, p. 870, Kev. Stats., supersede 1 and U, p. 235, L. 99. "This court has held that our so-called irrigation statutes for the ascertainment of priorities, and placing the distribution of water for irrigating purposes under control of state officers, are constitutional, though they affect rights which accrued before the enactments were made, and place upon their enjoyment limitations from which they were theretofore exempt. These statutes are upheld as a rightful exercise of the police power of the state. "This remedial statute, therefore, may be upheld upon the same principle." [P. 475. Irrigation Co. vs. Water S. & S. Co., 29 Colo., 1902. Use of water. Qualification of rule allowing change in point of diversion applies to subsequent appropriators. "* * * General rule is that an appropriator of water for any beneficial purpose may change the place of diversion at his pleasure, "provided the rights of others are not injuriously affected. * * * This qualification, moreover, was not by the courts annexed to the right to change for the protection or benefit of prior appropri- ators. It is peculiarly applicable to subsequent appropriators, and they are in a position to complain if their rights are infringed. * * * A subsequent appropriator has a vested right as against his senior, to insist upon the conditions that existed at the time he made his appropriation; and if a change of place of diversion by a senior interferes with, or changes those conditions to the prejudice of, a subsequent appropri- ator, the latter m#y justly complain." [P. 518. Handy Ditcli Co. vs. Louden Canal Co., 27 Colo., 1900. Use of water. Priority to the use of water for agricultural purposes is a right of property, and may be transferred by sale. "We grant that the water itself is the property of the public; its use, however, is subject to appropriation, and in this case it is conceded that the owner has the paramount right to such use. In our opinion this right may be transferred by sale so long as the rights of others, as in this case, are not injuriously affected thereby. If the priority to the use of water for agri- cultural purposes is a right of property, then the right 209 to sell it is as essential and sacred as the right to possess and use." [P. 70. Strickler vs. Colo. Springs, 16 Colo., 1891. Use of water. User of water License. A user of water for irrigation after same has been used for placer purposes, before it returns to stream, is a mere licensee as against placer appropriator (while this action appears to have been acquiesced in by the then owners, there is evidence to the effect that parties so taking water should never assert a legal claim or right thereto, nor should his use of water interfere with the use of the placer), and acquires no right such as would sustain an injunction for pollution against such placer appropriator. [P. 125. Fairplay Hydraulic & Mfg. Co. vs. Weston, 29 Colo., 1901. Use of water. Use of surface drainage on adjoining tracts of land Appropriator may make further use before it escapes his control. "After defendants' appropriation has done duty to their own land, they can not, even by grant, confer upon plaintiff the right to use it, or any of it, as against the superior claims of other appropriations from the same stream. By mere acquiescence on their part, to plaintiff's use, after waste water has passed from their lands, they have not estopped themselves thereafter to intercept and make beneficial use of it before it escapes from their control." [P. 190. Burkart vs. Meiberg, 37 Colo., 1906. Use of water. Change in place of storage analogous to change in place of use, as far as rights of appropriators are concerned. "Change of place of storage or use of water appro- priated for irrigation from one reservoir to another, so far as rights of appropriators are concerned, is an- alogous to a change of place of use from one tract of land to another." [P. 730. Windsor Res. & Canal Co. vs. Lake Supply D. Co., 98 Pac., 1908. Use of water. Priority for direct irrigation cannot be changed to that of storage. "Appellants seek to convert their appropriation for immediate irrigation into one for storage purposes. 210 and to get for the latter a priority which belongs to them only for the former purpose." [P. 174. Finley vs. New Cache la Poudre Irr. Co., 98 Pac. 1908. Use of water. Eight of town or city to take water for do- mestic use is not superior to the extent it may be taken with- out compensation from a farming community or individual who has appropriated it for a similar or other use. 6525 Kev. Stats., p. 1511, 13, subd. 73. "Mills' Annotated Statutes, 4403, subd. 73, p. 2295, authorizing a town to take water from any stream or spring for domestic purposes, and providing that, when the taking shall interfere with the vested rights of any person, the town shall first obtain his consent, or acquire the right by condemnation, does not give the town a right to divert water for the use of its inhabit- ants superior to the rights of an individual or a farm- ing community to divert water for domestic or other purposes, in the sense that the town may take the wa- ter for that purpose from those who have previously ap- propriated it for the same or other beneficial use with- out compensation." [P. 339. Town of Sterling vs. Pawnee D. Ext. Co., 94 Pac., 1908. Use of water. Domestic use incident to riparian ownership can not be sold separate from land. "The preference right to use water for domestic purposes incident to riparian ownership can not be con- veyed separate and apart from the land, nor diverted from such use by a company through a pipe line." [P. 541. Broadmoor Dairy & Live Stock Co. vs. Brook- . side Water & Imp. Co., 24 Colo., 1898. Use of water. Appropriation upon a larger acreage does not presumptively establish an enlarged use of such water. * * * rpjj e mere f ac { that it is the intention of appellee to apply the water, diverted from its original headgate into the new headgate and new ditch, upon a larger acreage does not even presumptively establish that more water, measured in time or quantity, will be used than was diverted through the original headgate, nor will it presumptively establish injury to the vested rights of others." [P. 591. Fulton M. D. Co. vs. Meadow Island D. Co., 35 Colo., 1906. 211 Duties of owners. Must not allow water- to escape to dam age of other property 3233 Rev. Stats., p. 872, 69; 2274 Mills' Ann. Stats., p. 1386; 3238 Rev. Stats., p. 873, 74; 2282 Mills' Ann. Stats., p. 1388. The above sections of the statute, prop- erly construed, impose upon the owners a duty, and that 'every ditch company is required to keep their ditch in such good repair and condition that the water of the same can not readily and easily escape there-* from to the injury of any property; and especially such owners must not allow or permit the water to escape therefrom to the damage of other property.' " [P. 553. Greeley Irrigation Co. vs. House, 14 Colo., 1890. Duties of owners. Police power of city does not extend to compelling ditch owner to flume in order to prevent injury to property along ditch line. It is not within the police power of a city to com- pel ditch owner, who has a vested right to its use and enjoyment, to confine and reconstruct said ditch by box- ing and fluming for purpose of preventing the wash- ing and cutting away of property situate along ditch line, and belonging to other parties, within corporate limits of city. [P. 184. Platte & Denver C. & M. Co. vs. Lee, 2 Colo. Appeals, 1892. Duties of owners. Duty to keep in repair. "Where a ditch is enlarged and extended by a new and different set of proprietors, ttye duty of keeping in repair the headgate and ditch to its original terminus is upon both sets of owners, the expense to be adjusted upon an equitable basis; but beyond this the first set of owners have not interest and no duty." [P. 511. Patterson vs. Brown & Chapman, 3 Colo. Ap- peals, 1893. Duties of owners. Duty of ditch owners to furnish head- gates at expense of consumers, under 3255 Rev. Stats., p. 876, 91; Mills' Ann. Stats., 2288, p. 1389. "It is readily seen from this section that it is the duty of the ditch company to furnish headgates for those having a right to use the water. The statute au- thorized the regulation of the distribution of water, but it does not authorize a company to arbitrarily re- fuse to deliver water at all * * *." [P. 392. Downey vs. Twin Lakes L. & W. Co., 41 Colo., 1907. 212 Duties of .owners. 5829 Rev. Stats., page 1372, 43; 3962 Mills' Ann. Stats., p. 2086, applies only where ditch crosses high- way. "The statute * * * says that ditch companies * * * must keep highways open for safe and conve- nient travel; it requires this to be done only by con- structing bridges. The provision of the statute only becomes applicable where a ditch crosses a highway, or at least encroaches so much upon it as to interfere with travel. It was never intended to cover cases like this, where the ditch and the roadway are parallel for a thousand feet. * * * Moreover, the statute applies only to ditches constructed after its passage." [P. 29. Highline Canal Co. vs. Westlake, 23 Colo., 1896. Duties of owners. The act of 1887, entitled, "An Act Regu- lating the Distribution of Water, Etc.," Rev. Stats., 3255-6-7-8, p. 876, 91-2-3-4 Declared to be within police power of the state. "Although it is difficult to define the boundaries of the police power of the state, such regulations as those prescribed by the statute under consideration are by the decisions of the highest courts declared to be within such power." [P. 197. White vs. Highline Canal Co., 22 Colo., 1896. Rate of charge for water under constitution of state of Colorado and Rev. Stats., 1908, 3262-3275, p. 877. Defining power of county commissioners to fix rates of charge for water, under 8, Art. XVI, of the constitution. * * * Under the constitution they (county commissioners) cannot be vested with authority to es- tablish the exact rate to be charged, or to specify either the time or conditions of payment. The commis- sioners may be empowered to fix the maximum amount of the rate; that is, they may be authorized to announce a limit beyond which the carrier cannot go." [P. 593. Wheeler vs. Northern Colo. I. Co., 10 Colo., 1887. Rate of charge for water. 3262 Rev. Stats. 1908, p. 877, 98; 2295 Mills' Ann. Stats., p. 1391 Regulating charges Constitu- tional. "No fault is claimed from a constitutional point of view with the substance of this legislation; none could be found with its purpose. The specific grounds of ob- jection are, that the title of the act contains more than one subject, and that the matter of fixing maximum rates is not clearly referred to therein." [P. 147. 213 "The requirement that the subject 'shall be clearly expressed in the title,' is sufficiently complied with." "It is enough if the bill treats of but one general subject, and that subject is expressed in the title." [P. 149. Golden Canal Co. vs. Bright, 8 Colo., 1884. Rate of charge for water. Limitation upon power of county commissioners to fix rate 3265 Kev. Stats., 1908, p. 879, 101; 2298, Mills' Ann. Stats., p. 1394 "Seasonable compensation" im- plies that something must be given for the service Rate afford- ing no profit to ditch owner may be enjoined. "While the legislature attempted to confer upon the county commissioners the power to fix a reasonable max- imum rate of compensation for water to be delivered from irrigating ditches, this does not give to them the authority to confiscate the property of the ditch owner; neither does it give them the authority to compel the ditch owner to carrv the water without compensation. * * *." [P. 175. ' * If there is no compensation to the ditch owner at all, there can scarcely be said to be a reasonable compensation. The very term 'reasonable compensation 7 implies that something must be given for the service." [P. 172. "Where the rate fixed by the board of county com- missioners for the use of water is such that the owner of the ditch can make no profit therefrom, its enforcement may properly be enjoined, * * *." [P. 167. The Board of County Commissioners of Monte- zuma County vs. The Montezuma Water and Land Co., 39 Colo., 1907.' Rate of charge for water. No appeal from rate fixed by board of county commissioners. "The irrigation law itself makes no provision for an appeal from the decision of the board of county commis- sioners fixing the rates to be charged and paid for wa- ter." IP. 152. Golden Canal Co. vs. Bright, 8 Colo., 1884. For injunctive relief see : Board of County Commissioners of Montezuma County vs. Montezuma Water and Land Co., 39 Colo., p. 167. Rate of charge for water. Under 3264 Rev. Stats. 1908, p. 878, 100 ; 2297 Mills' Ann. Stats., p. 1393, purchaser's right not limited by fact that he can procure water from another source. 214 "By this statute the subject is governed; its provi- sions specify the conditions upon which the right con- ferred is to be exercised ; but it makes no exception where the consumer mentioned can procure the water from some other source; and we must presume that the legislature intended to confer the privilege specified unlimited by any such qualifications." [P. 151. Golden Canal Co. vs. Bright, 8 Colo., 1884. Rate of charge for water. Under 3264 Eev. Stats. 1908, p. 878, 100 ; 2297 Mills' Ann. Stats., p. 1393 Prior purchaser does not have to acknowledge equity of all rules of carrier as a condi- tion precedent to exercise right conferred by this statute. "Section 1740 of the general statutes confers an af- firmative right upon the prior purchaser, who has com- plied with the provisions thereof, to continue his pur- chase of water, and he cannot be required, as a condition precedent to the exercise of this right, to acknowledge the equity of all the rules adopted by the ditch owner ; to say that he could, would be, in a measure, to place him at the mercy of such proprietor, for he could thus be coerced into compliance with the most oppressive and unjust reg- ulation." [P. 149. Golden Canal Co. vs. Bright, 8 Colo., 1884. Rate of charge for water. Under 3264 Kev. Stats., p. 878, sec. 100; Mills' Ann. Stats., p. 1393, a duty is imposed upon carrier to sell. "A specific right is conferred upon relator (user) by the same provision, in our judgment, a corresponding duty is imposed upon respondent (ditch-owner)." [P. 152. ," Golden Canal Co. vs. Bright, 8 Colo., 1884. Kates of charge for water. Under 3264 Rev. Stats., 1908, p. 878, sec. 100, does not repeal sec. 311 Gen. Stats. (992 Rev. Stats. 1908, p. 398, sec. 148) . It is simply an assurance of the right to continue, under specified circumstances, a use already exercised. "It (1740 Gen. Stats.) does not operate to repeal section 311 of the General Statutes (992 Rev. Stats., p. 398, sec. 148) ; this section expressly commands ditch companies, having water in their canals not taken, to furnish the same to the class of persons using it, in the manner named by the articles of incorporation, upon payment of the established rate; the declaration therein that this rate shall be fixed by the county commissioners must be taken with the constitutional condition attached, viz. : 'Where application is made to them by either party 215 interested.' * * * Section 1740 does not give him the right to water, even when the maximum rate has been fixed by the commissioners." "(1740 Gen. Stats.) is simply an assurance of the right to continue, under specified circumstances, a use already exercised." [P. 595. Wheeler vs. Northern Colo. I. Co., 10 Colo., 1887. Rate of charge for water. Act of 1887, entitled, An Act to Define, Prohibit, Punish and Restrain Extortion and Other Abuses in the Management of Ditches, Canals and Reservoirs; 3271-2-3-4-5, Rev. S'tats., p. 800-1; in no way impairs rights of consumers under sec. 1740, Gen. Stats., 1883; sec. 3264, Rev. Stats., p. 878. "The statute of 1887 is entitled, 'An Act to Define, Prohibit, Punish and Restrain Extortion and Other Abuses in the Management of Ditches, Canals and Res- ervoirs.' It is purely penal and makes it an offense punishable by fine and imprisonment for any person or corporation to demand or accept any royalty, bonus or premium as a condition precedent to the right to pro- cure water. It declares such exactions illegal, but in no way impairs the rights of consumers as they existed prior, or that accrue subsequent, thereto, under section 1740, Gen. Stats., 1883." [P. 456. Northern Colo. Irr. Co. vs Richards, 22 Colo., 1896. Rate of charge for water. Under 3263 Rev. Stats. 1908, p. 878, section 99 ; 2296 Mills' Ann. Stats., p. 1392, parties who have never been consumers may petition for the establishment of a rate." "The statute permits parties having land under carrier's canal, who have never previously been con- sumers therefrom, to petition for the establishment of a maximum water rate, ,and take advantage thereof, if the carrier's diversion be not exhausted." [P. 309. S. B. & R. C. D. Co. vs. Marfell, 15 Colo., 1890. . Rate of charge for water. Refusal of carrier to sell upon tender of rate Measure of damages. "We think that upon the facts as they appear in evidence the proper criterion by which to judge of plain- tiff's damage under the second cause of action is the dif- ference between the amount realized from the crops the land did produce, and the amount that would have been realized therefrom has the water been furnished, less 216 the added cost of raising, harvesting and marketing the product ; the loss of trees and the loss of the use of that portion of the 120 acres which plaintiff was prevented from cultivating." [P. 461. Northern Colo. Irr. Co. vs. Richards, 22 Colo., 1896. Rate of charge for water. Proviso of act under 3263 Rev. S-tats. 1908, p. 878, sec. 99 ; 2296 Mills' Ann. Stats., p. 1392, does not contemplate mere options, but relates to definite, existing and valid contracts. "Our view is that the legislative proviso in question and that of the commissioners as well, relate to existing, definite and valid contracts binding upon both parties. They do not contemplate mere options, such as the one before us * * *." [P. 308. S. B. & R. C. D. Co. vs. Marfell, 15 Colo., 1890. Kate of charge for water, 3273 Rev. Stats. 1908, p. 881, sec. 109 ; 2306 Mills' Ann. Stats., p. 1397. Penalty for refusal to deliver water. Prosecution under. "* * * An information which charges the of- fense in the language of the statute is insufficient. It is necessary that the information should show that the applicant for the water is of the class of persons entitled to demand of and receive from the ditch owner the water upon compliance by him with the terms of the statute, and it must designate the land for which the water was demanded as being so situate that it is the duty of the ditch to furnish water for its irrigation, and so that the ditch owner might ascertain its location and deliver the water." [P. 493. Schneider vs. People, 30 Colo., 1903. Rate of charge for water. Assessment Failure to pay- Sale of stock. See Grand Junction Irr. Co. vs. Fruita Imp. Co. [P. 483. 37 Colo., 1906. Adjudication of priorities. Statutes adjudicating priorities Nature of police regulations Authority of legislature to enact statute. "Acts of 1879 and 1881 are in the nature of police regulations to secure the ordinary distribution of water for irrigation purposes, and to this end they provide a system of procedure for determining the priority of rights as between carriers." [P. 134. "The authority of the general assembly to enact laws regulating the distribution of water to actual appro- priators, provided they do not substantially affect consli tutional or vested rights, is undoubted." [P. 137. F. H. L. C. & Res. Co. vs. Southworth, 13 Colo., 1889. Adjudication of priorities. Statutory proceeding is in the nature of an action in rem Reason of four years statute of lim- itation. [3313 Rev. Stats., p. 892, 149. "A conclusive adjudication at a time when the prac- tical application of the proceeding was a matter of con- jecture might have been disastrous. To guard against results such as these, it is not unreasonable to suppose that the legislature would make some provision. And we think those portions of the statute relied upon by the district court to overthrow the plea of res judicata and to support its jurisdiction are clearly referable to an in- tent to provide against the conclusive character of the statutory proceeding for the period of four years, but in no way to interfere with the exclusive jurisdiction of the court first acquiring jurisdiction, or to be construed as giving permission to a party to such an adjudication to ignore the same and maintain an independent action *." [P. 113. Louden Canal Co. vs. Handy Ditch Co., 22 Colo., 1896. Adjudication of priorities. Object of irrigation statutes of 1879 and 1881 (3276-3290 Rev. Stats., omitting 3280-2 inclusive ) Does not confer new property rights Decree rendered thereun- der cannot be reopened after expiration of time limited by act for any material change. "The object of these irrigation statutes was to settle questions of the relative priorities of the claimants of water for the purposes of irrigation. The decrees ren- dered thereunder do not purport to grant any new prop- erty rights, but rather embody in a permanent form the evidence of those previously acquired ; while the statutes further provide certain regulations for the distribution by the state of the water according to the priorities thus ascertained. Yet, after the expiration of the time limited by this act, the decree cannot be reopened by a party thereto, in the absence of proof of fraud, for the purpose of reducing the quantity of water therein awarded, or for any other material change or correc- tion." [P. 361. New Mercer Ditch Co. vs. Armstrong, 21 Colo., 1895. 