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

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On the other hand, the plaintiff is just as insistent that its complaint does not in any way seek to change, alter or modify any decreed water right, and that it is seeking relief only against the defendants in their official capacity, and it expressly so states at pages 2, 3 and 4 of its brief: "It is apparent from defendants' brief that counsel have misconceived the nature and object of the present action, and much as counsel would like to make it appear so, this is not an action to set aside, modify or change any adjudicated decreed water rights or to adjudicate or to re- adjudicate the same. On the contrary, as appears from the amended complaint, this is an action against the water officials alone for nonfeasance and misfeasance, for the subject matter of this suit is not to adjudicate water rights under the statute but to protect them." "In other words, this is an action to compel the water officials to maintain the conditions on the stream as they existed at the time plaintiff and others similarly situated made their appropriations." "A reading of the complaint fairly presents this issue, and any question of abandonment and non -use by lower appropriators down the stream is not involved, the only question being presented to the Court is, have the water officials by their actions changed the condition of the stream as they existed at the time plaintiff and others similarly situated made their appropriations and thereby acquired vested rights in having the condition of the stream remain the same as it was when they made their appropria- tions. This question must be answered by the Court after hearing the testimony presented in support of the allegations of the complaint." "Pursuing a mistaken theory 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 and canals in Water Districts 14, 17, and 67, even if this was a correct conclusion, which plaintiff does not admit, and this action could be termed one for abandonment for non -use, it would not necessarily follow that this court is without jurisdto tion." If the position taken 'by the defendants is the correct one, then the motion should be granted. The plaintiff admits the correctness of the defendants' argument - once the premise is granted but denies that the relief it is seeking would in any way affect decreed water rights- and has expressly limited itself in that respect by the statements in its brief. From which, it naturally follows that in any proceedings hereafter the plaintiff would be limited to that construction of its complaint. This declaration on the part of the plaintiff is and would be full protection to the defendants against those things of which they complain. We come, then, to the question as to whether or not the plaintiff has any cause of action under its theory of the relief sought by its complaint, of which it should be permitted to offer proof. Among other things the complaint charges that the defend- ants are wrongfully permitting the owners of the Clear Creek, Sugar Loaf and Twin Lakes reservoirs to impound and discharge water from said reservoirs in excess of their decreed rights; and that the method of transporting such storage waters from said 2-