WSPC03286 - Laserfiche WebLink

Home Browse Search

001063 077-19-.91581-MR - COLORADO .rATER CONSERVATION BOARD that the stream was a tributary to the river, and that the waters of that oreek were subjeot to the priorities alrea~ adjudicated upon the river and its tributaries. In adjudicaticn prooeedings under the statute, in 1883, defendants were allowed priorities on too South Platte which will be adversely affected if plaintiff be now awarded title to and a right of use, paramount to their rights, of too Big Dry Creek water as prayed. , ~ It is definitely and firmly settled that the distribution and use of water in this state is subjeot to and oontrolled by the dootrine of appropriation. A statutory proceedings is provided for the determination of suoh right of use, the fundamental principle of which is that the one who is "First in time, is first in right." Af'ter the lapse of the two and four year periods of limitation pre- soribed by statute rights so deoreed becOlllll absolute. It is plain. therefore, that the real questi on before us is whether water rights may be establisned by prescription end adverse use in derogation of those statutory prOvisions, by one who has had full opportunity to assert his right thereunder. Plaintiff olaims in substance that by prior possession end use of this water its right has beoome paramount to all others, junior or .senior, deoreed or otherwise. This is in effect a collateral attack upon a judg,ment long since made absolute by the statute of limitation. In Comstook v. Ramsay, 55 Colo. 244, 133 Pao. 1107, an attanpt was made to appropriate seepage and return water that was inter- cepted while on its way baok to too South Platte River. The attempt was made on the theory that the water was entirely separate frC1Jll the fICWi' of the river. and therefore independent of all appropriations upon that stream. In this case it is also claimed that too waters of Big Dry Creek never have been permitted to reach the river, being intercepted end used by plaintiff without reference to adjudioated rights, and for this reason the olaim of title by presoription is made. In, in re German Ditch Company, supra, as heretofore indioated, it was held that Big Dry Creek is tributary to the South Platte River. In speaking of the law governing tributary waters in Comstock v. Ramsay, supra, tlus court, at page 255, saidl "There is no law anywhere to support the contention that if these waters are naturally tributary to too riyer, still they may be taken by a new clail!llUl.t to the damage and injury of prior appro- priators upon that stream, simply because he captures and diverts them before they actually get into the river channel. If such act of oapture and diversion can be upheld as lawful and proper, by the same reaSoning a new claimant oould divert the waters of a surfaoe tributary, if he only be spry enough to oapture and divert them before they actually reach and mingle with the waters of the main stream. II If the theory of plaintiff be upheld, then the right of any appropriator under any adjudioation decree may be divested at any time -2-