218 Adjudication of priorities. Who is a party under adjudica- tion proceedings. * One is a party to these proceedings who has due notice thereof, or who appears therein, or files his statement of claim ; and the fact that he does not see fit to offer proof in support thereof, or fails to have his rights adjudicated, make him as much a party to the proceedings as though he offered proofs and obtained a decree for his claimed priority." [P. 455. "It thus seems clear that one who is a party to a statutory adjudication who appears in the proceeding and files his verified statement of claim but refuses to offer proof, cannot be heard thereafter to object, unless within the statutory period of two years he applies for a re-argument or a review." [P. 454. Crippen vs. X. Y. Irr. D. Co., 32 Colo., 1904. Adjudication of priorities. Character of testimony. "An arbitrary standard by which all cases are to be determined cannot be fixed * * *. On the facts of each case must the appropriate decree rest, governed, of course, by those general rules of weighing evidence and applying legal principles common to all legal con- troversies." Ditch Co. vs. Irrigation Co., 25 Colo., 1898. Adjudication of priorities. Decree limited to actual neces- sity. "Both the law under which this decree was ren- dered and the decree itself contemplate that no claimant shall be entitled to the use of a quantity of water in excess of that actually needed for the purpose for which appropriation was made." [P. 362. New Mercer D. Co. vs. Armstrong, 21 Colo., 1895. ADJUDICATION OF PRIORITIES. Adjudication of priorities. District courts had jurisdiction to hear and determine water priorities under Sec. 11, Art. 16, of the constitution, and acts of 1879 and 1881 do not attempt to limit or extend the jurisdiction. "Sec. 11, Art. XVI, of the Constitution, clothed with 'original jurisdiction of all causes, both at law and in equity,' and, therefore, has full and complete juris- diction to hear and determine water priorities. These acts (irrigation acts of 1879 and 1881) were passed for the purpose of establishing a system of procedure whereby the appropriators of water on any particular 219 stream could have their priorities and rights determined in one proceeding; and they do not attempt to limit or extend the jurisdiction of the district court to such rights." [P. 545. Broadmoor D. Co. vs. Brookside W. I. Co., 24 Colo., 1898. Adjudication of priorities. Under 33T6 Rev. Stats. 1908, p. 882, 112; 2399 Mills' Ann. Stats., p. 1409, jurisdiction of court is exclusive. Which was the proper court in which to institute proceedings for that purpose, and * * * was the court in which proceedings had been duly begun (by order appointing referee to take testimony), and were pending when appellee instituted this proceeding (for adjudication of a water right in same district but another county), and so its (court where action was first begun) jurisdiction is exclusive." [P. 52. Presbyterian College vs. Poole, 25 Colo., 1898. Adjudication of priorities. Jurisdiction not subject to col- lateral attack. "We are of the opinion that plaintiff is not entitled * to question jurisdiction of the district court of Boulder county in this collateral proceeding." [P. 337. Handy D. Co. vs. South Side D. Co., et al., 26 Colo., 1899. Adjudication of priorities. The courts of this state have no jurisdiction to award priorities to the use of water to a ditch intended to water lands outside the state, although the ditch has its Jieadgate within the state. "The statutes under which this proceeding was in- stituted, those creating the various water districts, and our entire irrigation law, must be taken together, and, if possible, the different provisions so interpreted as to give effect to all, and make them harmonious, the one with the other. It is not to be supposed that the state was legislating for the reclamation, or irrigation, of lands beyond its boundaries, or making provisions by the way of police regulations * * over a territory beyond its jurisdiction." [P. 204. Lamson vs. Vailes, 27 Colo., 1900. Adjudication of priorities. Acts of 1879-1881 (3276 Rev. Stats., 112, to 3320, omitting 3280 to 3283) applies to irrigation purposes only. "The irrigation acts of 1879 and 1881 were intended as a system of procedure for determining the priority of rights to the use of water for irrigation between owners of ditches, canals and reservoirs taking water from the same natural stream. The proceedings under said acts are purely statutory and cannot be resorted to for the purposes of determining the claims of parties to the use of water for domestic or other purposes not fairly included within the meaning of the term 'irriga- tion.' * * * Q ur legislators used the term 'irrigation' in the acts under consideration according to the com- mon parlance of our people in its special sense as de- noting the application of water to lands for the raising of agricultural crops and other products of the soil." [P. 529. Platte W. Co. vs. Northern Colo. I. Co., 12 Colo., 1889. Adjudication of priorities. Was publication of 3277 Rev. Stats, necessary as condition precedent to vest jurisdiction in district courts adjudicating priorities when notice undei* 3286 Kev. Stats, had been given and parties thereafter filed statement of claim? Held: Court had jurisdiction of both parties and subject matter. "The evident purpose of the provision of 2 in re- gard to publication of 1 was to advise parties of its enactment, that they might protect their rights to the use of water by filing statement of claim as therein provided; but nothing therein indicates that a failure to file such statement should in any way prejudice their rights or preclude them from thereafter filing the same* in any proceeding that might be instituted under 4 of the act. It is specially provided in 6 that notice shall be given to all parties interested as owners in any ditch of the time appointed for any hearing to appear in court or before the referee, at the time so appointed and file a statement under oath in case no statement had there- tofore been filed." [P. 545. Broadmoor D. & L. S. Co. vs. Brookside Water and Improvement Co., 24 Colo., 1898. Adjudication of priorities. District court having obtained jurisdiction, such jurisdiction is exclusive and cannot be re- viewed by another district court under Code action. "Where a district court properly obtains jurisdic- tion and proceeds under the statute to adjudicate the 221 priorities of water rights in a water district and enters a decree awarding priorities, its jurisdiction is exclu- sive, and as between parties to such decree another district court has no jurisdiction in an ordinary civil action to review such decree or to pass upon questions of priority to the use of water between the parties thereto * * *." [P. 521. Ditch & Res. Co. vs. Irr. & Land Co., 27 Colo., 1900. Adjudication of priorities. Jurisdiction of courts under 3276 Rev. Stats., p. 882, 112. Acts of 1879 and 1881 Statutory proceedings to regulate priorities is not an ordinary civil action; it is a proceeding sui generis. The acts provide for a separate adjudication for each irrigation district. "In an ordinary civil action or proceeding where the jurisdiction of a superior court of record has at- tached, it will not be divested by the mere passage of a legislative act changing district or county bound- aries. But the statutory proceeding to adjudicate priorities of right to the use of water, under the ir- rigation acts of 1879 and 1881, is not an ordinary civil action or proceeding; it is a proceeding sui generis, to which the rules governing ordinary civil actions are not always applicable." [P. 598. "The irrigation acts provide for a separate adjudi- cation of priorities for each irrigation district, but not for the settling of priorities beyond the limits of the district. Act of 1879, 16-19; act of 1881, 4, 9." [P. 599. Irrigation Co. vs. Downer, 19 Colo., 1894. Adjudication of priorities. Modification of decree for error of referee as to w r eight of testimony. "In an adjudication by a referee, under statute as to priority of water rights, the decree may be 'modified for error of the referee in his judgment upon the weight of testimony." [P. 79. Dorr vs. Hammond, 7 Colo., 1883. Adjudication of priorities. Capacity not determining ele- ment in adjudicating priorities.' "The capacity of the several ditches enumerated in the decree to convey water seems to have been the criterion by which the court was governed." "A di- version unaccompanied by an application gives no right. This principle applied to the record in this case is fatal to the decree rendered by the district court." [P. 3. Ft. Morgan Land & Canal Co. vs. Ditch Co., 18 Colo., 1892. Adjudication of priorities.- Question of exchange of water cannot be determined in adjudication proceedings for storage purposes Error to grant two reservoir priorities to same re- servoir as result of same construction. "Question of exchange of water between the same or different owners of reservoirs can not be determined in a statutory action to establish relative priorities of right to store water in reservoir within the district." "It was error to grant two separate reservoir pri- orities of the same capacity and date to same reservoir as the result of the same construction and act of stor- ing." [P. 730. Windsor Res. & C. Co. vs. Lake Supply D. Co., 98 Pac., 1908. Adjudication of priorities. One filling of reservoir each sea- son 3284 Rev. Stats., p. 884, 120; 2403 Mills' Ann. Stats.; 3290 Rev. Stats., p. 886, 126; 2408 Mills' Ann. Stats. Capacity under. "A senior reservoir is entitled to but one filling during the same season on the sanae priority before junior reservoirs are filled once." "The term 'capacity' in Mills' Ann. Stats., 2403 * * * means not amount of water needed by the reservoir to irrigate lands of the owner, but the amount the reservoir will hold when filled once." [P. 730. Windsor Res. & C. Co. vs. Lake Supply D. Co., 98 Pac., 1908. Adjudication of priorities. Prior vested rights can not be enlarged or changed to injury of junior appropriators. "An appropriator of water from a stream already partly appopriated acquires a right to the surplus or residuum he appropriates, and those in whom prior rights in the same stream . are vested, cannot extend or enlarge their use of water to his prejudice, but are limited to their rights as they existed when he acquired his * * *, because in such case, each with respect to his particular appropriation is prior in time and ex- clusive in right." [P. 49. u* * * if the evidence established that no ap- propriation had been made by the irrigation company for the express purpose of storage, which antedated the priority of plaintiff, then, although the right of the irrigation company under the decree, to divert water for the purpose of irrigation, may have been prior to that of plaintiff, and by that decree its right for that purpose conclusively settled, it could not thereby ex- ercise that right to the detriment of the latter by an enlarged or another use, measured by either volume or time, which would result in depriving plaintiff of its appropriation under that decree." [P. 51. Mill. & E. Co. vs. Irrigation Co., 26 Colo., 1899. Adjudication of priorities. Decree not absolute verity Does not protect claimant from abandonment. "So that this decree as to a claimant thereunder no more than does a deed of conveyance to a grantee from one unquestionably the owner affords no pro- tection as to the waters thus diverted, if they are not within a reasonable time applied to a beneficial use. Nor does the decree, being, as is a deed, merely one kind of evidence of a right to the thing owned, pos- sess such verity as to protect a claimant thereof against the consequences of an abandonment, applic- able as well to this class of property obtained by ap- propriation as to other kinds of property acquired by grant." "The law of the case, independent of the decree, is to this effect, and would be read into the decree by this court." [P. 366. New Mercer Ditch Co. vs. Armstrong. Adjudication of priorities. Authority of district court to give to any ditch a fixed carrying capacity before application to a beneficial use. "There may be some uncertainty as to whether, under our irrigation statutes, the district court in mak- ing these decrees had the authority to give to any ditch any fixed carrying capacity before ,the water was ac- tually applied to a beneficial use; but there scarcely can be any serious contention that the court had authority to give any definite decree in favor of a ditch not then completed, and, if such decrees were to be entered now, it is probable that the courts would require not only that the ditch be completed, but the water through 224 ' it be actually applied to a beneficial use, before award- ing to it any priority." [P. 351. Water Co. vs/Termey, 24 Colo., 1897. Adjudication of priorities. Authority to vacate decree pend- ing determination of the review, under 3318 Rev. Stats., p. 893, 154; 2425 Mills' Ann. Stats., p. 1420. "On an application under section 2425, Mills' Ann. Stats., for review of a decree adjudicating water rights, the court has authority to vacate the decree pending the determination of the review 7 . And where an order vacating the decree was entered and the application for review was afterwards dismissed, the court should have re-entered the original decree." [P. 258. Peterson vs. Durkee, 15 Colo. Appeals, 1900. Adjudication of priorities. Statutory proceeding adjudicat- ing priority rights does not authorize inquiry into relative rights of .co-claimants in same ditch. "The statute invests the court with jurisdiction to establish the rank of the several ditches with relation to each other, based upon the different dates of ap- propriation of water, the quantity appropriated, and the means employed to utilize it; and to award to each the priority to which it may be entitled; but it does not authorize inquiry into the relative rights of co- claimants in the same ditch, or any adjustment of their disputes among themselves." [P. 441. Putnam vs. Curtis, 7 Colo. Appeals, 1896. Adjudication of priorities. 3313 Rev. Stats., p. 892, 149; 2434 Mills' Ann. Stats., p. 1422; 3314 Rev. Stats., p. 892, 150; 2435 Mills' Ann. Stats., p. 1423, applies to different appropria- tors taking water from same stream in different districts. "Ample provision is made for protection of the rights of parties in the same district, but none of the provisions relating to this class relate to appropriators in different districts, as between each other For this purpose sections 2434 and 2435 were enacted. Thereby opportunity was afforded to adjust such rights by an independent action, but wisely the period within which such action could be commenced was prescribed ; otherwise, rights as between appropriators of water in different districts where rights have been adjudi- cated, under the statutory proceedings, would remain unsettled indefinitely." [P. 338. Ft. Lyon C. Co. vs. Ark. V. S. B. & I. L. Co., 39 Colo., 1907. Adjudication of priorities. A decree embraces rights of both consumers and carriers and operates as an estoppel upon con- sumers in establishing their separate rights "The decree embodies the rights, not only of car- rier, whatever they may be, but also the rights of its consumers. By the former decree it is determined that the priority of defendant company is superior to that of (plaintiff) and that decree is binding not only upon both of those companies as carriers, but upon con- sumers of water under their ditches." [P. 431. Combs vs. Farmers H. L. .0. & R. Co., 38 Colo., 1906. Adjudication of priorities. An action requesting modifica- tion of decree not proper action for the purpose of determining re- spective rights of parties therein. "The rights, if any, which plaintiff here asserts, must be determined in an appropriate action brought for that purpose, and not in a proceeding to amend or modify a former decree that in no way affects their sep- arate and individual interests in priorities expressly decreed to the ditches as such." [P. 95. Evans vs. Swan, 38 Colo., 1906. Adjudication of priorities. Court has pow T er of determining date of priority of uncompleted canal. "We have decided that in these special proceedings the court is without authority to award to a ditch or canal in advance of its completion any definite quan- tity of water. (Water Co. vs. Tenney, 24 Colo., 344, 352.) But we have not decided that it is wrong for the court to fix the date of the priority of a canal begun, but not completed, at the time the decree is rendered. This is precisely what w r as done under the decrees we are .considering; and we see no objection to it from a jurisdictional standpoint." [P. 277. Waterman vs. Hughes, 33 Colo., 1905. Adjudication of priorities. Priorities and rights established by Mills' Ann, Stats., 2264, Session Laws 1881 (map and state- ment law), are protected. Future rights and those undergoing adjudication, how determined. "Rights, if any, which have become vested; priori- ties, if any, which have been established by decree of court upon the basis of this act and by the lapse of time cannot be reviewed, are certainly protected." [P. 377. 220 "Other rights, if any, which have been settled by judicial decree, but not so as to be beyond the reach of review, or such as are now in process of adjudica- tion, will be determined in accordance with the law as it is and always has been, and not as this invalid act prescribes." [P. 377. " * * * We have deemed it best, in the con- flict of the testimony and the uncertainty that necessar- ily must be present when it is considered that the court below in establishing and fixing the dates of the pri- orities proceeded upon an improper basis, not to at- tempt a reformation of the decree, but rather to remand the proceeding w r ith instructions to the district court to vacate the decree * * * and to proceed either upon the testimony now before it * * * or to take additional evidence and upon all of the evidence to make findings and enter a decree * * *." [P. 37$. Larimer Canal Co. vs. Amity D. & I. Co., 26 Colo., 1899. Adjudication of priorities. Erroneous decrees not subject to collateral attack. "We base our opinion upon the ground that the de- cree of 1889 and the amendment of 1890 were not void, but erroneous merely, and are not subject to collateral attack." [P. 518. Lake Fork D. vs. Haley, 28 Colo., 1901. Adjudication of priorities. Decree for agricultural purposes does not include right of storage of same date in reservoir not constructed. "A decree fixing priority of right of a ditch to the use of water for agricultural purposes does not give to it the priority of right to store water in reservoirs which thereafter it might build, as of the date be- longing to ditch. [P. 529. Irr. & Land Co. vs. Ditch & Kes. Co., 27 Colo., 1900. Adjudication of priorities. Mills' Ann. Stats., 2270, 2403, 2408, 2453, 2456, and Rev. Stats., 3202, 3277, 3290, 3349 and 3351, provide for decrees for storage purposes independent of decrees for direct irrigation. "While the statutes of this state contemplate that one may, by complying with their provisions, acquire and have decreed to him a priority of right for storing water in reservoirs, it is also clearly their design that this right shall not be dependent upon, or measured by, a right which he may have to a decree for his ditch of a priority for diverting water for immediate irriga- tion, though the ditch may., in addition to being used as a vehicle for carrying water for immediate use, be also utilized at some time as a feeder for the reservoir. 1 'Mills' Ann. Stat, 2270, 2403, 2408, 2453, 2456." [P. 531. Irr. & Land Co. vs. Ditch & Res. Co., 27 Colo., 1900. Adjudication of priorities. Conditional decree vests inchoate right. "Where a prior decree awarding water rights al- lowed an appropriation of 425 cubic feet proportion- ately as the parties increased their irrigable land, and provided that such increase and the uses of the propor- tionate additional amount of water appropriated there- for should be made with reasonable diligence, such de- cree only vested in the appropriators an inchoate right to the water contained in such appropriation which could become fixed only on their applying same to a beneficial use within a reasonable time." [P. 304. Conley vs. Dyer, 95 Pac., 1908. Adjudication of priorities. Priorities attach to ditch No attempt is made to designate owners of priorities The quantity awarded a ditch is res judicata as far as rights of junior ap- propriators who were parties to the proceeding are concerned. "It is to be observed that, under these adjudica- tions awarding priorities, the decreed priority attaches to the ditch, and a certain quantity of water is decreed to it, and no attempt is made to designate the person or persons who are the owners of the priority, or what proportion belongs to each; and, indeed, the statute contains no warrant for determining the ownership of the ditch or the relative rights of the water consumers thereunder. In so far as concerns the rights of junior appropriators who were parties to the proceeding, the quantity of water awarded to a ditch is res adjudicata." [P. 150. Irrigation C. vs. Reservoir Co., 25 Colo., 1898. Adjudication of priorities. Decrees rendered under acts of 1879 and 1881 (3276 to 3320 Rev. Stats., omitting 3280 to 3283 inclusive) not res judicata as to parties. * * * That decrees rendered under acts of 1879 and 1881, determining the priorities and the amount of the appropriations of the several ditches in an irriga- ting district, are not intended to designate the person or persons entitled to the use of the water thus appro- priated. Such decree is not res judicata as to the party or parties entitled to the control of a particular ditch or to the use of the water conveyed through the same, but only as to the priority and amount of appro- priation of such ditch." [P. 147. Oppenlander vs. Left Hand D. Co., 18 Colo., 1892. Adjudication of priorities. Capacity res judicata after right of review and appeal have elapsed, even though mistake in com- puting capacity was made by court. * * * rp ne p resen t action is not for the purpose of reforming the decree upon ground of mistake or fraud * * * it is in the nature of a collateral attack upon the decree after the statutory time for their reformation or review in the court of original jurisdiction * * * has long gone by, and when right of appeal is also lost by lapse of time. "If a mistake was made by the court in computing the capacity of the ditch, such a mistake cannot be cor- rected in this proceeding. The capacity is res judicata * * *" [P. 329. Water Supply & Storage Co. vs. Larimer & Weld Irrigation Co., 24 Colo., 1897. Adjudication of priorities. Evidence, etc., taken before ref- eree in adjudication proceeding is admissible in determining respective rights of owners in action brought for that purpose. "Though, on adjudicating water rights in a water district, a court could not determine the amount of the appropriation of each individual and could only fix the amount to which the respective ditches were entitled, evidence, etc., taken before referee and relating to a par- ticular ditch, is admissible in an action to determine the respective rights of the owners of the ditch; the appro- priation to the ditch in the first proceeding being pre- sumably based upon the amount applied by the owners to a beneficial use, and the rights of the parties being de- terminable, not according to the ownership in the ditch, but according to the amount of water which they respec- tively used when the decree was rendered in the first proceeding." [P. 932. Woods vs. Sargent, 95 Pac., 1908. 