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<br />001095
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<br />Appellee Brown, on behalf of himself and others similarly situated,
<br />oo:mmenced an action against the oity and county of Denver and others, the
<br />purpose of Which was to adjudicate rights to the use of water from a ditoh
<br />designated in his complaint "The Platte I"'ater Ditch," but more generally
<br />known as the "City Ditoh." Various oonsumers appeared and were made parties.
<br />The pleadings are vOluminous, and it is not neoessary to give a synopsis of
<br />them, as counsel for all parties have assumed that they fairly presented
<br />the question sousht to be determined, whioh was the respeotive rights of
<br />consumers of water from the city ditch, and we shall treat them accordinglj
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<br />Part of the testimony was taken before Judge Armour, and thereafter
<br />an order was made appointing a referee, who, by stipulation, was authorized
<br />to oonsider the testimony taken prior to his appointment, and to reoeive
<br />and consider suoh further testimony as the parties offered, and from this
<br />testimony forlllUlate his findings of fact and conclusions of lav1, and based
<br />thereon, report a deoree. He performed his duties in these respeots.
<br />Some of the consumerJ other than the city and county of Denver being dissat-
<br />isfied with the report of the referee, filed exceptions to the report, which
<br />the court afterwards heard and sustained in many particulars, and entered a
<br />decree from which the city and county of Denver has appealed.
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<br />At the outset counsel for appellant oontend that as appellees did not
<br />file a motion for nmv trial after the report of the referee was filed, the
<br />exoeptions they filed should have been disregarded, and the decree recom-
<br />mended by the referee confirmed by the trial court, and for this reason,
<br />the judgment should be reversed and the oase remanded with directions to
<br />enter a deoree in conformity with the one reported by the referee. rie think
<br />it unneoessary to consider this question, and in disposing of the case, will
<br />not consider questions of prooedure and practice, the alleged disregard of
<br />which does not affect the substantial rights of the parties, but base our
<br />opinion upon questions involved which will tend in the greatest degree to
<br />enable a speedy and final disposition of the case upon its merits.
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<br />In 1860 The Capitol Hydraulic Company was organized under a special
<br />act of the territorial legislature of Kansas. This act did not contain any
<br />limitation as to the period of the existence of the corporation it authorized
<br />to be created, and ernpovtered it to divert the water from the bed of the South
<br />Platte River, at any point selected between the Platte Canon and the mouth
<br />of Cherry Creek, and conduct the water so diverted to the oities of Denver,
<br />~raria and Highlands for mechanical, agricultural, mining and city purposes.
<br />The purpose of the company was to construct a ditch to carry water to
<br />irrigate trees within the municipalities named, and also to furnish water to
<br />farmers oultivating land under the ditch. The construction of the ditch
<br />was connnenced in 1865. In 1867 the name of the corporation was changed to
<br />The Platte ,later Company. In 1875 or 1876, this oompany entered into a
<br />oontract with the ci~y of Denver, Whereby it leased the ditch, as then exist-
<br />ing, with all its rights, privileges and franchises, to the city, and also
<br />agreed to sell to the city the ditch and rights leased for the sum of sixty
<br />thousand dollars, with interest, "in six a.nnual installments. These payments
<br />were made and the city then became the beneficial owner of the ditch, and
<br />such rights connected therewith as the vendor could convey. Prior to the
<br />commencellY'lnt of the construction of the ditch, other ditches on the river
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