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<br />WINDSOR RESERVOIR & CANAL CO. et al. v. LAKE SUPPLY DITCH CO, et al., Pac, Reporter
<br />729 (Supreme Court cf Colorado. May 4, 1905)
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<br />Page 73'2' ~ 736
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<br />"Turning to it" sworn statement of claim, we find that its designated sources of
<br />supply 1.'0".' filling the reservoir were Park, or Dry, creek, and by means of the North
<br />Fork ditch out of the North Fork of the Caohe la Poudre river, a large portion of which
<br />water was to be diverted into the North Fork ditch, by a system of exchanges, in lieu of
<br />water' which appellee had stored in its Fossil creek reservoir farther down the valley,
<br />From this statement it also appears that, of the 400,000,000 cub~c feet, the total
<br />capacity claimed for the reservoir, 430,000,000 feet were to be received by means of
<br />the proposed system of ~chang6 which, so far as we can ascertain from the evidence,
<br />appellee has not yet put into operation, even if it has the facilities for doing so."
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<br />"Manifestly it was ilnproper to grant two separate reservoir priorities- of the same
<br />capacity and date to ~he same reservoi", as the result of one and the same construction
<br />and the same act of storing. The referee and the trial court, apparently realizing such
<br />unfitness, sought to avoid it and preserve to the appellee, by reason of its original
<br />partial construction, a priority to the extent of the capacity claimed by permitting a
<br />transfer of the volume to other reservoirs which appellee owned."
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<br />"The change of place of storage- or use from one reservoirr to another, if not
<br />identical in principle, i. analogous to change of place or use of irrigating water from
<br />one tract of land to another. The matters for determination in this proceeding were the
<br />relative priorities of the reservoirs in the water district, and not the right t.o change
<br />the place of storage from one reservoir- .to another. The issues invo]vedi in the ]a tte!"
<br />might, "nd probably would, be quite different from those' in the former.'"
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<br />"3, One provisiom of the decree permitted appellee the Nmrth Poudre Irrigation
<br />Company, to fill its Caverly, Stutchell, and Fossil creek reservoirs twice in anyone
<br />year. to their full capacity, and another- provision gave to appellant the Water- Supply
<br />& StoragE> Company a similar right for sever"l of its Teservoimli, with a provi so ilm
<br />each caSE> 'that said second filling shall in no manner affect, prejudice or injure the
<br />rights. of junio~ reservoir' appropriators',"
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<br />tf'whether,t after all reservoirs in a water district have, in any' one season 011'"
<br />year~ been once filled to thei!' decreed capacity, " second filling may be had, and, if so,
<br />in what order they sha;n be filled, are not questions now before us. The question is.
<br />whether, during the same S83:son... and before junior reservoirs are filled once, a seniol::"
<br />reservoi,.. may, under our statute, have a decree allowing more than one filling on the same
<br />priority or appropriation of water for storage. Appellee says there is no express pro~
<br />vi.sion of the sta'tute to the contrary, and that unde'r our Constitution, whioh allows an
<br />appropriation either by means of a ditch or canal for il1\l1\ediate irrigation or a reser-
<br />voi,,' for storage. of whatever flow is diverted, or stored, and beneficially used, it
<br />necessarily follows, when such right is claimed in the filing statement, a5 is the case
<br />in at least one of its statements, and the facts show, as it is clai1ned they do here,
<br />that a double filling has been enjoyed. a decree therefor is proper. We cannot concUE'
<br />in this reasoning., Rathe". do we think the one' who makes such a claim should be required
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