229 Adjudication of priorities. Questions to be determined un- der 3315 Rev. Stats., p. 892, 151; Mills' Ann. Stats. 2423, p. 1419 Court may make rules Act liberally construed. See Windsor Res. & Canal Co. vs. Lake Supply Co., 98 Pacific, 1908. Adjudication of priorities. Duty of supreme court on appeal to examine entire record where cases are tried upon proofs taken and reported by referee. "The case was tried in the district court mainly upon proofs taken and reported by a master or referee; it is, therefore, our duty to sift and weigh all the evi- dence with a view to a just determination, uninfluenced by the proposition that the court below had superior facilities to judge of the credibility of witnesses." Mil- ler et al. vs. Taylor et al., 6 Col., 45." [P. 152. Sieber et al. vs. Frink et al., 7 Colo., 1883. Adjudication of priorities. Under 2432 Mills' Ann. Stats., p. 1422; 3309 Rev. Stats., p. 891, 145, time to file proof cannot be extended beyond limit prescribed by the statute. "We cannot grant the extension. The provision as to time is mandatory. Needle Rock D. Co. vs. Crawford- Clipper D. Co., ante, p. 209. While the mere failure of appellant to file the proof within sixty days after the order of allowance is made, does not ipso facto work a dismissal of the appeal, yet if appellees should inter- pose a motion to dismiss after such default and before such proof is filed, this court would be obliged to grant it." [P. 501. Baer Bros. L. & C. Co. vs. Wilson, 32 Colo., 1904. Adjudication of priorities. Statute of limitation (3313 Rev. Stats., p. 892, 149 and 150) does not apply to decree obtained by fraud. "To hold that a decree obtained by fraud could not be attacked and set aside, provided the party perpetrat- ing the fraud could succeed in concealing his fraudu- lent conduct for the period of four years, would be to furnish unprincipled people with a sword to be wielded in the destruction of the property rights of others, and offer a premium to knavery. These statutes which are to be construed together were never intended to have the construction indicated." [P. 224. Ditch Co. vs. Ditch Co., 19 Colo., 1893, Adjudication of priorities. Statute of limitation 26 of the act of 1881 (3313 Rev. Stats., p. 892, 149) does not apply to 230 original proceeding by party who has never had his day in court, and his prior rights are not affected by lapse of time where such rights are not denied or abridged by enforcement of decree rendered in such proceedings. " * * * Section 26 of the act of 1881 * * * limits the review or re-argument of such decrees to the period of two years from their entry; section 35, also, provides that after the lapse of four years from such entry all parties whose interests are thereby affected shall be deemed to have acquiesced in the same, etc. But these sections do not apply to an original proceed- ing for an adjudication of priorities by a party who has never had his day in court. * * * T ne p r i or rights of a party not served w 7 ith process or notice in proceedings to adjudicate priorities cannot be held to be affected by the lapse of time, so long as such rights are not actually denied, abridged, or interfered with, by the enforcement of the decree entered in such pro- ceedings." [P. 27. Nichols vs. Mclntosh, 19 Colo., 1893. Adjudication of priorities. Two year statute of limitations applies only to final and absolute decrees. Mills' Ann. Stats., 2425, p. 1420; 3318 Rev. Stats., p. 893, 154. "The two years statute of limitations does not apply to a conditional decree wherein date of priority only has been determined. * * * It may be invoked only to an attempt to review a final and absolute decree." [P. 277. Waterman vs. Hughes, 33 Colo., 1905. Adjudication of priorities. 3313 Rev. Stats. 1908, p. 892, 149; Mills' Ann. Stats. 2434, p. 1422, requiring suits to be brought in four years Applies to actions by one not a party to an original proceeding. "By 2421 of the act (3317 Rev. Stats., p. 892, 153) opportunity is given for hearing by any person on ap- plication, who has failed or refused to offer evidence before the referee." [P. 235. "By 2425 (3318 Rev. Stats., p. 892, 154) an ap- portunity for reargument and review of the decree ren- dered in the statutory proceedings, with or without ad- ditional evidence, is afforded parties aggrieved at any time within two years from the time of entering the decree." [P. 236. 231 . "2427 (3307 Rev. Stats., 143) provides for an ap- l>eal from the decree by any party feeling aggrieved thereby." [P. 236. "We think, in view of the ample opportunities thus afforded the parties to the proceeding for a re- hearing and review, that 2434 (3313 Rev. Stats., p. 892, 149) had in contemplation an action by a person, asso- ciation or corporation that was not a party to the prior proceeding, or if a party thereto, whose right of action grows out of matters arising subsequent to the de- cree." [P. 236. Canal Co. vs. Loutsenhizer D. Co., 23 Colo., 1896. Adjudication of priorities. Modification of a general decree warranted under 3313 Rev. Stats., p. 892, 149; 2434 Mills' Ann. Stats., p. 1A22 Limitations. Question : Whether, in a proceeding against two ditches or individuals, an adjudication could .be had modifying the general decree regulating the distribution of water in the entire district. "We are of the opinion that this action is war-, ranted by 1796 Gen. Stats., page 583 (Rev. Stats., p. 892, 149) when, * * * N O interests are involved or affected, save those of persons who are parties to the adjudication." [P. 309. Greer vs. Heiser, 16 Colo., 1892. Adjudication of priorities. Appeals Method of taking reg- ulated by 3307 Rev. Stats., p. 890, 143; Mills' Ann. Stats. 2427, p. 1420, but not by the Code. "The method of taking appeals of this character is regulated by 2427 Mills' Ann. Stats. By this section obtaining an order allowing an appeal is an ex parte proceeding. On presentation of a statement by those desiring an appeal * * an order is made out allow- ing it and fixing amount of appeal bond. * * * A recital in the order on the referee's report, that they were given ninety days in which to perfect their appeal, was without any effect." [P. 60. Daum vs. Conley, 27 Colo., 1899. Adjudication of priorities. Appeals Time within which an appeal must be prosecuted, under 2427 Mills' Ann. Stats; 3307 Rev. Stats., 1908, p. 890, 143 Time of filing of transcript with clerk of Supreme Court, under Mills' Ann. Stats. 2429, p. 1421; 3310 Rev. Stats., p. 891, 146 Verification of statement of appeal under 2427 Mills' Ann. Stats., p. 1420 ; 3307 Rev. Stats. Appli- v 232 cation for review under Mills' Ann. Stats. 2425, p. 1420; 3318 Rev. Stats., p. 893, 154, does not waive right of appeal. "2427 * * * is silent on that question, but im- pliedly it must be limited to some period with respect to the date of the decree, either by some other provision of the statute, or to a reasonable time after that date." "The period within which appellants were required to lodge their transcript of record with the clerk of this court would begin with the date their appeal was granted." [P. 60. "2427 ) * * * does not direct by whom the state- ment of appeal shall be verified. It merely says it shall be. * * * A pleading should be verified by the party presenting it, but this rule is not inflexible, for the veri- fication of another may be substituted when good cause is shown therefor." "Appellants, by availing themselves of the provisions of 2425, Mills' Ann. Stats., in applying for a rehearing and review of the decree, have not waived their right to an appeal." [P. 61. Daum vs. Conley, 27 Colo., 1899. Adjudication of priorities. In absence of fraud or intentional neglect, right of appeal under 3307 Eev. Stats., p. 890, 143 ; Mills' Ann. Stats. 2427, does not apply to consumers but to owner. "This provision does not contemplate that any one interested in a ditch to which an award has been made, may have an appeal, but that the party or parties repre- senting such ditch may exercise that right. The party representing the ditch means the owner or one control- ling it, and not the different consumers. It is the party thus interested who may appeal." [P. 432. Randally vs. Rocky Ford D. Co., 29 Colo., 1902. Adjudication of priorities, Decree not appealed from, though erroneous conclusion was reached, cannot be set aside. "But whether the district court thus limited the priority because of this statute, or whether upon gen- eral principles it held that due diligence in the prosecu- tion of the work was not observed, is quite immaterial. The decree thus limiting the appropriation was pro- nounced by a court having jurisdiction of the subject- matter, of the persons, and to enter the particular judg- ment. It has not been appealed from, and cannot be set aside now, even though an erroneous conclusion was reached." Water Co. vs. Tenney, 24 Colo., 1897. 233 Adjudication of priorities. Appeal under Mills' Ann. Stats., 2425, p. 1420 ; 3318 Rev. Stats., p. 893, 154, must be taken within two years from time a decree is rendered in such proceeding. "By 2425, Mills' Ann. Stats., provision is made for a reargument or review of such decrees, with or without additional evidence, within two years after rendition. By 2434, Mills' Ann. Stats. (3314 Rev. Stats., p. 892, 150), it is provided that original actions relating to rights affected by such decrees may be maintained within four years after entry. It seems clear from these pro- visions, that it was the intent of the legislature that such decrees should not be disturbed after the lapse of two years from date of entry, except by original proceed- ings. For this reason, the statement for an appeal in such cases must be presented within that period, as an appeal is not a new action, but a continuation of the original." [P. 215. Canal Co. vs. Ft. Morgan R. & I. Co., 27 Colo., 1900. Adjudication of priorities. Appeals Procedure under 3310 Rev. Stats., p. 891, 146; Mills' Ann. Stats. 2429, p. 1421, requiring transcript to be filed within six months. "We will not attempt to determine all the formalities which must be observed in order to bring the evidence introduced below properly before this court on an ap- peal * when a decree is challenged upon the ground that it is contrary to the evidence. It is clear, however, that the transcript of the evidence heard below must be certified as containing all the evidence in any manner affecting the ditches named in the order allowing the appeal, and that a certificate to that effect must be signed and sealed by the trial judge." [P. 459. Kerr vs. Dudley, 26 Colo., 1899. Adjudication of priorities. Appeals Objections should be filed at time decree is rendered, though statute gives two years in which to appeal. "If a party knowingly and intentionally neglects to appraise a court of his objection to a decree at the time it is rendered, when he has full opportunity to do so, even though he may be given by the statute two years within which to file a petition to reopen it, we think the right to do so, in so far as it is based upon a cause existing at the time the decree is rendered, is condi- tioned upon his having at that time made an objection 234 to it, and saved an exception to an adverse ruling upon his objection." [P. 230. Rio Grande L. & C. Co. vs. Ditch Co., 27 Colo., 1900. Adjudication of priorities. Petition for appeal under 3318 Rev. Stats., p. 893, 154; Mills' Ann. Stats. 2425, p. 1420, must show a cause of action. "The statute allowing a review of a decree contem- plates that a good cause must be shown therefor; that a petition for this purpose must state a cause of action.'' [P. 157. Crippen & Lawrence vs. Burroughs, 27 Colo., 1900. Adjudication of priorities. Appeals Appellate practice Bill of exceptions. "On appeal from a statutory proceeding adjudicat- ing priorities of water rights, an objection that the evi- dence is not sufficient to uphold the findings and decree, will not be considered where the bill of exceptions is not certified by the judge as containing all the evidence af- fecting the ditches in controversy." [P. 168. Means vs. Gotthelf, 31 Colo., 1903. Adjudication of priorities. Appeals 3309 Rev. Stats., p. 891, 145; 2432 Mills' Ann. Stats., p. 1422; and 3310 Rev. Stats., p. 891, 146; 2429 Mills' Ann. Stats., p. 1421, are mandatory and are jurisdictional requirements. "By section 2432 appellant must file with clerk of supreme court, within sixty days after making order of appeal, proof of the service and publication thereof. "Section 2429 requires appellant to file a transcript of record of the district court with clerk of supreme court at any time within six months after appeal is al- lowed. "Section 2432 says if such transcript is not filed within that time such appeal shall on motion be dis- missed. These provisions with reference to the filing of transcript and proof of service and publication are mandatory. * * * They are jurisdictional require- ments." '[P. 210. Xeedle Rock D. Co. vs. Crawford-Clipper D. Co., 32 Colo., 1904. Irrigation divisions. Creating water divisions and providing for appointment of Superintendent of Irrigation, under 2440 to 2446-7, superseded by 3335 Rev. Stats. 1908, p. 896, 171, abol- 235 ishiug Superintendent of Irrigation and creating Irrigation Di- visions, and providing for appointment of Irrigation Division engineers Duty of, under. 2448 Mills' Ann. Stats., -p. 1425 (3344 Rev. Stats., 1908, p. 284, 9). " Unfortunately, the water districts as originally es- tablished did not in each instance embrace the entire drainage of a main stream. To obviate the difficulties resulting from these conditions, water divisions were created, which practically embrace all the drainage of a given stream. Provision has also been made for the ap- pointment of an official in each of these divisions whose duty it is to direct that the waters of the streams of each division be distributed in accordance with the adjudica- tion decrees of the districts included in each water di- vision, so that in effect these decrees are to be treated as one, and the water distributed accordingly." [P. 271. Lower Latham D. Co. vs. Louden I. C. Co., 27 Colo., 1900. Division engineer. Appointment by governor and filing oath of office and bond constitutes such person an officer de facto Such appointment not subject to collateral attack. ''Having been appointed by the governor and having filed his oath of office and bond pursuant to statute, he becomes an officer de facto, and the question of his ap- pointment cannot be determined in an action brought by him to recover his salary/' [P. 213. Montezuma County vs. Wheeler, 39 Colo., 1907. Water commissioners. Status of, under 3407 Rev. Stats. 1908, p. 925, 333 (2385 Mills' Ann. Stats., p. 1406) ; 3433 Rev. Stats. 1908, p. 908, 269 (2386 Mills' Ann. Stats., p. 1406) Not officer of court. "Under above statute, and the decisions of this court, it may well be said that the water commissioner is a police officer of the state in the discharge of his official duties, vested with the powers (of a constable, with authority to arrest persons interfering with him in the discharge of his official duties, which would seem to provide ample remedy, * * * without resorting to proceedings as for contempt of court." [P. 125. Robertson vs. People, 40 Colo., 1907. Water commissioners. Duty of, under 3432 Rev. Stats. 1908, p. 908, 268 ; 2384 Mills' Ann. Stats., p. 1405. "In times of security (scarcity), he is required to divide the waters of the streams in the district among the ditches taking water therefrom according to the 236 prior rights of each respectively. 1 Mills' Ann. Stats., 2384." [P. 84. Platte Valley Irr. Co. vs. puckers Co., 25 Colo., 1898. Water commissioners. Memorandum kept by water commis- sioners not public record Object of reports kept by commis- sioners. "The statutes do not require the keeping of such a book. They do require that the commissioner report to the state engineer, among other things, the amount of water coming into district and the ditches which are in- adequately supplied. The object of these reports is to enable the state engineer to perform his duty, and are for his guidance, and not for the purpose of creating or perpetuating testimony." [P. 357. Big Thomson & Platte River D. Co. vs. Wayne, 36 Colo., 1906. Water commissioners. Pay of, under 3434 Rev. Stats. 1908, p. 908, 270 (L. '89, p. 470, 2) amending L. '85, p. 254, 1, which amends Gen. Stats., 1756, L. '79, p. 106, 36. "Under 2 of act approved March 25, 1889 (Sess. Laws 1889, p. 470) each county into which a water dis- trict extends is liable for an equal amount of the com- pensation of the water commissioner." [P. 508. County Commissioners vs. Locke, 2 Colo. Ap- peals, 1892. Water commissioners. Not required to make any division of water between users of same ditch. "A water commissioner is not required, nor is it his duty, to make any division or distribution of the water between the users thereof from the same ditch, neither has he the authority to interfere with the internal management of the affairs of a ditch company; but it is his duty to turn no more water into a ditch to which it may be entitled by virtue of any decree than is neces- sary to serve the needs of the consumers under such ditch, and to refuse to turn water into any ditch for the use of one not entitled thereto." [P. 318. Cache la Poudre Irr. D. Co. vs. Hawley, 95 Pacific, 1908. Water commissioner Duty of. "It is the duty of the water commissioner to keep the natural streams of his district clear of unnecessary dams or other obstructions which prevent the flow of 237 the water in such stream, and said commissioner may remove such an obstruction without an order of Court or a ditch owner who is deprived of water by such ob- struction may by legal action compel the removal thereof." [P. 100. Ortiz vs. Hansen, 35 Colo., 1905. Water commissioners. Can not claim compensation for ser- vices performed outside his own district. "We hold that the act creating district No. 42 was, in a legal sense, a later expression of the legislative will than the act by which No. 39 was organized." "It logically follows that the plaintiff (water com- missioner for water district No. 39), having no jurisdic- tion outside his own (district), can not claim compensa- tion for services performed in some other district." [P. 74. Fravert vs. Mesa C., 39 Colo., 1907. Irrigation districts. Validity of act of 1901, creating irriga- tion districts Construction of portions of act Notice. As to constitutionality of Irrigation District Law of 1901, see Anderson vs. Grand Valley Irr. Dist., p. 525. 35 Colo., 1906. Ahern vs. Board of Directors of The Highline Irr. Dist., p. 409; 39 Colo., 1907. Pleadings, parties and actions. -- Quieting title to water rights. "A bill in equity will lie to* quiet title to water rights." [P. 333. Kimball vs. Northern Colo. Irr. Co., 94 Pac., 1908. Pleadings, parties and actions. Necessary allegations in ac- tion to quiet title under Mills' Ann. Code, c. 22. "In an action to quiet title to water rights, a com- plaint is sufficient under Mills' Ann. Code, c. 22, which alleges ownership and possession without setting up facts constituting a valid appropriation." [P. 333. Kimball et al. vs. Northern Colo. Irr. Co., 94 Pac., 1908. Pleadings, parties and actions. Quieting title Possession Equity Jurisdiction. "Where a court of equity acquires jurisdiction of a cause to restrain interference with a water right, it may properly retain jurisdiction and determine all the rights of the parties ; and may, independent of the statute, enter 238 a decree quieting plaintiff's title to such water right al- though plaintiff is not in actual possession thereof." [P. 421. Gutheil P. I. Co. vs. Montclair, 32 Colo., 1904. Pleadings, parties and actions. In action to quiet title court has not power to decree change in point of diversion. "The district court * * * whose primary object was to obtain a decree quieting title to water right, had not the power to adjudicate that a change in the point of diversion thereof might be made. That can be done only under the act so providing." [P. 117. Williams vs. Conroy, 36 Colo., 1905. Pleadings, parties and actions. Sufficiency of complaint- Presumption as to duty of Superintendent of Irrigation. "It will be presumed that a superintendent of irri- gation of a water division through the water commis- sioners under his control distributes the water according to the priority of appropriation, as expressly enjoined by 1 Mills' Ann.' Stats., 2448 (3335 Rev. Stats.) * * *, a complaint which alleged that defendants (superin- tendent of irrigation and water commissioners under him) cut off plaintiffs' supply and ran the water past their headgates for the use of ditches in another district, does not state a cause of action, since the presumption is that plaintiffs' headgates were closed so as to supply senior priorities further down the stream, as directed by law." [P. 16. McLean, Water Commissioner, et als. vs. Farmers Highline Canal & Res. Co., 98 Pac., 1908. Pleadings, parties and actions. Necessary parties to suit seeking to enjoin water commissioner from diverting water loaned. "In a suit brought by appropriators of water to en- join a water commissioner from diverting water in a stream loaned to subsequent appropriators by prior ap- propriators, such subsequent and prior appropriators are necessary parties." [P. 302. Squires, Water Com., vs. Livezey, 36 Colo., 1906. Note This case reviews other cases pertaining to parties plaintiff and defendant. Pleadings, parties and actions. Limitation of actions Ac- crual of Right of Action barred after five years, by 2912 Mills' Ann. Stats. (4073 Rev. Stats., p. 1030, sec. 13). 