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<br />001109
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<br />distriot No. 10, adjudioated to be No. 32, and said original pipe line was
<br />then in like manner adjudicated to be No. 1 on Ruxton creek, and that there are
<br />thirty-one appropriations of water upon said Fountain creek that are prior to
<br />the defendant's said ditch, which are of oapaoities suffioient in times of soaroity
<br />to take all of the waters of said creek fbr agrioultural purposes; so that in
<br />order that defendant have the use of water When it needs it, it InUfJt to a great
<br />extent interfere with said appropriations that are prior te its ditch and pipe
<br />lines, and inoluding the said water-rights to plaintiff.
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<br />"10. That the defendant has oontinuously, inoluding the months from .April
<br />to Ootober of eaoh year, sinoe the year 1871 to the present year, taken from the
<br />waters of sa id Fountain oreek, through its said El Paso Courrty oanal, water
<br />to the oapaoity of said oanal, and also has taken continuously through its said
<br />original pipe line of the water of said Ruxton creek oontinuously sinoe the
<br />year 1878, waters to the full oapaoity of said original pipe line, ola:iJning it
<br />had a right so to do, and though the plaintiff and other prior appropriators of
<br />waters of said Fountain creek have been, to a greater or less degree, for and
<br />during eaoh of said periods, injuriously affeoted thereby, they have failed to
<br />objeot thereto and to assert any prior rights of appropriation he er they had to
<br />the water so taken by the defendant, yet said persons, inoluding the plaintiff,
<br />nOW' olaim damages therefor of the defendant, and the full !llIlOunt of their respeot-
<br />ive original appropriations. without diminution of the amounts so taken and
<br />appropriated by the defendant, which defendant will pay to them unless enjoined
<br />by this court.
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<br />,
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<br />"11. That many of the persons holding priori ties upon said Fountain oreek
<br />over the defendant, and who are injuriously affected by defendant's said appro-
<br />priation of water, do not take, and never have taken, through their respeotive
<br />canals or ditches, water to the amount decreed to them in and by the decree
<br />aforesaid, beoause either that their said ditches are not of sufficient capacity
<br />to carry such deoreed appropriation, or that sufficient water has not been con-
<br />tained in the said creek to supply the amounts so decreed, or that such person
<br />has not had under cultivation sufficient land to receive such decreed amount
<br />of water; yet, nevertheless, suoh persons demand of the defendant damages upon
<br />the full decreed amount of their respeotive appropriations, and, unless res-
<br />trained by this honorable court, the defendant will settle damages upon such
<br />basis.
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<br />"12. That the defendant has been negotiat~ for and is about to purohase some
<br />of the water-rights for agricultural irrigation. purposes that are prior to the
<br />defendant's ditoh and pipe line, with the view of taking the water belonging
<br />to suoh prior water-rights through its said ditoh and pipe line for the use of
<br />its inhabitants.
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<br />'.
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<br />"13. That defendant is about to negotiate for such of said water-rights as
<br />are prior to its pipe line and its ditch, under and pursuant to subdivision 73
<br />of section 3312 of the General Statutes, upon the basis that such priorities as
<br />it so settles for', either by oonsent or condemnation, deprives such prior appro-
<br />priator of all his right, title, claim and priority in and to the waters of
<br />said Fountain oreek, and by suoh settlement defendant will pay to suoh prior
<br />appropriators sums of money greatly in exoess of what it would pay by settling
<br />with suoh prior appropriators, upon the basis that by such settlement or con-
<br />demnation the said rights remain intact, subjeot only to diminution to the
<br />extent of defendant's uses."
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