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<br />001055 <br /> <br />THOMA.S v.. GUIRAUD ET AL. <br /> <br />1. The doctrine of priority of right to water by priority cf appropriation <br />thereof for a beneficial purpose. with the modifications declared by the con- <br />stitution. is and always has been in foroe in this state. The loous of its <br />application does not in anyway affeot the dootrine. <br /> <br />2. The true test of appropriation of water is the suooess:f.'ul applioation thereo..:' <br />to the benefioial use designed; and the method of diverting or carrying the <br />seme. or making such applioation, is immai;erial. <br /> <br />Error to Distriot Court of Park County. <br /> <br />The faots are sufficiently stated in the opinion. <br /> <br />Mr. A. 11. BRAZEE and 111:'. \iEBSTER BAI.J..INGER. for plaintiff in error. <br /> <br />Mr. C. A. YlILKIN and LIr. R. D. THOMPSON. for defendants in error. <br /> <br />HELli. J. The pleadings and evidence in this case fairly sustain the following <br />ocnolusions of faot, Vihl That in 1862,Adolph Guiraud, anoestor cf defendants <br />in error, settled upon lands adjaoent to Trout creek; that by means of dams and <br />other oontrivanoes, he then "b..Irned or diverted water from said stream sufficient <br />to irrigate a portion of said lands. and cultivai;ed hay and other crops thereon; <br />that during or before the year 1870, he made a second diversion of wai;er by means <br />of a ditch. and cultivated another tract of land therewith; that these diversions <br />inoluded all of the water ordinarily flowing in said stream, but were not greater <br />in quantity then was reasonably neoessary for the purpose designed; and that they <br />have been oontinued since the dates therecf. either by said Guiraud or by def- <br />endants in error. who are his heirs at law; that in August, 1873. plaintiff in <br />error begun the construction of a ditch above the said lands of defendants in <br />error, end in May, 1874. complei;ed the same and diverted water from Trout creek <br />therethrough for the purpose of irrigating lands clained by him under a preemption <br />filing; that said landR were not upon Trout creek. but were adjll.llent to another <br />stream. <br /> <br />That in the year 1879. plaintiff in error was diverting through his ditoh <br />aforesaid from one-half to two-thirds of the whole volume of water in Trout creeka <br />that defendants in error were unable to prooure water from said stream to the <br />extent of their anoestor's diversion thereof. and in consequence were dllJIlAged <br />and were threatened with irreparable injury. <br /> <br />We have reoently held that the dootrine of priority of right to water by pri- <br />ority of appropriation thereof for a benefioial purpose. with the modifications <br />deolared in the oonstitution. is and always has been in foroe in this state. <br />We have also deoided that the loous of its applioation does not in arry way affeot <br />the dootrinel and that a prior appropriator of water is entitled to it as again- <br />st a subsequent settler upon the stream from which it is taken, although he oarries <br />it aver an intervening divide and uses it to oultivate lands adjaoent to another <br />stream. Coffin v. Left Hand Ditch Co. (ante. p. 442) <br /> <br />-1- <br />