'Plaintiff's right was initiated by purchase May, 1887. Subsequently, and prior to April, 1893, * * 239 those rights in excess of the estimated capacity of the canal were sold and evidenced by contracts or deeds. What, then, was the earliest date at which an action might have been maintained by plaintiff or his grantors to annul or set aside these contracts * * * We think * * * immediately after these contracts and deeds were issued. * * * The right * * * accrued not later than April, 1893, or more than eleven years prior to the date this action was instituted." [P. 179. Patterson vs. Ft. Lyon Canal Co., 36 Colo., 1906. Pleadings, parties and actions. Complaint under 3 Mills' Ann. Stats., sec. 2273c (3232 Kev. Stats., 1908), is fatally de- fective which fails to show water so loaned will be used without injury to later priorities. "A complaint is fatally defective in an action to re- strain defendants from interfering with the plaintiff using water loaned to him by other appropriators, which fails to allege that water so loaned can and will be used by plaintiff without injuring the vested rights of defend- ants owning later priorities." [P. 247. Bowman vs. Vriden, 40 Colo., 1907. Pleadings, parties and actions. When decree is res adjudi- cata W 7 hen not a bar. A decree entered on demurrer when such decree goes to the merits of the action, is res adjudicata, but if for lack of jurisdiction, or mistake in remedy, or some techni- cal ground, it is not a bar. [P. 288. Laguna Canal Co. vs. Rocky Ford Ditch Co., 95 Pac., 1908. Pleadings, parties and actions. Necessary parties in injunc- tion proceedings. "In an action to enjoin irrigation officers from en- forcing an order closing plaintiffs' headgate and divert- ing the water to other consumers, the other consumers were indispensable parties to the action, since the judg- ment would determine their rights to the water as against plaintiffs', and they should have been brought in under Mills' Ann. Code, sec. 16, requiring the court to order other parties brought in when a complete deter- mination can not be had without their presence." [P. 16. McLean, Water Com., et al. vs. Farmers Highline Canal & Res. Co., 98 Pac., 1908. 240 Pleadings, parties and actions. Right to intervene under sec. 22, Mills' Ann. Code. See Cache la Poudre Irr. D. Co. vs. Hawley, 95 Pac., p. 319. Pleadings, parties and actions. -- Preliminary injunction - Purpose of. "The purpose of a preliminary injunction is to pre- serve the status quo or protect rights pending the final determination of a case, and should not be granted un- less it clearly appears necessary to protect the applicant from loss or injury." [P. 16. McLean, Water Com. vs. Farmers Highline C. & Res. Co., 98 Pac., 1908. Pleadings, parties and actions. Action to quiet title cannot be maintained by administrator. "The water right being real estate, at once, upon his death, it passed to Hoi lister's heirs or devisees, subject only to the payment of his debts, and an action to quiet title, or to recover possession, does not lie at the in- stance of the administrator. For this reason alone the decree as entered must be reversed. "It was proper, however, for the administrator to sue for rents, and his right to a recovery depends upon the ownership of the principal thing out of which the rent issues, and, in this view, we must ascertain whose prop- erty the water right is." [P. 363. Insurance Co. vs. Childs, 25 Colo.. 1898. Water works. Right of city or town to purchase or erect under 6525 Rev. Stats. See Thomas, assignee of City of Grand Junction, 13 Colorado Appeals. [P. 80. Chapter 161. DRAINAGE DISTRICTS. (S. B. No. 38, by Senators Drake and Jones.) An Act in Relation to Drainage Districts. Be it Enacted ~by the General Assembly of the State of Colorado: Section 1. Whenever a majority of the holders of title or evidence of title herein provided, to agricultural lands, which are susceptible of one general mode of drainage by the same system of works, desires to provide for the drainage of such lands they may propose the organization of a drainage district under the provisions of this act, and when so organized such district shall have the powers, rights and duties conferred, or which may be conferred by law upon such drainage districts. The equalized county assessment roll next preceding the presentation of a peti- tion for organization of a drainage district under the provisions of this Act shall be sufficient evidence of title for the purposes of this Act. Section 2. A petition shall first be presented to the board of commissioners of the county in which the lands, or the greatest portion thereof, are situated, signed by the required number of the holders of title or evidences as above provided of title of such proposed district, which petition shall set forth and particularly describe the proposed boundaries of such district, and shall pray that the same be organized under the provisions of this Act; Provided, however, that such petition shall be accompanied with a map (drawn to a scale of two inches to the mile) of the pro- posed district, together with a statement thereon attached thereto which shall be prepared by the county surveyor of the county in which the major portion of the lands proposed to be included in such cHstrict shall be situated from actual preliminary surveys showing generally the proposed drainage ditch or works by which it is intended to drain the lands included in the proposed district, also showing about the point of beginning and the terminus thereof, giving the names of the owners of the lands and the de- scription thereof through which lands such drainage works are proposed to be constructed; Provided, also the petitioners must accompany the petition with a good and sufficient bond, to be approved by said board of county commissioners in double the 242 amount of the probable cost of organizing such district, condi- tioned for the payment of all costs incurred in said proceedings in case said organization shall not be effected, but in case such district is so effected, then said expenses incurred by the board of county commissioners shall be paid back to said county by said district, or said board of county commissioners may in their dis- cretion require the petitioners to pay into the treasury of the county from time to time such sum or sums of money as in their judgment may be required to pay the cost and expenses that may be incurred in the formation of such district; Provided, also the petition shall contain the name proposed for such district, and the petitioners shall select a committee of three of said petitioners, which committee shall consist of resident freeholders of the pro- posed district, to present such petition to the board of county commissioners as provided by law, praying that the said board define and establish the boundaries of said proposed district and submit the question of the final organization of the same to a vote of the holders of title of lands lying within said proposed district ; Provided, that such voters shall have paid a property tax in said district within the year preceding such proposed organization ; said petition shall be signed by a majority of the holders of title of lands within said proposed district whether such holders of lands are resident or non-resident ; Provided, also that such peti- tioners shall also be owners in the aggregate of a majority of the whole number of acres proposed to be included within said pro- posed district. Such petition shall be published at least two weeks before the time at which the same is to be presented in some newspaper of general circulation, printed and published in the county where said petition is to be presented, together with a notice signed by the committee of said petitioners selected by the petitioners for that purpose, giving the time and place of the pres- entation of the same to said board of county commissioners and the said committee shall mail said printed notice to each of the non-resident holders of lands within said proposed district to their address as shown on the tax rolls of the county or counties within said proposed district. Section 3. When such petition is presented, the Board of Commissioners shall hear the same, and may adjourn such hear- ing from time to time, not exceeding four weeks in all, and on the final hearing may make such changes in the proposed boun- daries as they may find to be proper, and shall then enter an order on the records which shall define and establish such boun- daries; Provided, that such board shall not modify such bounda- ries so as to except from the operation of this Act any territory within the boundaries of the proposed district which is susceptible of drainage by the same system of works applicable to the other 243 lauds in such proposed district; uor shall any land which will not, in the judgment of said board, be benefited by drainage by such system, be subjected to the operation of this Act; Provided, that any person whose lands are susceptible of drainage by the same system of works, may, in the discretion of the board, upon application of the owner, have such lands included in such dis- trict. Said board shall, when requested in the petition, by its order, divide such district into three or more divisions, as nearly equal in size as practicable, which divisions shall be numbered consecutively, and one director, who shall be an elector and a resident free-holder of the division shall be elected by his division; Provided, that when requested in the petition, three directors, residents, electors, and freeholders of the district, shall be elected at large by the qualified electors of the district. Said board of county commissioners shall then establish a convenient number of election precincts for said proposed district, define the bounda- ries thereof, and designate the polling places therein, which pre- cincts and polling places may thereafter be changed by the board of directors. The board of county commissioners shall also ap- point for each precinct, from the electors thereof three judges who shall constitute a board of election for such precinct, with the powers and duties usually performed by like boards. S'aid board of county commissioners shall then give notice of an elec- tion to be held in such proposed district, for the purpose of deter- mining whether or not the same shall be organized under the provisions of this Act. Such notice shall designate the name of the district and describe the boundaries thereof and the bounda ries of the precincts established therein, together with a designa- tion of the polling place and board of election for each precinct ; and shall require the electors of the proposed district to cast ballots which shall contain the words "Drainage District Yes," or "'Drainage District No" or words equivalent thereto, and also the names of one or more persons (according to the divisions of the proposed district as prayed for in the petition and ordered by the board) to be voted for- to fill the office of director. Such notice shall be published for at least three weeks preceding such election in a newspaper of general circulation within said county ; and if any portion of such proposed district lie within another county or counties, said notice shall also be similarly published in a newspaper of general circulation published within each of said counties. No person shall be entitled to vote at any election held under the provisions of this Act unless he shall possess all the qualifications required of electors under the general election laws of this state. Except as herein provided such election shall be conducted as nearly as practicable, in accordance with the 244 general election laws of this state; provided that no particular form of ballot shall be required. The officers of such district shall consist of three directors, a secretary and treasurer. Section 4. The said board of county commissioners shall meet on a second Monday next succeeding such election and proceed to canvass the votes east thereat; and if, upon such canvass, it appears that at least a majority of said legal electors in said district have voted "Drainage District Yes" the said board shall by an order entered on their minutes, declare such territory duly organized as a drainage district under the name theretofore designated, and shall declare the persons receiving, respectively, the highest number of votes for such several offices, to be duly elected to such office. And no action shall be commenced or maintained or defense made, affecting the validity of the organization of such district, unless the same shall have been commenced or made within one year after the making and entering of said order. Said board shall cause a copy of such order including a plat of said district, duly certi- fied by the clerk of the board of county commissioners, to be immediately filed for record in the office of the county clerk of each county in which any portion of said lands are situated, and no board of county commissioners of any county, including any portion of such district, shall, after the date of organiza- tion of such districts, allow another district to be formed, including any of the lands of such district, without the consent of the board of directors thereof; and from and after the date of such filing, the organization of such district shall be com- plete, and the officers thereof shall immediately enter upon the duties of their respective offices, upon qualifying in accordance with law, and shall hold such offices, respectively, until their successors are elected and qualified. Section 5. The regular election of said district shall be held on the first Tuesday after the first Monday in January in each calendar year thereafter, at which said officers shall be elected. The person receiving the highest number of votes for any office to be filled at such election is elected thereto. Within ten days after receiving their respective certificates of election hereinafter provided for, said officers shall take and subscribe the official oath, and file the same in the office of the clerk of the county where the organization was effected and thereupon immediately assume the duties of their respective offices. Each member of said board of directors shall execute an official bond in the sum of $2,000, which bond shall be approved by the judge of the county court of said county where such organization 245 was effected and shall be recorded in the office of the county clerk thereof. All official bonds herein provided for shall be in the form prescribed by law for official bonds for county officers except that the obligee named in said bond shall be the said district. Section 6. The office of the board of directors shall be located in the county where the organization was effected. Fifteen days before any election held under this act, subsequent to the organization of the district, the secretary who shall be appointed by the board of directors shall cause notice specify- ing the polling places of each precinct to be posted in three public places in each election precinct, of the time and place of holding the election, and shall also post a general election notice of the same in the office of said board, which shall be established and kept at some fixed place to be determined by said board in said county. Prior to the time for posting the notices, the board must appoint from each precinct, from the electors thereof, three judges, one of whom shall act as clerk, who shall constitute a board of election for such precinct. If the board fails to appoint a board of election, or the members appointed do not attend the opening of polls on the morning of election, the electors of the precinct present at that hour may appoint the board, or supply the place of an absent member thereof. The board of directors must, in its order appointing the board of election, designate the hour and the place in the precinct where the election must be held. Section 7. One of the judges shall be chairman of the election board and may: First, administer all oaths required in the progress of an election. Second, appoint judges and clerks, if during the progress of the election any judge or clerk ceases to act. Any member of the board of election, or any clerk thereof, may admiuistser and certify oaths required to be administered during the progress of an election. Before open- ing the polls, each member of the board must take and sub- scribe an oath to faithfully perform the duties imposed upon them by law. Any elector of the precinct may administer and certify such oath. The polls must be opened at eight o'clock in the morning of the election and be kept open until six o'clock P. M. of the same day. It shall be the duty of the clerk of the board of election to forthwith deliver the returns duly certified to the board of directors of the district. Section 8. No lists, tally paper, or certificates returned from any election shall be set aside or rejected for want of form if it can be satisfactorily understood. The board of directors must meet at its usual place of meeting on the first Monday 246 after election and canvass the returns. If at any time of meet- ing the returns from each precinct in the district in which th'e polls were open have been received, the board of directors must then and there proceed to canvass the returns; but if all the re- turns have not been received, the canvass must be postponed from day to day until the returns have been received, or until six postponements have been had. The canvass must be made in public and by opening the returns and counting the votes of the district for each person voted for, and declaring the re- sults thereof. The board shall declare elected the person receiv ing the highest number of votes so returned for each office, and also declare the result on any question submitted. Section 9. The secretary of the board of directors must, as soon as the result of any election held under the provisions of this act is declared, enter in the records of such board and file with the county clerk of the county in which the office of said district is located, a statement of such results, which state- ment must show : First, a copy of the publication notice of said election. Second, the names of the judges of said election. Third, the whole number of votes cast in the district and in each precinct of the district. Fourth, the names of the persons voted for. Fifth, the office to fill which each person was voted for. Sixth, the number of votes given in each precinct for each of such persons. Seventh, the number of votes given in the district for each of such persons. Eighth, the names of the persons declared elected. Ninth, the result declared on any question submitted in accordance with the majority of the votes cast for or against such question. The board of directors must declare elected the person having the highest number of votes for each .office, and also the result of any question submitted. The secretary must immediately make out and deliver to such person a certificate of election, signed by him and authenticated with the seal of the board. In case of a vacancy in the board of directors, by death, removal, or inability from any cause, to properly discharge the duties as such director, the vacancy shall be filled by appoint- ment by the remaining members of the board, and upon their failure or inability to act within thirty days after such vacancy occurs, then upon petition of five electors of said district the board of county commissioners of the county where the office of said board of directors is situate, shall fill such vacancy or vacancies. Any director appointed as above provided shall hold his office until the next general election of said district, and until his successor is elected and qualified. Section 10. The directors having duly qualified shall organ- ize as a board, elect a president from their number, and appoint a secretary and treasurer. The board shall have power and it 247 shall be their duty to adopt a seal, manage and conduct the affairs and business of the district, make and execute all neces- sary contracts, employ such agents, attorneys, officers and other employees as may be required and prescribe their duties and generally to perform all such acts as shall be necessary to fully carry out the purpose of this act. Said board shall have the power to survey, lay out, construct and to acquire any and all ditches, drainage works required by such district, and rights of way or other property