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<br />0010 G 8 077-19-91581-IlR.. COLORADO VfATER CONSERVATION BOARD <br /> <br />67 - COLO~O__-:'290 <br />No. 8960 <br /> <br />GERMAN DITCH .AND RESERVOIR COI1PANY <br /> <br />v. <br /> <br />PLATTE VALLEY IRIUGATION COl,lP.ANY ET AL. <br /> <br />~ <br /> <br />1. WATER RIGHTS-Priorities-Effect of Adjudication. After <br />the lapse of the statutory limi tati ons the right decreed <br />in an adjtrlication proceeding becone s absolute. A <br />superior right by prescripti on, in derogation of the <br />statutory provisions, is not to be asserted by one who <br />had full opportunity to be heard in the statutory pro- <br />ceeding . <br /> <br />j <br />.., <br /> <br />2. Tributary Streams, are not to be appropriated to the <br />injury of a prior appropriator on the main stream. <br /> <br />ERROR TO DENVER DISTRICT COURT, HON. JOHN A. PERRY, JUDGE. <br /> <br />Mr. George S. Redd, Mr. Edwin H. Park, Mr. Thomas H. Gibson <br />for Plaintiff in error. <br /> <br />Messrs. GOUdy, Twitohell and Burkhardt, Mr. H. R. Kaus, <br />Messrs. Smith, Brock and Ferguson, hIre R. F. Armstrong, <br />for Defendants in error. <br /> <br />Mr. Justice Bailey delivered the opinion of the courts <br /> <br />PLAt NTIFF below, plaintiff in error here, brought suit against <br />the principal appropriators and users of water for irrigation purposes <br />in Hater District No.2, representative, as is alleged, of all suoh users, <br />to quiet its purported ti tle and right to the use, for irrigation pur- <br />poses, of' the waters of Big Dry Creek, in that district, and to enjoin <br />defendants from in any manner interfering w.i.th its alleged right to such <br />use. After issue jcined defendants interposed a motion for judgment on <br />the pleadings, which was granted, and plaintiff brings that judgment <br />here for review. <br /> <br />The theory of plaintiff is that we.ter rights in this state, <br />being in the nature of real property, a suit to quiet title thereto, <br />based upon prescription and adverse use, can properly be maintained. In <br />a former suit, in re Garman Ditoh and Reservoir Company, 56 Colo. 252, <br />1.39 Pac. 2, plaintiff in this action, together with other users of water <br />from Big Dry Creek, had instituted adjudioation proceedings to have <br />priorities deoreed to these waters, upon the theory that the creek was <br />an independent source of supply, not a natural stream, and not tributary <br />to the South Platte River. This court in that case, on review, held <br /> <br />-1- <br />