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

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above mentioned, and that by reason of the premises the farming and cultivation of land for a distance of about two hundred (200) miles westerly from the Colorado - Kansas Line eras, and until the last few years, continued to 'be confined to comparatively small tracts and areas, but that nevertheless, numerous canals and ir- rigation companies and corporations operating at and below the City of Pueblo in said Water Districts Nos. 14, 17 and 67, pro- jected large irrigation enterprises and filed upon and laid claim to many large priorities of right to the use of the waters of the said Arkansas River for irrigation purposes and applied for and obtained in the Courts of said Water Districts Nos. 14, 17 and 67, decrees awarding to their ditches and canals priorities of right to large quantities of the waters of the said River, with earlier dates for such priorities than the dates awarded the priorities of right to the use of said waters awarded and decreed to the ditch of this plaintiff company as hereinbefore stated, and to numerous other priorities of right to the use of said waters awarded and decreed to many other ditches in said Water Districts Nos. 11 and 12 for irrigation purposes. 12. That notwithstanding the decrees awarded as aforesaid to many ditches and canals in said Water Districts Nos. 14, 17 and 67, the claimants and users of water under the priorities therein specified did not for a period of, to -wit, more than thirty (30) years from and after the dates of the priorities of right given by said decrees, divert from said River or put to any actual or beneficial use under said priorities any more than a small fraction- al part of the maximum quantity of water specified in said decrees at any time during the normal stages of the flow of water in said River and its tributaries, and because of that condition only a comparatively small acreage and limited areas of the lands lying under the ditches and canals in said Water Districts Nos. 14, 17 and 67 was farmed, cultivated or irrigated, and a large portion of the lands lying under said Ditches and canals in said Districts Nos. 14, 17 and 67 were for many years after the rendition of said decrees a part of the Public Domain and were unoccupied, unimprov- ed public lands of the State of Colorado and the United States of America, and the water distributing officials of Water Division No. 2 of the State of Colorado were not called upon to interfere and did not interfere with the use of the waters of said River and its tributaries under the priorities of right awarded and decreed as hereinabove stated to the Ditch of this plaintiff company and other ditch and water users in Water Districts Nos. 11 and 12. 13. That by reason of the premises the waters of said River and its tributary streams were for a period of more than forty -five (45) years constantly and continuously diverted and used benefi- cially for the purpose of irrigation to the full extent and amount of the junior priorities of right awarded and decreed to the ditches in said Water Districts Nos. 11 and 12 and under the priorities of right so awarded and decreed to the ditch of this plaintiff company and to other ditch and water users in said last named water districts, and that such constant and continued use of said water for irrigation purposes upon the agricultural lands in said Water Districts resulted in and caused and is still causing a storage and accumulation of large quantities of water in the soil of the valleys along and adjacent to said River and its Tribu- tary streams in said Water Districts Nos. 11 and 12, and that as such storage and accumulation of water in the soil of the said valleys gradually increased the said waters began to return to said River and its tributaries in the form of seepage and percolating waters and that such returning waters continued to run back into said River and its tributaties constantly during the summer and fall months of each year, and still continues so to do, in gradual- ly increasing quantities and has resulted and caused and still does result and cause a substantial annual increase in the normal summer and fall flow and volume of water in said River and its tributaries. ..!{.