by purchase, condemnation or otherwise as may be needed for such work, but no contract involving a consideration or expense exceeding $5,000, and not exceeding $10,000, shall be binding unless such contract shall be authorized and ratified in writing by not less than a majority of the legal electors in such district, according to the number of votes cast at the last district election; nor shall any contract in excess of |10,000 be binding until such contract shall have been authorized and ratified at an election in the manner as is provided for hold- ing elections under this Act. The said rules and regulations shall be printed in convenient form as soon as the same are adopted, for distribution among the electors of such district. Section 11. Upon the adoption of a plan of drainage by the board of directors of any district organized under the pro- visions of this Act, said board shall prepare an assessment book for such district, with proper headings, in which must be listed all lands within the district, specifying in separate columns and under appropriate heads : First. The name or names of the owner or owners to whom the land is listed. If the name or names is not known to the board, the land shall be listed to "unknown owners." Second. A description of each forty-acre tract or lot by township, range, section, and fractional section, and when such tract or lot is not a congressional subdivision, by metes and bounds, or other description, sufficient to identify it, giving the locality and an estimate of the number of acres. Third. City and town lots, naming the city or town, and the number and block, according to the system of numbering or designating in such city or town. Said assessment book shall also contain proper columns and headings for entries, showing: First The respective amounts of assessments of expense as fixed by the board of directors on each 40-acre tract or lot, or fraction thereof. Second The amount of assessment of expense fixed by said board on each city and town lot. 24S Third All changes made by the board in estimating the expense chargeable against each tract or lot. Fourth The total amount of all assessments of expense on all of the lands affected by such plan of drainage. Fifth Such other matters as the board may deem proper. The board of directors shall deliver a certified copy of such assessment book when completed, to the county assessor of each of the counties into which such district shall extend, together with their report showing the total estimated cost, including expenses of organization and of purchases or condemnation of property, of the work contemplated in the plan of drainage adopted for the district and the estimated cost for repairs and maintenance thereof and the incidental expenses of such district, for the ensuing ten years. The county assessor or assessors shall thereupon as soon as practicable, proceed to ascertain, estimate and determine and assess upon each 40-acre tract or fraction thereof, and each city or tow r n lot within the district affected by such drainage system an assessment in proportion to the entire cost, as estimated by the board of directors and the benefits to be derived from drainage to each tract, fraction, city or town lot as reported by said board and enter such amount, estimate, in United States gold coin, in the proper column in the assess- ment books, and certify the same, with the columns added up to the board of county commissioners of the county in which the district was originally organized. Such board of county com- missioners shall immediately give notice of the reception of said assessment, and of the time they acting as a board of equaliaztion will meet to equalize assessments (which meeting may be a special meeting) by publication in a newspaper of general circu- lation published in each of the counties into which such district may extend. The time fixed for such meeting shall not be less than ten nor more than thirty days from the first publication of such notice and in the meantime such assessment book must remain in the office of such board of county commissioners for the inspection of all persons interested. Upon the day specified in the notice required by this section for the meeting of the board of commissioners which is hereby constituted a board of equaliza- tion 'for that purpose, shall meet and continue in session from day to day (excluding Sundays) as long as necessary not to exceed ten days to hear and determine such objections to the valuation and assessment as may come before them and to equalize the assessment and such board may change the valua- tion as may be just, having due regard for the benefits that may accrue by such plan of drainage to the respective tracts of land or lots proposed to be affected thereby. The secretary of the board together with the secretary of the board of directors of 249 such district must be present during the session of such board of equalization and note all changes made in the assessment, and in the names of persons whose property is assessed and within ten days after the close of the session such secretaries shall have the total values and assessments, as finally equalized by the board of equalization, extended into columns and added up. The sums thus fixed against each 40-acre tract or fraction thereof and each city and town lot shall be the basis for all assessments within such district for the next ensuing ten years; Provided, that the board of directors of such drainage district may thereafter, when- ever in their judgment a new assessment of all the land within the district becomes necessary, order such new assessment to be made and shall report their reasons therefor together with a new schedule to be prepared by* them to the assessors of the county or counties included in such district when the same plan of pro- cedure shall be followed as in the case of the original assessment. After the assessment has been determined as herein provided for, the board of directors of the district shall then determine the portion of the costs and expenses estimated, it will be necessary to raise for the ensuing fiscal year and shall report such determi- nation and estimate to the board of county commissioners which acted as a board of equalization which latter board shall at their first regular meeting levy an assessment upon the equalized sums or valuation charged up on each tract or lot listed in the assess- ment book sufficient to raise the amount so determined; and shall annually thereafter, whenever further assessments for such pur- poses are necessary (when an estimate shall have been submitted by the board of directors, requesting same) levy the same in like manner and the clerk of such board of county commissioners shall certify such levy or levies to the county treasurer of the county or counties included in such district which certified report shall be deemed and treated by such county treasurer as the tax roll for collecting such assessments and when such assessments are collected such funds shall be reported and paid to the county treasurer of the county where the district was organized and the county treasurer thereof shall place the same to the credit of the district in a fund to be called the "Fund of Drainage District/' and shall be responsible upon his official bond for the safe keeping and disbursement of the same as in this act provided. He shall pay out of the same onty upon warrants of the board of directors of the drainage district signed by the president and > attested by the secretary. When any warrants of the district are presented to such treasurer and there are no funds in his hands subject to the payment thereof he shall stamp the same in the same manner as ordinary county warrants are stamped and they shall draw interest from the true date of their presentation at the legal rate of interest until paid. Such treasurer shall report in writing at each regular meeting of the board of directors and as often thereafter as requested by the board,' the amount of money in the fund, the amount of receipts since his last report, and the amounts paid out together with a list of the warrants presented since his last report; such report shall be verified and filed with the secretary of the board. The assessment authorized by this section is a lien against the property assessed from and after the date when the same is made and entered in the assess- ment book by the board of equalization as provided in this sec- tion, and such lien shall continue until such assessment is paid or the property assessed is sold for the payment thereof. Section 12. The revenue laws of this State for the assess- ment levying and collecting of taxes on real estate for county purposes except as herein modified, shall be applicable for the purposes of this act, including the enforcement of penalties, sales of property and forfeiture for delinquent assessments. All taxes levied under this Act are special taxes to be levied according to the benefits to accrue to the lands against which the same are assessed and levied. Section 13. The board of directors shall hold a regular quarterly meeting in their office on the first Tuesday in Janu ary, April, July and October, and such special meetings as may be required for the proper transaction of business. All special meetings shall be called by the president of the board, or any two directors. All meetings of the board must be public, and two members shall constitute a quorum for the transaction of business; and on all questions requiring a vote there shall be a concurrence of at least two members of said board. All records of the board must be open to the inspection of any elector during business hours. The board, its agents and em- ployes shall have the right to enter upon any land in the dis- trict, to make surveys and to locate and construct any drainage ditch or ditches and the necessary drainage laterals. Section 14. The title to all property acquired under the provisions of this act shall immediately and by operation of law vest in such drainage district, in its corporate name, and shall be held by such district in trust for, and is hereby dedicated and set apart for the uses and purposes set forth in this act, and shall be exempt from all taxation, and said board is hereby authorized and empowered to hold, use and acquire, manage, occupy and possess said property as herein provided. Section 15. The said board is hereby authorized and em- powered to take conveyances or assurances for all property acquired by it under the provisions of this Act in the name of 251 such drainage district to and for the purposes herein expressed and to institute and maintain any and all actions and proceed- ings, suits at law or in equity, necessary or proper in order to fully carry out the provisions of this Act or to enforce, main- tain, protect or preserve any or all rights, privileges and immu- nities created by this Act or acquired in pursuance thereof. And in all courts, actions, suits, or proceedings the said board may sue, appear and defend in person or by attorneys and in the name of such drainage district. Judicial notice shall be taken 'in all actions, suits and judicial proceedings in any court of this State of the organization and existence of any drainage district of this State, now or hereafter organized, from and after the filing for record in the office of the county clerk of the certified copy of the order of the board of county commis- sioners mentioned in section 3 of this Act; and a certified copy of sa^d order shall be prima facie evidence in all actions, suits and proceedings in any court of this State of the regularity and legal sufficiency of all acts, matters and proceedings therein recited and set forth; and any such drainage district, in regard to which any such order has been heretofore or may hereafter be entered, and such certified copy thereof, so filed for record, and which has exercised or shall exercise the rights and powers of such a district, and shall have had or shall have in office a board of directors exercising the duties of their office and the legality or regularity of the formation or organization whereof shall not have been questioned by proceedings in quo warranto instituted in the District Court of the county in which such district or the greater portion thereof is situated within one year from the date of such filing, shall be conclusively deemed to be a legally and regularly organized, established and existing drainage district within the meaning of this Act; and its due and lawful formation and organization shall not thereafter be questioned in any action, suit or proceeding whether, brought under the provisions of this Act or otherwise. Section 1(>. It shall be the duty of the board' of directors, on or before September 1 of each year, to determine the amount of money required to meet the maintenance, operating and cur- rent expenses for the ensuing year including any expense of construction that may have been theretofore done or may be under way and the expense of which has not been otherwise provided for and to certify to the county commissioners of the county in which said district was organized, said amount, to- gether with such additional amount as may be necessary to meet any deficiency in the payment of said expenses thereto- fore incurred, including bond interest unpaid. Section IT. It shall be the duty of the county assessor of any county embracing the whole or a part of any drainage dis- trict, to assess and enter upon his records as assessor in its appropriate column the assessment of all real estate, exclusive of improvements, situate, lying and being within any drainage district in whole or part of such county and to make and certify such assessment schedule together with the special schedule a& provided for in this Act, to the county commissioners of his county. Immediately after said assessment shall have been extended as provided by law, the assessor shall make returns of the total amount of such assessment to the county commis- sioners of the county in which the office of said district is lo- cated. All lands classified for assessment purposes with refer- ence to the benefits to accrue thereto within the district for the purposes of taxation under this Act shall be valued by the assessor at the same rate per acre, that is to say all lands of the same class shall be assessed alike; Provided, that in no case shall any land be taxed for drainage purposes under this Act, which from any natural cause can not be drained Jby the drainage system of said district. Section 18. Said board of directors shall keep a registry of all warrants or orders drawn by them showing the date, amount, name of payee, and for what purposes drawn and no warrant or order shall be issued except upon an itemized voucher duly verified stating the services rendered or material furnished the district and by whom ordered or contracted. Section 19. For the purpose of constructing a drainage system and necessary works for any district and acquiring the necessary property and rights therefor, for the purpose of pay- ing the first year's interest upon the bonds herein authorized, and otherwise carrying out the provisions of this Act the board of directors of any such district may estimate and determine the amount of money necessary to be raised for such purposes and are hereby empowered to call a special election at which election shall be submitted to the electors of such drainage district possessing the qualifications prescribed by this Act the question of whether or not ^he bonds of said district shall be issued in the, amount so determined; Provided, however, Thar the notice of such election, the manner of conducting the same, the issuance of the bonds, charter and denominations of the bonds and all matters pertaining thereto shall be conducted under and in accordance with the plan providing for the voting, issuance, sale, disposition, character of lien, exchange of bonds for work and all other particulars pertaining thereto shall be identically the same as that provided for in the matter of 253 issuing the bonds of irrigation districts created under the laws of the State of Colorado and when so issued shall be binding obligations of said district to all intents and purposes as fully as though the procedure for their issuance were set out in this Act. Section 20. The county treasurer of the county in which is located the office of any drainage district, shall be and is hereby constituted ex-officio district treasurer of said district and said county treasurer shall be liable upon his official bond, and to indictment and criminal prosecution, for malfeasance, misfeasance or failure to perform any duty herein prescribed as county treasurer or district treasurer as is provided by law in other cases as county treasurer and shall perform the duties of such district treasurer as provided for the discharge of the duties of the district treasurer of irrigation districts in the State of Colorado. Section 21. After adopting a plan for the construction of a drainage system or works in any district the board of di- rectors shall pursue the same procedure and in the same manner as is provided for the construction of canals, reservoirs and works by irrigation districts in the State of Colorado except as modified by this act. Section 22. The board of directors shall have the power to construct the said works of any drainage district across any water courses, street, avenue, highway, railway, canal or ditch which the route of such drainage^ system or any branch thereof may intersect or cross; and if any railroad company and said board, or the owners and controllers of said property, thing or franchise so to be crossed, cannot agree upon the amount to be paid therefor, or the points or the manner of said crossings, the same shall be ascertained and determined in all respects as is provided in respect to the taking of land for public uses. The right of way is hereby given, dedicated, and set apart, to locate, construct and maintain said works, or reservoirs, over, through, or upon any of the lands which are now, or may be the property of the State. Section 23. The board of directors shall each receive at the rate of two and one-half dollars per day while attending meetings and their actual and necessary expenses while engaged in the business of the district. The salary of the secretary shall not exceed five hundred dollars per annum. No director or any officer of said district shall in any manner, be interested, directly or indirectly, in any contract awarded or to be awarded by the board, or in the profits to be derived therefrom; nor shall receive any bond, gratuity or bribe, and for any violation of this provision, such officer shall be deemed guilty of a felony, and such conviction shall work a forfeiture of his office, and he shall be punished by a fine not exceeding five hundred dollars, or by imprisonment in the penitentiary not exceeding five years nor less than one year. Section 24. The board of directors or other officers of the district, shall have no power to incur any debt or liability what- ever by any method in excess of the express provisions of this Act, and any debt or liability incurred in excess of such express provisions shall be and remain absolutely void. Section 25. Compensation for property taken by the district, change of boundaries of any drainage district by the inclusion or exclusion of lands, dissolution of district, judicial examination and confirmation of any proceedings, issue and sale of bonds shall be controlled and in accordance with the provisions of the irri- gation district laws of Colorado pertaining to the matters herein specified. Section 26. The manner of contesting any election held under the provisions of this act shall be the same as provided for the trial and the hearing of elections of county officers other than county judge. Section 27. All water gathered by such drainage improve- ment shall be the property of those from whose lands the same is taken by such drainage ditches or canals, and the same shall be pro-rated among the different land owners from which such water is taken, according to the cost of the improvement assessed against each one, so far as is reasonably possible ; Provided, how- ever, That nothing in this act contained shall be construed to affect, interfere with or impair any accrued or vested rights of any kind or character except in so far as the same may be affected by condemnation as in this act permitted. Section 28. Owners of land which requires combined drain- age may provide for the construction of drains, ditches or water courses upon their own land whenever the owners of lands which may require a combined system of drainage shall unanimously and mutually agree in writing among themselves upon a system of drainage and the character of Avork necessary to be done to drain their lands and the amount of money each shall contribute towards said proposed works; they may reduce their agreement to writing specifying the boundary lines of said voluntary district and the lands therein in 40 acre tracts or smaller tracts if nec- essary, if giving the names of the owners of each tract of land and also specifying the work which they propose shall be done, and naming three persons among their number who shall act as directors until the annual election, and may agree upon any other lawful matter or thing which they may deem pertinent to the 255 work proposed. They shall submit such voluntary agreement to the board of county commissioners of the county wherein the major -part of the lands proposed to be included in such district may be situated, and shall submit with such agreement a plat of the land giving a general description of the same, and the said board of county commissioners as soon thereafter as may be practicable shall carefully consider all questions involved, and shall make a personal inspection of the land proposed to be in- cluded in said voluntary district or may employ some competent engineer or surveyor to examine and report to said board on the same and the expense of such surveyor or engineer, including any expense that the county commissioners may incur in the exami- nation of such project shall be paid by the parties to such vol- untary agreement, and the board of county commissioners may require a deposit to be made with the county treasurer of the county to protect the county against such expense, if such board of county commissioners shall become satisfied that the plan pro- posed is practicable and will not interfere substantially with the interests of the public and that the agreement submitted is fair and equitable in all respects considering the benefits which the respective lands will receive from such voluntary drainage system, Then the board of county commissioners shall enter an order upon their records approving such agreement and shall file the same with the county clerk with the accompanying plat in the office of the county where the major portion of the land of said pro- posed district may be situated, and if such district extends into more than one county a certified copy of the agreement and plat together with the approval of the county commissioners of the county where the major portion of the land is situated shall be filed by the parties entering into such agreement with the county clerk of such other county or counties, and thereupon the said drainage district shall be deemed fully organized and established by law and shall have all the pOAvers of drainage districts organ- ized by petition as hereinbefore provided for, and such directors so named in said agreement shall then* possess all the powers and proceed in like manner as before designated in the case of di- rectors of districts organized |: by petition, and the agreement herein provided for shall constitute a charter of authority of such voluntary district and all lands subscribed to and volun- tarily included in said district shall be considered as a unit or but one tract of land in the determination of any question or right or duty as between said voluntary district and any lands outside thereof, whether lying above or below said district or adjacent thereto or otherwise. Approved April L>4, 1009. 