Case No. 3345 Fourth Amended Complaint and Related July 24 1942

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STATE OF COLORADO SS. COUNTY OF CHAFFEE THE SUNNYSIDE PARE DITCH COMPANY, Plaintiff, VS. M. C. HINDERLIDER, as State Engineer of the State of Colorado; C. W. Beach as Irrigation Division No. 2 of the State of Colorado, and J. A. Burnett, as Water Commissioner for dater District No. 11 of the State of Colorado, Defendants. IN THE DISTRICT COLMT No. 3345 ORDER ON MOTIONS OF DEFENDANTS This matter coming on for hearing on the 14th day of August 1943, upon the defendants' motions to strike the Fourth Amended Complaint and also their motion for an order requiring plaintiff to join additional parties defendant, and the parties,' by their respective counsel, stipulating in open court to submit said matters by written briefs, and the Court having granted defendants' counsel thirty days for filing their brief, and the plaintiff thirty days thereafter for filing its answer brief, and the defendants an additional fifteen days for reply brief And said briefs having been filed and the Court having read and considered them and being fully advised in the premises, the Court finds: That the briefs submitted by defendants' counsel in support of their motions, and brief of the plaintiff in opposing said motions, present views so opposite as to what relief is sought by the plaintiff in its complaint as to render them of little help in deciding the questions involved, unless one or the other of these divergent and irreconcilable views is adopted to the exclusion of the othef. Counsel, it seems to the Court, are contending, not so much to maintain a single definite issue of law as they are asking the Court to decide which of these two opposite views of the relief sought by the complaint is the right one. Defendants contend that the relief sought by the complaint, according to their view, is of such a character that it would be impossible to grant it without running counter to the irrigation laws of the State and disturbing adjudicated water rights After setting out the substance of the five causes of action in the complaint the defendants' brief is an argument in support of the position that they have taken as to the relief sought, and in their brief, at the bottom of page S and top of page 9 they says, "It will be borne in mind that the first cause of action shows upon the face of the pleading that it is an attack upon all priorities of right to the use of water awarded and decreed to all ditches or canals in Water Districts Nos. 14, 17 and 67, which are senior in point of time to the priority date of January 3, 1584, awarded to the plain- tiff's ditch. An inspection of the pleading of the first cause of action shows that in effect the pleader is attempting to set aside, nullify, impair'. or modify the decreed awards of priorities of right to the use of water to all appropriators in Water Districts Nos. 14, 17 and 67, which are senior in point of time and superior in right to the priority claimed to have been awarded to the plaintiff's ditch." -1-