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OOID70 077-19-9158I-MR - COLORADO T;ATER CONSERVATION BOARD by prooeedings in equity, and the adjudication statutes upon which the rights of every priority holder in the state are based. may be nullified and adjudication decrees made mere scraps of paper. To quote again from Comstock v. Ramsay. supra. at page 254. it is saidl .. "To now pormi t one who has never had or claimed a ri ght upon or fram the river to come in. capture. divert. and appropriate waters nat'urally tributary thereto, which are in fact nothing more or less than return and waste waters. and upon which the old decreed priorities have long depended for their supply. would be in effect to reverse the ancient doctrine of "First in time first in right." and to substitute therefor. fortunt\tely as yet an unrecognized one. the principle. "Last in time first in right." ~ It may be true that 6l1Y priority plaintiff can now obtain'in the statutory proceedings will be junior to practically all other priorities on the river. That. however. is not the fault of other appropriators who have proceeded to have their rights adjudicated by law. The irrigation statutes were in force long before plaintiff began its alleged use of the vraters of Big Dry Creek. Had the open and notorious use of such waters vdthout protest for more than twenty years been for that length of time prior to the passage of the irrigation statute. there might be some ground upon which to base claim of title by prescription. It is not the purpose of this opinion to declare that under no ci rcunrstances can the right to the use of water be establi shed by prescription. this decision being strictly limited to the facts of the specific case. and under them it is manifest that the use relied upon was in effect an illegal one. in derogation and deliberate defiance of the statute. On its theory of the case. plaintiff cannot predicate any right upon such use. as a=ainst those already having regularly decreed priorities on the South Platte River and its tributaries. A different rule would conflict with both the letter and spirit of the statute and plaoe in peril every water right awarded under its provisions. Sinoe the cause is squarely determined on the proposition that plaintiff has no such cause of action as is relied upon. it is unnecessary to detennine other questions raised. including the ane as to whether proper parties defendant were before the oourt. The judgment of the trial court should be affirmed and it is so ordered. Decision en banco Affinned. Decided March 3. 1919; rehearing denied April 7. 1919. -3-