256 Chapter 176. IRRIGATION DISTRICTS FORMATION. (H. B. Xo. 159, by Mr. Weiser.) An Act to Amend an Act Entitled "An Act in Relation to Irri- gation Districts," Approved May 3, 1905. Be it Enacted ~by the General Assembly of the State of Colorado: Section 1. That section eleven (11) of an Act of the General Assembly of the State of Colorado, entitled "An Act in Relation to Irrigation Districts," approved May 3, 1905, is hereby amended and re-enacted to read as follows: "Section 11. (Board of Directors Officers General Duties Ratio of Water Distribution.) The directors, having duly qualified, shall organize as a board, elect a president from their number, and appoint a secretary. The board shall have power, and it shall be their duty, to adopt a seal, manage and conduct the affairs and business of the district, make and execute all necessary contracts, employ such agents, attorneys, officers and employees as may be required, and prescribe their duties, establish equitable rules and regulations for the distribution and use of water among the owners of said land, and generally to perform all such acts as shall be necessary to fully carry out the purposes of this act. Said board shall have the power in addition to the means to supply water to said district proposed by the petition submitted for the formation of said district, to construct, acquire, purchase, or condemn any and all canals, ditches, reservoirs, reservoir sites., water, water rights, rights of way, or other prop- erty necessary for the use of the district, or to acquire by con- demnation, or otherwise, the right to enlarge any- ditch, canal or reservoir already constructed or partly constructed. In case of the purchase of any property by said district, when it shall be proposed by the board of directors to purchase a system of irriga- tion already constructed or partially constructed, and to enlarge and complete the same adequate to the needs of the district, the board may in such case embody in one contract the matter of the purchase, the enlargement, and the completion of such irriga- tion system without inviting bids for such construction and com- pletion; and in case of the purchase of such property as afore- said by said district, the bonds of the district hereinafter pro- 257 vided for may be used at their par value in payment without previous offer of such bonds for sale. But no contract involving a consideration exceeding ten thousand dollars, and not exceeding twenty-five thousand dollars, shall be binding, unless such con- tract shall be authorized and ratified in writing by not less than one-third of the legal electors of said district according to the number of votes cast at the last district election; nor shall any contract in excess of twenty-five thousand dollars be binding until such contract shall have been authorized and ratified at an election, in manner as is provided for the issue of bonds. The said rules and regulations shall be printed in convenient form as soon as the same are adopted, for distribution in the district. All waters distributed shall be apportioned to each land owner pro rata to the lands assessed under this act within such district. The board of directors shall have power to lease or rent the use of water or contract for the delivery thereof to occupants of other lands within or without the said district at such prices and on such terms as they deem best, provided the rental shall not be less than one and one-half times the amount of the district tax for which said land would be liable if held as a freehold, and provided further no vested or prescriptive right to the use of such water shall attach to said land by virtue of such lease or such rental, provided that any land owner in said district may with the consent of the board of directors assign the right to the whole or any portion of the water so apportioned to him for any one year where practicable to any other bona fide land owner, to be used in said district for use on his land for said year, provided such owners shall have paid all amounts due on assessments upon all such lands. The board of directors shall further have power to lease or rent the use of water or to contract for the delivery thereof to settlers upon or occupants of the public domain on the terms hereabove provided; provided that in .such case the board of directors shall have the further power to make a contract on behalf of the district with such settler or occupant to the effect that such settler or occupant shall, upon receiving full title to his lands and upon the payment of his proportionate share of the bond assessments as provided in Section 35, include his lands within said district, and shall upon such inclusion be entitled to all the rights and privileges of a member of said district. Before the execution of such contract the board of directors shall cause notice of such contract to be given substantially as provided in section 33 of this act, with such changes in the form of the notice as may be necessary, and a hearing upon said contract and all objections thereto shall be had as provided in section 34 of this act. If upon said hearing the board of directors deem it not for 258 the best interests of the district to execute said contract, they shall by order refuse to execute said contract; but if they deem it for the best interests of the district that said contract be executed, the board may execute said contract, and in such case said contract shall be valid and binding upon all parties thereto, and when the said settler or occupant shall have complied with said contract and obtained title to his lands, the board shall, upon proof of such compliance and obtaining of title, and without any further notice or hearing upon the matter, enter an order of inclusion of said lands as provided in section 36 of this act; provided, if within thirty days from the execution of said con- tract, a majority of the qualified electors of the district protest in writing to said board against the execution of said contract, said contract shall be held for naught, and shall not be binding upon any party thereto." Section 2. That section 36 of said act is hereby amended and re-enacted so as to read as follows: "Section 36. (Boundaries Orders.) The board of directors if they deem it not for the best interests of the district to include therein the lands mentioned in the petition, shall by order reject the said petition, but if they deem it for the best interests of the district that said lands be included, the board may order that the district be so changed as to include therein the lands mentioned in the said petition. The order shall describe the entire boun- daries of the district with the lands so included, if the district boundaries be changed thereby, and for that purpose the board may cause a survey to be made of such portion of such boundaries as may be deemed necessary, Provided, If within thirty days from the making of such order a majority of the qualified electors of the district protest in writing to said board against the inclu- sion of such lands in said district, said order shall be held for naught and such lands shall not be included therein. Provided that in the case of inclusion of government land according to the provisions of section 11, said protest must be made within thirty days of the date of the execution of the contract therein provided for." Section 3. The acts and parts of acts inconsistent herewith, are hereby repealed. Section 4. In the opinion of the General Assembly, an emergency exists; therefore, this act shall take effect and be in force from and after its passage. APPROVED April 13th 1909. 259 Chapter 177. IRRIGATION DISTRICTS PRIORITY OF RIGHT. (H. B. No. 199, by Mr. McCaskill.) An Act to Amend Sections 11 and 12 of an Act Entitled "An Act to Repeal Section Five (5), of an Act Entitled 'An Act to Provide for the Appointment of a State Engineer, and to Define His Duties and Regulate His Pay, and for the Ap- pointment of His Assistants, and the Establishment of Water Divisions,' Approved March 5, 1881 ; the Same Being Section 1806, of the General Statutes, 1S83 ; and Also to Amend Sec- tion Fifteen (15), of an Act, Entitled 'An Act to Regulate the Use of Water for Irrigation, and Providing for Settling the Priority of Right Thereto, and for Payment of the Ex- penses Thereof, and for the Payment of All Costs and Ex- penses, Incident to Said Regulation of Use,' Approved Feb- ruary 19, 1879; and to Establish the San Juan Water Di- vision ; Also, to Create Water Districts in Established Water Divisions; Also, to Provide for Utilizing Testimony Hereto- fore Offered as Evidence in the Adjudication of Water Rights," Approved April 1, 1885, and to Amend Section 3 of an Act Entitled "An Act to Amend Sections Four, Seven, Ten, Seventeen, Eighteen and Twenty-five of an Act Entitled, An Act to Repeal Section Five (5), of an Act Entitled 'An Act to Provide for the Appointment of a State Engineer, and to Define His Duties and to Regulate His Pay, and for the Appointment of His Assistants and the Establishment of Water Divisions,' Approved March 5, 1881, the Same Being Section Eighteen Hundred and Six of the General Statutes, 1883; and Also to Amend Section Fifteen (15), of an Act Entitled, 'An Act to Regulate the Use of Water for Irrigation and Providing for Settling the Priority of Right Thereto, and for Payment of the Expenses Thereof, and for the Pay- ment of All Costs and Expenses Incident to Said Regulation of Use,' Approved February 19, 1879, the Same Being Section Seventeen Hundred and Fifty-one of the General Statutes of 1883, and to Establish the San Juan Water Division ; Also to Create Water Districts in Established Water Divisions; Also to Provide for Utilizing Testimony Heretofore Offered as Evidence in the Adjudication of Water Rights,' Approved April 1, 1885," Approved April 6, 1889. 260 Be it Enacted by the General Assembly of the State of Colorado: Section 1. That sections 11 and 12 of an act entitled "an act to repeal section five (5), of an act, entitled 'an act to provide for the appointment of a, State Engineer, and to define his duties and regulate his pay, and for the appointment of his assistants, and the establishment of water divisions,' approved March 5, 1881 ; the same being section 1806, of the General Statutes, 1883 ; and also to amend section fifteen (15), of an act entitled 'An act to regulate the use of water for irrigation, and providing for settling the priority right thereto and for payment of the expenses thereof, and for the payment of all costs and expenses, incident to said regulation of use,' approved February 19, 1879, the same being section 1751, of the General Statutes of 1883 ; and to establish the San Juan water division; also, to create water districts in established water divisions; also, to provide for util- izing testimony heretofore offered as evidence in the adjudication of water rights," shall be amended so as to read as follows : "Sec. 11. Water district No. 18 shall consist of all lands irrigated by ditches or canals, taking water from that portion of the Apishapa river and its tributaries, south of the south boun- dary line of Pueblo county." "Sec. 12.- Water district Xo. 19 shall consist of all lands irrigated by ditches or canals, taking water from that portion of the Purgatoire river and its tributaries, south of the north boundary line of Las Animas county." Section 2. That section 3 of an act entitled "An act to amend sections four, seven, ten, seventeen, eighteen and twenty- five of an act entitled, an act to repeal section five ( 5 ) , of an act entitled, 'An act to provide for the appointment of a State Engi- neer, and to define his duties and to regulate his pay, and for the appointment of his assistants and the establishment of water divisions," approved March 5, 1881, the same being section eigh- teen hundred and six of the General Statutes, 1883; and also to amend section fifteen (15) of an act entitled, 'An act to regulate the use of water for irrigation and providing for settling the priority of right thereto, and for payment of the expenses thereof, and for the payment of all costs and expenses incident to said regulation of use,' approved February 19, 1879, the same being section seventeen hundred and fifty-one of the General Statutes of 1883, and to establish the San Juan water division; also to create water districts in established water divisions; also to pro- vide for utilizing testimony heretofore offered as evidence in the adjudication of water rights, approved April 1, 1885," is amended to read as follows : 261 "Sec. 3. Water district No. 17 shall consist of all lands irrigated by ditches or canals taking water from that portion of the Purgatoire river north of the north boundary line of Las Animas county; and all lands irrigated by ditches or canals taking water from that portion of the Arkansas river below water district No. 14, and above the mouth of the Purgatoire river, and from the streams running into the said portion of the Arkansas river, except that portion of the Apishapa river and its tribu- taries, south of the south boundary line of Pueblo county." APPROVED April 5, 1909. Chapter 178. IRRIGATION, COLLEGE AND SCHOOL LANDS. (H. B. No. 267, by Mr. Clark.) An Act to Provide For the Admission of Agricultural College and Public School Lands Into Irrigation Districts; Pro- viding for and Authorizing the Assessment of Agricultural College and Public School Lands Within Irrigation Dis- tricts for Irrigation District Purposes; and Providing for the Payment of Such Assessment So Levied. Be it Enacted ~by the General Assembly of the State of Colorado: Section 1. For the purpose of furnishing water and secur- ing water rights for agricultural college and public school lands, lying within or adjacent to the boundaries of any irriga- tion district now organized, or which may hereafter be organ- ized, the State Board of land commissioners is hereby author- ized to petition all such lands into such irrigation districts. Section 2. All such petitions shall be in the form now pro- vided by law for the petition of other lands into such irrigation districts, and shall be signed, sealed and acknowledged by the register of the State board of land commissioners, on behalf of said board, and shall in addition be countersigned by the Governor of the State, on behalf of the State, and when so signed, sealed, acknowledged and filed with the board of di- rectors of any irrigation district, shall be deemed to give the assent of said State board of land commissioners and the State 262 of Colorado to the inclusion of all lands therein described in said irrigation district. Section 3. All such lands so included in any irrigation district in this State, shall be assessed for irrigation district purposes in the same manner and at the same rate as other lands in such irrigation districts. Section 4. It shall be the duty of the county treasurer of each and every county in this State wherein any irrigation district is located, and in which such lands have been so in- cluded, to notify the register of the State board of land com- missioners, on or before the first day of February of each and every year of the amount of district assessments due on such lands, giving therein the exact description of each tract of land so assessed and the amount of assessments due thereon. Im- mediately upon receiving such notice it shall be the duty of the register of said State board of land commissioners to place the same before said board at their next regular meeting, who shall examine said notice of assessments due, and if the same be found correct, they shall certify the same to the State Treas- urer who shall pay the same out of any of the moneys in his hands belonging to said respective land funds howsoever de- rived, and charge the same to said respective funds. Such payment shall be by warrant from the State Treasurer to the proper county treasurer, and when so received by him, he shall issue his receipts therefor in the name of the State board of land commissioners, and shall in addition issue a duplicate receipt to said State Treasurer. Section 5. Upon the receipt of such receipts from said county treasurers, it shall be the duty of the register of the State board of land commissioners to enter and charge the same against each tract of land so paid on, in a book to be kept by* him for that purpose, showing the amount paid, date of payment and to whom paid, and whenever any of said tracts of land shall be sold, the purchaser thereof, in addition to the purchase price therefor, shall pay all of such accrued assess- ments so paid as aforesaid, together with interest thereon, from the date of payment at the rate of 6 per centum per annum, such accrued assessments and interest thereon to be included in the total purchase price to be paid by said purchaser. Pro- vided, That this section shall not apply to such assessments as shall have been paid by the lessees of any such tracts of laud, theretofore leased from the State as hereinafter provided. Section 6. In the event that any such tracts of land so included within any irrigation district, shall be leased from the State board of land commissioners, then and in that case all 263 such lessees shall in addition to the rental paid to said State board of land commissioners, pay such an additional amount to said board as will equal the district assessments levied upon such lands for the year in which such rental shall be paid; and such moneys when so received by the register of the State board of land commissioners, shall be turned into the State Treasurer and be by him kept in a separate fund for the payment of such assessments aforesaid. Section 7. All contracts for the sale of any such lands in- cluded within any irrigation district shall, in addition to the purchase price to be paid, provide that such purchaser shall on or before the first day of March in each and every year, until he shall have secured a patent for such lands, pay unto the register of the. State board of land commissioners such an amount as will equal the district assessments so levied upon such lands for the year in which such payment is to be made, and such moneys when so received by said register, shall be turned in to the State Treasurer and be by him kept in a separate fund for the payment of such assessments aforesaid. APPROVED April 5th 1909. Chapter 179. JACKSON COUNTY (H. B. No. 342, by Mr. Greenman.) An Act to Establish the County of Jackson and the Temporary County Seat Thereof; Providing for the Appointment of Its Precinct and County Officers, Fixing the Terms of Court Therein, and Attaching the Same to Certain Congressional Senatorial, Representative, Judicial and Normal Districts. Be it Enacted by the General Assembly of the State of Colorado: Section 1. That so much of the county of Larimer as is included within the following described boundaries shall be set apart and is hereby established as a county to be called the county of Jackson, and the boundaries are as follows, to-wit: Beginning on the north boundary of the State of Colorado at the point where the present counties of Larimer and Routt 264 meet, thence in a southerly direction along the summit of the Snowy range to the northwest corner of Grand county at the point where the counties of Grand, Koutt and the present county of Larimer join, thence easterly along the north bound- ary of Grand county, which is the summit of the Continental divide or Snowy range, to the point where the said Snowy range intersects the Medicine Bow range, thence northerly along the summit of the Medicine Bow range, to the north boundary of the State of Colorado, thence west along said north boundary of Colorado to the place of beginning. All of which said Jack- son county being that portion of the present county of Larimer which lies west of the Medicine Bow range. Section 14. In the opinion of the General Assembly an emergency exists; therefore, this act shall take effect and be in force immediately after its passage and approval. APPROVED May 5th 1909. 