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<br />001108 <br /> <br />The agreed statement of faots is as follows: <br /> <br />"1. That the defendant is a munioipal oorporation, being 8. oity of the <br />seoond olass of this state, and has and maintains a system of water-works for <br />the purpose of furnishing, end through whioh it furnishes, its inhabitants <br />with water. <br /> <br />"2. That the plaintiff is a citizen and tax-payer of the oity of Colorado <br />Springs. and an owner of a water-right for irrigation purposes upon the Fountain <br />oreek hereinafter :mentioned that is prior in right to a:ny appropriation of <br />water made by the defendant, and whioh is impaired by the defendant's appropriatiem <br />of water. <br /> <br />"3. That heretofore, in the year 1878. defendant construoted a pipe line <br />and a reservoir and supplied and still supplies them with water from Ruxton creek, <br />above the town of 1.lanitou. and that in the year 1889. to supply the inoreased <br />wants of its inhabita:nts, defendant greatly enlarged the oapaoity of said <br />pipe line, reservoir and water~orks system, and to supply them now requires <br />about million gallons of water daily, and exoeeding the flow of water in <br />said 1riiX'E"0n creek; that the waters of the Ruxton and the Fountain creek now <br />together in the town of J.Ia.nitou, and that the waters of said oreeks at their <br />junction are naturally of about equal volume. That said Ruxton oreek is about <br />five miles in length and is fed and formed by a number of stre!UllS coming together <br />above the plaoe of intal'e of defendant's pipe line, all of which is substantially <br />shown by the map herewith filed. <br /> <br />"4. That defendant has, for the purpose of supplying its said water-works, <br />the first priority of water-rights upon said Ruxton oreek. but that there are <br />upon the Fountain creek. belOl'l the point where said Ruxton oreek and Fountain <br />oreeks flow together. a great number of water-rights for irrigation and ranoh <br />purposes. prior to defendant's right upon said Ruxton creek. suffioient to take <br />all the waters of Fountain oreek after reoeiving the waters of Ruxton oreek. <br /> <br />"5. That defendant takes and will oontinue to take, for its use. substantially <br />all of the waters of Ruxton oreek. so that no waters of Ruxton oreek will reaoh <br />the Fountain oreek. <br /> <br />. <br /> <br />"6. That. in addition to the said pipe line. said defenliant is the owner of <br />a oertain di toh or oanal, known as the El Paso County canal. Which takes water <br />direotly from the said Fountain creek for the use of its inhabitants. <br /> <br />"7. That defendant requires both the said pipe line and the said ditoh to <br />furnish the neoessary supply of water for the use of its inhabitants. <br /> <br />"8. That the water taken from Ruxton creek aforesaid through defendant's <br />pipe line is continuously used by its inhabitants. thrOUgh its hydrants. for <br />oulinary, drinking. general household purposes. sprinkling lavcns and streets, <br />in business houses, livel1;'stables, etc.. while the water taken through said <br />ditoh or canal is used by defendant to irrigate lll\flle. !larke. trees upon its <br />streets, small gardens, truok patohes. etc., oontinuously from April to Ootober <br />of eaoh year. <br /> <br />"That the defendant's said ditoh was by the district oourt of El Paso county <br />in the year 1882, in the adjudioation of the priorities of water-rights of water <br /> <br />-2- <br />