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<br />001087 <br /> <br />. <br />" <br /> <br />The former aot (S. L. 1881, page 142, et seq.), provides for ad- <br />judicating water rights for irrigation purposes. Without analyzing the several <br />sections, it may be said that the act recognizes that appropriations of water <br />.1'01' irrigation by means of a reservoir and appropriations or water ror irriga- <br />tion by means of ditches are upon an equality. and that they shall hs.ve <br />priority according to the dates of the respective appropriations. without any <br />distinction between the two methods of aooomplishing the purpose of the appro- <br />priation, namely, the application of the water to the soil. The adjudication <br />prooeeding oulminates in a deoree, which the aot provides 'lshlll1 further number <br />eaoh several appropriation of water oonseoutively, beginning with the oldest <br />appropriation. without respeot to the ditohes or reservoirs by means of whioh <br />such appropriations were made." (Italics are mine.) Seotion,7 repeals all <br />laws and parts or lav,s inoonsistent With the prOVisions of the aot. <br /> <br />The inconsistency of the 1879 provision with the Act of 1881 is <br /> <br />c <br /> <br />obvious. <br /> <br />, , <br /> <br />The Act of 1887 (S. L. 1887, page 295, et seq.) requires (section 2) <br />that the superintendent of irrigation shall "execute the laws' of the state <br />relative to the distribution of water in aocordance with the rights of <br />priority of appropriation. as established by judicial decrees." (ItaliCS are <br />mine.) See also section 9. Section 10 provides that if the division super- <br />intendent of irrigation shall ascertain that "any ditch, canal or reservoir <br />of any other district of his division is receiving water to whioh any ditoh, <br />oanal or reservoir of any other district is entitled. he shall at once order <br />the s hutting down of the post-dated di tohes, canals or reservoirs, and the <br />water given to the ditches, canals or reservoirs having the priority of appro- <br />priation." (Italios are mine.) <br /> <br />. ~ <br /> <br />The provision of the 1879 Act is inconsistent with these provis ions. <br /> <br />The provJ.sJ.on of the Act of 1879 under consideration in this pro- <br />ceeding is so inconsistent with the Acts of 1881 and 1887 as clearly to be <br />repealed by implication. <br /> <br />3- If the provision in question were capable of no construction <br />other than that contended for by the defendants in error, and if it has not been <br />impliedly repealed by subsequent legislation. it is in conflict with the Colo- <br />rado Constitution and therefore is void. <br /> <br />. <br /> <br />Section '5 of article "l:fl provides: "The water of every natural <br />stream, not heretofcre appropriated, within the state of Colorado. is hereby <br />declared to be the property cf the public. and the same is dedicated to the use <br />of the people of the state, subject to appropriation as hereinafter provided." <br /> <br />Section 6 of the same article providesl "The right to divert the <br />unappropriated waters of any natural stream to beneficial uses shall never be <br />denied. Pricrity of appropriation shall give the better right as between <br />those using the water for the same purpose; but when the waters of any natural <br />stream are not sufficient for the service of all those desiring the use of the <br />same. those using the water for damestic purposes shall have the preferenoe <br />over those claiming for any other purpose, and those using the water for agri- <br />cultural purposes shall have preference over those using the same for manufact- <br />uring purposes.~ (Italics are mine.) <br /> <br />) <br /> <br />"'1- <br />