265 INDEXES. NOTE In the index to statutes will be found sections which do not appear in this compilation, owing to the fact such sections were not revised under chapter entitled "Irrigation." The numbers refer to the sections. The heads of the topical index to decisions are the same as appear in the Revised Statutes of 1908 under title of "Irrigation." References in the alphabetical index are to be found in the top- ical index. INDEX TO STATUTES. adjudication of priorities, claim must be filed before offering evidence 3316 costs of, how paid .................... 3320 in supreme court, how paid ...... 3311 decree, appeal from, who may take ................................... 3307 costs in supreme court ............ 3311 order allowing ...................... 3307 service of .......................... 3308 proof of .......................... 3309 procedure to perfect ................ 3307 supreme court amend or make new decree ........................ 3312 evidence at hearing, who may of- fer .............. . ...................... 3294 books and records in ............... 3296 failure to produce ................ 3297 claim filed before offering ........ 3316 effect of failure to offer ............ 3317 former used, when .................. 3295 limitation of actions .................. 3313 on rehearing ......................... 3318 referee, appointed, when ............ 3291 accounts kept by .................... 3300 adjourned hearing, when .......... 3302 compensation of ................... 3300 how paid ........................... 3300 contempt before .................... 3299 court may dismiss, when .......... 3306 vacancy, how filled ................ 3306 fees of witnesses before .......... 3301 give notice of taking testimony.. publication and posting of proof of 3292 3292 3293 hearing before, notice of .......... 3292 what facts to be ascertained 3298 who may offer evidence at ...... 3294 when former evidence in ........ 3295 powers and duties of ............. . 3296 report of, contents ................. 3304 filing .................................. 3305 final order on, when ............... 3305 rights of parties against, for neg- lect .... .......... .................. 3303 what referred to .................... 3291 rehearing, none after two years... 3318 rules governing, court may make.. 3315 sheriff not serve writ out of county ................................ 3319 when suit barred ..................... 3314 adjudication of priorities for irriga- tion. court number, ditches ...... 3290 reservoirs ............ .............. 3290 decree determining priority and amount of water .................... 3284 hearing for, before court ............ 3284 notice of, posted and published.. 3286 how served ........................ 3288 none required after decree ...... 3289 proof of posting and publishing. 3287 jurisdiction of court .................. 3276 notice of application for, published and posted ........................... 3286 proof of publication and posting. 3287 served on all parties ............... 3288 served by mail, when ............ 3288 petition for ............................ 3284 secretary of state publish act au- thorizing ............................. 3278 certificate of publishing, filed ____ 3279 effect of ........................... 3279 proof of publication ................ 3278 statement of claim, contents ...... 3277 filed . . 3277 adjudication of priorities for pur- poses other than irrigation 3280 court number water rights 3281 jurisdiction of court 3280 petition for 3280 allotment of water on alternate days. 3166 appropriation of seepage w.ater 3177 appropriation of water, map of ditch or reservoir filed 3181 certified copies of in evidence 3186 state engineer examine map, etc... 3185 statement attached to map 3182 signed and sworn to 3184 construction of ditch or reservoir on desert land 5142 decree of priority, copy of filed when point of division changed from one district to another 3230 desert land, ditch or reservoir on.. 5142 ditches, cleaning and repairing by co-owners 4051 lien for 4053 action begun within 6 months.. 4056 attorney fees and costs 4059 judgment, execution 4057 assignment of 4055 request to clean, failure 4052 sale of ditch to satisfy redemp- tion 4058 satisfaction of, entered 4060 refusal to enter, penalty 4060 statement filed, contents 4054 statement attached to 3182 bridge over, owner must maintain. 3235 must be built in three days 3236 built by supervisor, if not 3236 cost of, how recovered 3237 certified copies of destroyed rec- ords recorded 5269 description of in assessment sched- ule 5779 by assessor 5780 diligent construction required 3186 enlargement of, statement of 3183 exempt from taxation, when 5546 head of, extended up stream, when 3173 in cities, covered when 3241 head of. latticed 3242 map of filed 3181 measurement of water in by owner 3256 by commissioner 3258 no land burdened with two 3170 owner maintain embankments 3233 construct bridge 5829 permit enlargement, when 3172 prevent waste 3238 provide water on demand 3254 penalty for failure 3257 running excess water in forbidden 3239 right of way for 3167 extent of 3168 condemnation of 3169 shall be kept in repair 3255 shortest route for must be taken.. 3171 ditch and reservoir companies may condemn right of way 2461 enter lands to survey 2462 pay days of 6981 use of truck system by 6997 division engineer, appointment 3335 applicant for appointment 3338 examination of papers 3340 qualifications of 3389 rating of certified to governor 3340 268 division engineer continued. bond of 3343 commissioners report to 3350 tabulate report of commissioners 3348 copies of priority decrees furnished 3346 same 3349 hear charges against water com- missioner 3345 meeting of engineers 3347 report of 3350 oath of 3343 owner failing to receive water re- port to 3351 powers and duties of 3344 salaries and expenses of 3342 supervision of 3324 vacancy in, examination to fill 3337 domestic purpose, water appropriated for not to be used for other 3178 penalty for misapplication 3179 drainage, board of viewers, duties.. 3191 report of 3192 disposition of drained water 3201 engineers and viewers, fees of 3199 hearing on petition 3192 joint hearing, when 3192 petition to establish drain 3188 bond of petitioners 3190 contents of petition 3189 hearing on 3191 right of eminent domain 3200 when plan feasible 3194 report 3194 appeal from 3194 when plan not feasible 3193 work done by contract, when 31% acceptance of 3198 expenses of pro rated 3197 drainage surplus water 2463 exchange of water, owners may 3232 same 3225 headgates and weirs maintained in case of 3249 floating timber down stream, lawful when 6458 bond for < 6458 gauge rods, must be maintained, when 3251 headgates, owner maintains 3244 same 3246 liability for failure to maintain.... 3245 locks for, provided... 3247 size of timbers 3244 headgates and weirs, construction of 3248 control of 3252 owner transferring water must maintain 3248 penalty for, cutting or breaking.. 3495 interfering with 3497 rating tables furnished 3250 state engineer require owner to maintain 3329 water not delivered if not main- tained 3248 injuring dam, dyke, etc., penalty 1881 irrigation districts, annexation of, contiguous territory 3471 redi vision of district 3479 election of officers 3479 boundaries changed on 3475 legal representatives may petition for 3478 order allowing 3476 recorded 3476 petition for 3471 allowance of 3476 granted*, when 3475 hearing of 3473 notice of 3472 petitioners pay for 3474 plat of, recorded 3476 effect of 3477 bonds of, a lien 3456 irrigation districts continued election to authorize 3454 ballot at 3454 election to authorize additional is- sue 3454 interest coupons 3454 judicial examination and conforma- tion of 3489 hearing on 3493 notice of 3491 petitipn for 3490 pleadings in action for 3492 land board invest in, when 5199 life of 3454 may be used as purchase money.. 3450 payable, when 3454 payment of, when 3454 how 3456 sale of 3455 application of proceeds 3455 tax levy, for paymen of 3457 assessor extend 3458 county commissioners fix 3459 boundaries of, change of 3470 construction of ditch, etc., by 3462 claim for 3463 audited 3463 payment of 3463 contract for 3462 officers not interested in 3466 contracts of, voted on, when 3450 conveyances by 3453 directors of 3442 election of 3445 bond of 3445 duties of 3450 execute conveyances 3453 may appear in suits 3453 meetings 3451 officers of 3450 powers of 3451 vacancy in 3449 dissolution of, petition for 3489 election to submit question of 3487 canvass of vote of '.... 3488 record of 3488 election of directors, when held 3445 canvass of votes 3448 election officials, duties 3447 notice of 3446 record of votes , 3449 election to submit question of or- ganization 3443 ballots used at, form of 3443 canvass of votes 3444 election precincts for 3444 notice of 3443 proclamation of 3444 qualification of electors 3443 eminent domain, right of 3465 pay for property taken 3469 exclusion of lands from 3481 division of district in case of.... 3486 order allowing, recorded 3485 effect of 3485 petition for 3481 granted, when 3484 hearing on 3483 notice of 3482 indebtedness of, limit of 3467 may be organized, when 3440 officers of 3442 not interested in contracts 3466 salaries of 3466 organization of, expense of, how paid 3464 petition for establishment of con- tents 3441 commissioners hear 3442 cost bond filed with 3441 filed, where 3441 presentation of 3442 publication of 3441 269 irrigation districts continued, property of, exempt from taxes 3452 how held 3452 rate of charge for water 3464 rights to cross highway, etc., with ditch 3465 suits, appear, in, how 3453 taxes of, how collected, etc 3461 treasurer of, county treasurer act as 3460 duties of 3460 salary of 3460 trees conserving waters of, not to be cut 2626 warrants of, when issued 3463 water of, supply of, insufficient 3468 irrigation division boundaries of 3335 jurisdiction of divisions 4 and 5.... 3336 supervision of 3335 lien attaches to water right 4031 map of ditch or reservoir filed 3181 statement attached to map 3182 measuring weirs, must be maintained 3248 of meadow, right of 3176 owner of reservoir, etc., shall not change flow of water, etc 2773 penalty for, breaking ditch, flume, etc 3495 interfering with headgate 3497 point of diversion, change of 3222 change to other district 3230 notice of change 32^9 petition to change 3226 joinder in petition 3228 notice of 3227 same 3226 water must be registered 3223 commissioner keep record 3224 when change allowed 3227 appeal from allowance 3231 priorities, adjudication of 3276 same 3280 priority decree furnished engineer 3316 same 3349 rate of charge for water, establish- ment of 3262 same 3265 bonus deemed an extortionate rate 3271 penalty for collecting excessive rate 3272 rating tables furnished by commis- sioner 3250 reservoir, completion of work, engi- neer's statement of 3205 condemnation of land for 3202 construction of, supervision of 3202 same 3205 cost of 3206 plans of submitted 3202 same 3205 diligent construction required 3186 enlargement of, statement of 3183 inspection of, cost of 3206 liability for overflow 3204 map of filed 3181 statement attached to 3182 owner of, liable for damage by overflow 3204 plans of submitted 3202 same ., 3205 right to construct to store water.. 3202 survey of 3253 report of 3253 unsafe, complaint that reservoir is 3209 duty of engineer 3209 appeal from decision of engineer 3212 expense of examination 3211 liability of owner for damages from 3213 same 3204 power of engineer in inspecting 3210 water, amount of stored in, state engineer determine 3207 commissioner withdraw excess... 3208 reservoir continued from may be conducted through stream 3203 not stored in if gauge rod not maintained 3251 reservoir on arid land, compensation of county surveyor 3220 completion of 3217 construction of 3216 supervision of 3216 inspection of 3219 plat of 3217 approval of 3218 repair of 3219 survey of site for 3215 sale of public lands to promote 5197 state land for irrigation projects.. 5183 spring, right to water from 3177 state canals and reservoirs, Api- shapa creek reservoir, appropria- tion for 3533 board of construction 3535 location 3534 property of state 3536 sale or lease of water 3537 money from, disposition.. 3538 Boss lake reservoir, location 3555 control of 3560 Chaffee county reservoir, location 3555 board of construction 3556 powers of 3556 disposition of water 3557 management of 3557 same 3560 penalty for damaging 3559 property of state 3557 Coal creek reservoir, appropriation for 3529 penalty for damaging 3532 property of state 3530 water in, right to 3529 delivery of 3530 control of 3561 same 3562 same 3560 convict labor used on 3499 feeders for South Platte and Ar- kansas 3527 property of state 3528 Hardscrabble creek reservoir, ap- propriation 3539 board of construction 3541 distribution of water 3542 location 3539 maintenance and repair 3544 penalty for damaging 3545 plans and specifications 3540 property of state 3542 Mesa county ditch, location 3514 cash subscriptions, how used 3519 certificate of indebtedness 3516 construction of 3517 contract for transporting supplies, convicts, etc 3521 convict labor used on 3517 return of convicts to peniten- tiary 3529 property of state 3515 right of way for 3518 deputy warden in charge of con- victs 3523 manager of, salary 3524 sale or lease of water 3525 superintendent of construction, sal- ary 3522 Monument creek reservoir, location.. 3551 disposition of water in 3552 penalty for damaging 3554 property of state 3552 penitentiary commissioners may construct 3499 Saguache creek reservoir, location.. 3546 board of construction 3547 disposition of water in 3548 270 Saguache creek reservoir continued. penalty for damaging 3550 property of state 3548 state canal No. 1, board of control of 3505 duties of 3505 expenses of, how paid 3513 rights and powers of 3508 aid in construction 3504 certificates of indebtedness issued.. 3504 received as money, when 3512 land board assume control of, when 3506 construct laterals 3511 establish charge for water 3509 penitentiary commissioners may contract 3499 powers of 3501 sale and lease of water from 3503 same 3509 state engineer survey 3500 title to vests in state 3502 same 3510 use of water in 3507 state canal No. 3, location 3526 relinquished to United States 6928 waste gates, owner maintain 3246 water, no person to receive more than entitled to 3260 penalty for receiving 3261 allotted on alternate days, when.. 3166 prorated among consumers 3175 appropriated for domestic purposes, use of restricted 3178 penalty for misapplication 3179 failure to receive reported 3351 measurement of, by owner 3256 by commissioner 3258 measurement, inch, defined 7026 owner of ditch furnish, when 3254 penalty for failure 3257 penalty for refusal to deliver 2373 prorated among consumers 3175 rate of charge for, in irrigation district 3464 county commissioners fix 3263 same 3268 hearing 3263 same 3268 commissioners fix time of 3262 same 3267 petition for 3262 same 3265 regulation of 3262 same 3265 right to continue purchase of 3264 seepage, appropriation of 3176 spring, right to 3176 unit of measurement of 3330 use of, who entitled to 3165 users may protest against cutting trees on state land 2630 waste of, commissioner prevent 3438 water commissioners, appointment.. 3427 assistants, employed when 3436 salary of 3436 time of, account of 3437 begin work, when 3430 bond of 3427 bribery of, penalty 1723 charges against, trial 3345 deputy, appointment 3435 salary 3435 devote entire time to duty 3431 distribute water for purposes other than irrigation 3283 duties of 3432 failure to perform, penalty 3439 inspect ditches 3438 measure water in ditch 3258 penalty for failure 3258 neglect of duty, penalty 3431 oath of office 3429 one for each district 3427 water commissioners continued. open and shut headgates 3432 owner report failure to receive water to 3351 powers of 3433 prevent waste of water 3438 removal of 3428 removal or suspension of 3345 report of 3350 tabulated by engineer 3348 salary of 3434 how paid 3434 subordinate to whom 3433 supervision over 3324 term of office 3427 vacancy in, how filled 3428 withdraw excess water from reser- voir- ; 3208 water districts, boundaries, district number one 3354 district number two 3355 district number three 3356 district number four 3357 district number five 3358 district number six 3359 district number seven 3360 district number eight 3361 district number nine 3362 district number ten 3363 district number eleven 3364 district number twelve 3365 district number thirteen 3366 district number fourteen 3367 district number fifteen 3368 district number sixteen 3369 district number seventeen 3370 district number eighteen 3371 district number nineteen 3372 district number twenty 3373 district number twenty-one 3374 district number twenty-two 3375 district number twenty-three 3376 district number twenty-four 3377 district number twenty-five 3378 district number twenty-six 3379 district number twenty-seven 3380 district number twenty-eight 3381 district number twenty-nine 3382 district number thirty 3383 district number thirty-one 3384 district number thirty-two 3385 district number thirty-three 3386 district number thirty-four 3387 district number thirty-five 3388 district number thirty-six 3389 district number thirty-seven 3390 district number thirty-eight 3391 district number thirty-nine 3392 jurisdiction of court over 3426 district number forty 3393 district number forty-one 3394 district number forty-two 3395 same 3396 district number forty-three 3397 district munber forty-four 3398 district number forty-five 3399 district number forty-six 3400 district number forty-seven 3401 district number forty-eight 3402 district number forty-nine 3403 district number fifty 3404 district number fifty-one 3405 district number fifty-two 3406 district number fifty-three 3407 district number fifty-four 3408 district number fifty-five 3409 district number fifty-six 3410 district number fifty-seven 3411 district number fifty-eight 3412 district number fifty-nine 3413 district number sixty 3414 district number sixty-one 3415 district number sixty-two 3416 271 water districts continued. water districts continued district number sixty-three .......... 3417 one commissioner for each... 3427 district number sixty-four ............ 3418 what constitutes ... , 3353 Sic' S?fx e :::::::::::: fg!T ' " SS83 SSSSS ?::::::::: SS expense of commissioner, how court number ......................... 3281 paid ................................. 3425 same .................................. 329 jurisdiction of covirt over .......... 3426 water wheel, right to place on new, how formed ...................... 3363 stream .................................. 3180 TOPICAL INDEX TO DECISIONS. Page RIGHT OF WAY Right of private party to condemn 174 Compensation for injury to settler on public domain 174 Congressional Act of 1866 Construed as Granting 174 Condemnation proceedings question of necessity 174 Condemnation proceedings questions to be determined 175 Condemnation proceedings damages 175 Private ditches only subject to enlargement 175 Manner of procuring 176 3165 Rev. Stats, cor strued as conferring 176 As to right of way arising from necessity 176 3167 Rev. Stats, granting right of way modification 176 3172 Rev. Stats, conferring right of way constitutionality of 177 Right to enlarge applies to through ditches only 177 Condemnation proceedings waiver of question of necessity 178 Verified statement under Mills' Ann. Stats., 2264-5, not evidence of title nor constructive notice of 178 Acquired under Rev. Stats. 1868 an easement 178 Right of private party to condemn artificial channel 179 Vesting of for natural stream 179 APPROPRIATION Riparian rights how affected by constitution 179 Riparian rights doctrine of in Colorado 179 Appropriation existence of doctrine 180 Common law adoption of 180 Right of diversion and use guaranteed under constitution 180 Priority recognized by constitution , 180 Appropriation under 3177 Rev. Stats 180 First appropriator extent of right 181 What is an appropriation 181 What constitutes a legal appropriation 181 What constitutes a reasonable time 181 Application to beneficial use 181 True test of 181 Relation doctrine of 182 Right to use of water a property right 182 Property rights in water consists of 182 Domestic use who may appropriate 182 Domestic use under constitution 183 Prior vested rights not affected 5 and 6, article 16, of the constitution. 183 Status of carrier under constitution 183 Damages for injury to prior vested rights 183 Protection of vested rights by act of congress, 1866 184 Protection of vested rights after patent 184 Legislature has power to regulate use affecting appropriations 184 Use must be beneficial 185 Right of priority not dependent upon locus of application 185 Protection of priority rights after patent 185 Respective rights of appropriator on main stream and tributaries ex- tent of application 186 Rights acquired under executed agreement statute of frauds 186 3165 Rev. Stats. right secured thereby 186 Surface drainage use of ,. 