Contrast Between the US Irrigating Company, et al. and the Graham Ditch Company, et al.

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shall not be asserted in priority .thereto, but nothing herein con- tained shall prevent a change of diversion or use of water by the second parties under their priorities claimed, decreed or to be de- creed, provided such change or use does not exceed the maximum volume ,of the said priorities as so decreed. The parties of the second part signatory hereto hereby agree that they will not apply for or claim priorities antedating the commencement of said suit on the stream known as the Picketwire or Purgatory or on the Arkansas River for the waters of the Picketwire or Purgatory at any point between the mouth of said Picketwire or Purgatory and the State line fbr stora -e purposes as against the hereinbefore described rights of the parties of the first part, or either of them. IV. Neither the parties of the first part, nor either of them, will henceforth institute any suit or suits against the parties of the second part or any or either of them, or their predecessors in interest, except as hereinafter provided, for the purpose of establishing any rights of priorities to the waters of the Arkansas River of date prior to the said 27th day of August, 1910 and if by reason of being im- pleased or otherwise, the parties of the first part or either of them shall become involved in any litigation to which the parties of the second part, or any or either of them, or their successors in interest, or the successors in interest of any or either of them,are parties, and in such litigation shall establish any right or priority prior to said date, then the party of the first part so involved in such liti- gation shall not attempt to maintain or enforce such priority as against any of the parties of the second part, nor against their successors in interest, and should they or either of them hereafter assert any right against the second parties or any or either of them, or against their successors in interest, as of said date, or a later date, contrary to the terms of this contract, second parties or any or either of them, or their successors in interest, shall have a right to set up or plead this contract, and also any and all other defenses which they may have to the claim so asserted. In case of any suit, action or proceeding of whatsoever nature or in whatsoever court brought, pending or deter- mined, in which The Kearny County Farmers! Irrigation Association shall be interested, having for its purpose the adjudication of any priority of right to the use of the waters of the Arkansas River, any decree entered shall be subject to the provisos designated as (a), (b) and (c), attached to Paragraph III of this contract, in all re- spects the same as if said provisos were repeated in this, the IVth paragraph hereof, and the rights of said last named association, whether decreed or otherwise, shall always be so limited by said provisos. V. Under the Constitution and laws of the State of Colorado, appropriators of water within the state claim to be entitled to divert the same according to the priority of their appropriations, and the status of appropriators from the Arkansas :4i.ver in the • 15 -