187 T'nderflow, subject to 187 Waters of a spring when not subject to appropriation 187 274 APPROPRIATION Continued. Page Seepage water after reaching stream bed, not subject to 187 Passive acceptance of water flowing into canal does not constitute an appropriation 188 Abandoned water subject to 188 Water hoisted from mine subject to 189 Percolating waters what are not 1S9 Waters of tributary reaching the main stream presumption burden of proof , 189 Increase in flow due to personal efforts subject to 189 What is increase water 190 Underflow governed by same rules of law as surface flow 190 Right to enter stream and remove an obstruction 196 Joint filing and construction of ditch separate application of water 191 Change in point of diversion effect on priority 191 Map and statement law unconstitutional 191 Right of carrier to demand bonus 191 Climatic conditions effect of 191 Taxation water mains realty 192 Taxation canals exempt from 192 Taxation ditch used as a means to derive profit not exempt 192 Water right an appurtenance 192 Conveyance of water water right passing as an appurtenance 193 Rules to determine whether or not water right passes as an appurte- nancestare decisis 193 Conveyance of water right statutes of frauds 193 Conveyance of water rights construction of habendum clause in deed of trust 193 Conveyance of water rights sheriff's deed 194 Conveyance of water rights may pass as an appurtenance ., 194 Conveyance of water rights right of purchaser under foreclosure sale. 194 Conveyance of land only does not transfer interest in ditch 194 Conveyance of water rights effect of reservation of reservoir priority.. 195 Abandonment what constitutes 195 Abandonment failure to use presumption 195 Abandonment burden of proof 195 Abandonment applies only to completed appropriations 196 . Abandonment of priority 196 Abandonment matter of intention evidence 196 Abandonment of construction 196 Abandonment re-entry and prosecution after negligence 196 Abandonment evidence of non-user 197 Abandonment of right of review 197 Contracts status of consumer under contract with carrier 197 Contract limitation of application of water to particular lands 197 Contract waiver of priority under 198 Contract measure of rights 198 Contracts refusal of carrier to furnish water right of consumer 198 Contract measure of rights under 198 Contract liability of carrier for failure to deliver water 199 Contracts relation between irrigation company and stockholder 199 Contract making stock do double duty, void 199 Contract rule of interpretation application 200 Contracts status of company organized to take title for benefit of pur- chasers 201 Contract to enlarge right of carriage an easement 201 Contract perpetual right to use of water easement 201 Contract perpetual right to flow in irrigation ditch easement 201 Easement created by 202 Contract with city or town for water works 201 Stream bed use of for reservoir site 202 275 USE OF WATER Page Prorating statute constitutional 202 Constitutional limitation of prorating statute 203 Prorating statute as to decree being in violation* of 203 Appropriators of water through same ditch different priorities 204 Loan statute constitutional 204 Loan statute construction of ; 204 Change in point of diversion questions to be determined 205 Statute regulating change of point of diversion validity of 205 Transfer decree necessity of 205 Shareholder in mutual ditch company may change point of diversion 206 Transfer decree jurisdiction of district court to render from one water district to another 206 Change of point of diversion mining appropriations 206 Change of point of diversion agricultural appropriations 207 Change from one agricultural use to' another 207 Act providing for change of point of diversion constitutional 208 Change of point of diversion limitation application to subsequent ap- propriators 208 Priority for agricultural purposes sale of 208 User of water licensee 209 Use of surface drainage adjoining tracts of land 209 Storage change of place of 209 Priority fqr direct irrigation can not be changed to that of storage 209 Domestic use right of city or town to take under 6525 Rev. Stats 210 Domestic use incident to riparian ownership sale of 210 Use upon larger acreage presumption 210 DUTIES OF OWNERS Damage to property due to escaping water duty to prevent 211 Police power of city extent of 211 Duty of keeping enlarged ditch in repair 211 Duty to furnish headgates under 3255 Rev. Stats 211 Duty of ditch companies to keep highways open under 5829 Rev. Stats. 212 Act of 1887 regulating distribution of water within police power of state 212 RATE OF CHARGE FOR WATER Power of county commissioners to fix rate of charge 212 3262 Rev. Stats. regulating charges constitutional 212 Limitation upon power of county commissioners to fix rate of charge... 213 No appeal from rate fixed by county commissioners 213 Right of purchaser of water under 3264 Rev. Stats. not limited by fact he can procure water from another source 213 Right of prior purchaser under 3264 Rev. Stats. condition precedent.... 214 Duty of carrier to sell under 3264 Rev. Stats 214 Right under 3264 Rev. Stats. continuance of a use already exercised 214 Statute does not impair right of consumer 215 Right of party not consumer to petition under 3263 Rev. Stats 215 Proviso of act under 3263 Rev. Stats, does not contemplate mere op- tions 216 Prosecution under 3273 Rev. Stats. for refusal to deliver water 216 Assessments failure to pay sale of stock 216 See Grand Junction Irr. Co. vs. Fruita Imp. Co 216 ADJUDICATION OF PRIORITIES Nature of adjudication statutes 216 Statutory proceedings in nature of action in rem 217 Irrigation statutes object of 217 Adjudication proceedings who is a party.... 218 Adjudication proceedings character of testimony 218 276 ADJUDICATION OF PRIORITIES Continued. Page Adjudication proceedings character of testimony 218 Decree limited to actual necessity 218 Jurisdiction of district court under constitution and act of 1879-81 to de- termine priorities 218 Jurisdiction of district court exclusive under 3376 Rev. Stats 219 Jurisdiction of district court not subject to collateral attack 219 Jurisdiction of courts of this state to award priorities to use of water for land outside the state . 219 Act of 1879-81 applies to irrigation purposes only 219 Jurisdiction of district court vesting of 220 Jurisdiction of district court exclusive not subject to review under code action 220 Jurisdiction of district court under 3276 Rev. Stats 221 Decree modification of 221 Capacity 'not determining element 221 Questions to be determined in adjudication proceedings for storage pur- poses 222 Reservoir enutled to one filling each season 222 Prior vested rights can not be changed to injury to junior appropria- tor 222 Decree not an absolute verity does not protect claimant from abandon- ment 223 District court authority to give ditch fixed carrying capacity before application to beneficial use 223 District court authority to vacate decree pending review under 3318 Rev. Stats 224 Under statutory proceedings relative rights of co-claimants can not be inquired into 224 Statute of limitation, 3313-14 Rev. Stats., applies to different appropria- tors taking- water from the same stream in different districts 224 Decree embraces rights of consumer and carrier and operates as an estoppel upon consumers in establishing their separate rights 225 Action requesting modification of decree not a proper action for pur- pose of determining rights of parties therein 226 Court power of to determine date of priority of in completed canal 225 Priority based upon map and statement law protected future rights how determined 225 Erroneous decree not subject to collateral attack 226 Decree for agricultural purposes does not include right of storage 226 Rev. Stats. 3202, 3277, 3290, 3349 and 3351 provide for decrees for storage- independent of decrees for direct irrigation 226 Conditional decree vests inchoate right 227 Priorities attached to ditch no attempt to designate owners 227 Decree rendered under acts of 1879-81 riot res judicata as to parties 227 Capacity is res judicata after right of review and appeal have elapsed. 228 Evidence takem before referee when admissible Questions to be determined under 3315 Rev. Stats 229 Supreme court duty of on appeal 229 Time to file proof under 3309 Rev. Stats. extension Statute of limitations does not apply to decree obtained by fraud 229 Statute of limitation does not apply to an original proceeding by party who has never had his day in court 230 Two-year statute of limitation applies only to final and absolute de- 9on crees Statute of limitations applies to actions by one not party to an orig- inal proceeding Modification of a general decree warranted under 3313 Rev. Stats. lim- itations r * Appeals method of taking regulated by 3307 Rev. Stats. not by code. 231 277 ADJUDICATION OF PRIORITIES Continued. Page Appeal time within which it must be prosecuted time of filing tran- script with clerk verification of the statement of appeal applica- tion for review does not waive right of appeal 231 Appeal right of does not apply to consumers but to owner 232 Decrees not appealed from though erroneous, can not be set aside 232 Appeal under 3318 Rev. Stats, must be taken within two years from time of rendering decree 233 Appeals procedure under 3310 Rev. Stats, requiring transcript to be filed within six months 233 Appeals objections should be filed at time decree is rendered 233 Appeal petition for under 3318 Rev. Stats must show a cause of action. 234 Appeals appellate practice bill of exceptions 234 Appeals requirements under 330910 Rev. Stats, are mandatory and jurisdictional requirements 234 IRRIGATION DIVISIONS Act creating and for appointment of irrigation engineers duty of 234 DIVISION ENGINEER Officer de facto appointment not subject to collateral attack 235 WATER COMMISSIONERS Status of under 3407 and 3433 Rev. Stats. not officer of court 235 Duty of under 3432 Rev. Stats 235 Memorandum book kept by water commissioner not a public record ob- ject of 236 Pay of under 3434 Rev. Stats 236 Duty of not required to make division of water between users of same ditch 236 Can not claim compensation for services performed outside his own district 237 IRRIGATION DISTR1CTS- Validity of act of 1901 construction of portion of act notice 237 PLEADINGS, PARTIES AND ACTION'S Quieting title to water right 237 Necessary allegation to quiet title under Mills' Ann. Code, c-22 237 Quieting title possession equity jurisdiction 237 In action to quiet title court has not power to decree change in point of diversion 238 Injunctive relief sufficiency of complaint 238 PLEADINGS, PARTIES AND ACTIONS Necessary parties to suit seeking to enjoin a water commissioner from diverting water loaned 238 Limitation of action under 4073 Rev. Stats 238 Complaint under 3232 Rev. Stats, is fatally defective which fails to show water so loaned yill be used without injury to later priorities 239 Decree when res judicata when not a bar ' 239 Injunction proceedings necessary parties 239 Right to intervene under section 22, Mills' Ann. Code 240 Preliminary injunction purpose of 240 Action to quiet title can not be maintained by administrator 240 STATUTORY CONSTRUCTION, REVISED STATUTES 1908. Sec. Page 3307 Time within which to prosecute an appeal verification of statement.. 231 Regulating method of taking appeals 231 Right of appeal under applies to owners qualifications 232 3309 Adjudication time for filing proof extension 229 10 appeals requirements are mandatory and are jurisdictional require- ments 234 3310 Time of filing transcript with clerk of supreme court 231 Requiring tr? nscript to be filed within six months procedure under... 233 3313 Four years statute of limitations reason of 217 3314 Statute of limitations appropriators taking water from same stream in different districts subject to 224 Statute of limitations does not apply to a decree obtained by fraud.. 229 Statute of limitations does not apply to an original proceeding by party who has never had his day in court 230 Applies to actions by one not a party in original proceedings 230 Statute of limitations modification of decree under 231 3315 Court may make rules, etc. questions to be determined thereunder... 229 3318 Abandonment of right to review 197 Authority to vacate decree pending review 224 Two-year statute of limitations applies only to final decrees 230 Application for review under does not waive right of appeal 231 Appeal must be taken within two years from time decree is rendered in such proceeding 233 Petition for appeal must show cause of action 234 3335 Abolishes superintendent of irrigation creates irrigation divisions and provides for appointment or irrigation engineers 234 3334 Duty of irrigation division engineer 235 3376 Jurisdiction of court exclusive under 219 3407 and 3433 status of water commissioner under 235 3432 Duty of water commissioner 235 4073 Statute of limitations limitations of actions 238 3434 Pay of water commissioner 236 4231 Water hoisted from mine, subject to appropriation 189 5540 Water mains in public streets realty for purpose of taxation 192 5829 Duty of ditch companies to furnish headgates 212 6525 Domestic use for city or town right of city or town to purchase or erect water works 210 3165 Right of way construed as conferring 176 Secures right to divert for irrigation purposes 187 and 3232 use of stream bed as reservoir site 202 3167 Granting right of way modified by act of 1881 176 3170-1-2 Only private ditches subject to enlargement 176 Conferring right to enlarge applies to through ditches only 177 3172 Right of way manner of procuring 176 3172 Constitutionality of 177 3175 Prorating statute constitutionality of 202 3177 Appropriation under 180 Use of surface drainage not appropriation thereunder 187 Seepage water having reached stream bed not subject to appropria- tion thereunder 187 3202, 3277, 3349 and 3351 Provision thereunder for decrees for storage 226 3226 Regulating change of point of diversion validity of 205 Shareholder in mutual ditch may change point of diversion thereunder 206 and 3231 Change point of diversion constitutionality of 208 280 Sec. Page 3230 Jurisdiction court transfer decree 206 3232 Loan statute constitutionality of 204 Loan statute construction of 204 Complaint under 239 3233-3238 Duty of owners under 211 3239 Contract limiting application of water upheld thereunder 197 3255 Duty of canal companies to furnish headgates 211 6-7-8-9 Regulation of the distribution of water within police power of state 212 3262 Regulating charges constitutional 212 3263 Party not consumer may petition for rate 215 Proviso of act construed 216 3264 Right of purchaser of water under 213 Condition precedent to right of purchase 214 Duty of carrier to sell .' 214 Does not repeal 992 Rev. Stats., 1908 214 Not repealed by aot of 1887 215 3265 Limitation of power upon county commissioners to fix rates 213 3271 2-3-4-5 Anti-royalty statute construction of 215 3273 Prosecution under for the refusal to deliver water 216 3276-3320 Omitting 3280-83 applies to irrigation purposes only 219 3290 Irrigation statutes object of 217 3276 Jurisdiction of court 221 3284 and 3290 Reservoirs entitled to but one filling each season 222 ALPHABETICAL INDEX. Page ABANDONMENT What constitutes 195 Failure to use presumption 195 Burden of proof 195 Applies only to completed appropriations 196 Of priority 196 Of construction 196 Re-entry and prosecution after negligence 196 Matter of intention evidence 196 Evidence of non-user 197 Right of review 197 Decree does not protect claimant from 223 See appropriation 195 APPEALS Method of taking 231 Time within which it must be prosecuted 231 Right does not apply to consumer, but to owner limitation 232 Under 3318 Rev. Stats 233 Procedure under 3310 Rev. Stats 233 Objections 233 Petition for must show cause of action 234 Requirements under 3309-10 Rev. Stats 234 Appellate practice bill of exceptions 234 Duty of supreme court 229 ASSESSMENTS Failure to pay sale of stock 216 See rate of charge for water ! 216 CARRIERS See Rate of Charge for Water... 212 See Contracts 197 See Constitutional Construction 183 CHANGE OF POINT OF DIVERSION Validity of act regulating same 205 Mining appropriations 206 Agricultural appropriations 207 Act providing for constitutional 208 Limitation application to rights of subsequent appropriators 208 Questions to be determined 205 Transfer decree necessity of 205 Change from one agricultural use to another 207 CONDEMNATION PROCEEDINGS Right of private party to condemn 174 Question of necessity 174 Questions to be determined 175 Waiver of question of necessity 174 Damages 175 Compensation for injury to settler on public domain 174 See right of way ; 174 Right of private party to condemn artificial channel for natural stream. 179 282 CONVEYANCES OF WATER RIGHTS- Page Water right passing- as an appurtenance 193 May pass as an appurtenance 194 Rules to determine whether or not water right passes as an appur- tenance 193 Statute of frauds 193 Construction of habendum clause in deed of trust 193 Sheriff's deed 194 Right of purchaser under foreclosure sale 194 Conveyance of land only 194 Effect of reservation of reservoir priority in deed 195 See appropriation 193 CONSTITUTIONAL CONSTRUCTION Sec. Art. Page 3 10 Canals exempt rrom taxation unaer 192 5-6 16 Do not affect prior vested rights owners are entitled to com- pensation before same can be taken 183 5 16 Right of diversion and use guaranteed under 180 6 16 Domestic use under that of riparian owner for himself, his fam- ily and stock : 183 6 16 Loan statutes not, in violation of 204 7 16 Guarantees right of private party to condemn a right of way for ditch to convey water for domestic, mining and agricul- tural purposes 174 8 16 Use must be truly beneficial 185 8 16 Status of carrier not for proprietor of water diverted 183 8 16 Defining powers of county commissioner to fix rate 212 11 16 Jurisdiction of court to hear and determine water priorities 218 21 25 Map and statement law unconstitutional thereunder 191 CONTRACTS Status of consumer under contract with carrier 197 Limitation of application of water 197 Waiver of priority under 198 Measure of rights 198 Refusal of carrier to furnish water 198 Liability of carrier for failure to deliver water 199 Relation between irrigation company and -stockholder 199 Making stock do double duty , 199 Rule of interpretation application 200 Status of company organized to take title for benefit of purchasers 201 To enlarge right of carriage an easement 201 Perpetual right to use of water an easement 201 Perpetual right of flow in irrigation ditch an easement 201 With town to construct water works 201 See Appropriation 197 CLIMATIC" CONDITIONS Effect of 191 CONSTRUCTION OF CONGRESSIONAL ACTS Act of 1866, Sec. 9 proviso of compensation for injury 174, 184 Act of 1866, Sec. 9 without proviso construed as granting right of way... 174 Act of 1870 Amendatory of Act of 1866 184 COMMON LAW Adoption of 180 COUNTY COMMISSIONERS See Rate of Charge for Water 212 283 COURTS Page Jurisdiction of 219 DAMAGES See Duties of Owners 211 See Right of Way 174 See Condemnation Proceedings 175 DECREES Res judicata under claim of abandonment 196 For agricultural purposes does not include right of storage 226 Rendered under Acts of 1879-81 not res judicata as to parties 227 Not appealed from though erroneous cannot be set aside 232 Limited to actual necessity 218 Modification of 221 Not an absolute verity does not protect claimant from abandonment.. 223 Embraces rights of consumer and carrier and operates as an estoppel upon consumers in establishing their separate rights 225 Action requesting modification of decree not a proper action for pur- pose of determining rights of parties therein 225 Modification of under 3313 Rev. Stats. limitations 231 Transfer decrees necessity of 205 See Adjudication of Priorities 216 See Change of Point of Diversion transfer decree 205 DOMESTIC USE- Who may appropriate 182 Under constitution 183 Right of town or city to take under 6525 Rev. Stats 210 Incident to riparian ownership sale of 210 See Appropriation 210 DEED See conveyance of water rights 193 EASEMENTS Right of way under Rev. Stats. 1868 178 See Contracts 201 Easement created by 202 Irrigation Divisions 234 Irrigation Division Engineer 235 Irrigation Districts. 237 LOAN STATUTE Constitutionality of .204 Construction of '. 204 LIENS Statute creating 132 LIMITATIONS-STATUTE OF Does not apply to decree obtained by fraud 229 Does not apply to an original proceeding by party who has never had his day in court 230 Two-year statute of limitation applies only to final and absolute decrees 230 Four-year statute of limitations applies to actions by one not a party to an original proceeding 230 MEASUREMENT OF WATER Statutory inch 133 284 PRORATING STATUTES Page Constitutionality of 202 Constitutional limitation of 203 As to decree being in violation of 203 PROPERTY RIGHT Use of water consists of 182 RIPARIAN RIGHTS- HOW affected by constitution 179 Doctrine of in Colorado 179 Domestic use instant to riparian ownership 182 RELATION- , Doctrine of 182 STREAMS Right to enter stream and remove obstructions 190 Right to use stream bed as reservoir site 202 STATE OF KANSAS V. STATE OF COLORADO Opinion of U. S. Supreme Court 134 .TAXATION' Canals exempt from 192 Ditch used as a means to derive profit not exempt 192 Water mains in public streets realty for purpose of 192 See Constitutional Construction 192 WATER WORKS Power of city or town under 6525 Rev. Stats., page 1511. to purchase or erect water works 240 WATER User of licensee 209 User of surface drainage 209 INDEX TO ACTS PERTAINING TO IRRIGATION PASSED BY 1 7th GENERAL ASSEMBLY. Page. Drainage districts 1 Irrigation districts 19 Irrigation districts, priority of right 23 Irrigation districts, college and school lands 26 Act to establish county of Jackson .. 29 UNIVERSITY OF CALIFORNIA LIBRARY, BERKELEY THIS BOOK IS DUE ON THE LAST DATE STAMPED BELOW Books not returned on time are subject to a fine of 50c per volume after the third day overdue, increasing to $1.00 per volume after the sixth day. Books not in demand may be renewed if application^ is made before expiration of loan period. MAR 1 1923 20?n-l,'22 ' 38 1 Ot. 280200 UNIVERSITY OF CAUFORNIA LIBRARY