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<br />OOlLJ75 <br /> <br />i.. <br /> <br />Their olaim is that the appropriation is from mBre seepage Which arises on <br />their land and therefore is not subject to appropriation by others. The <br />plaintiff on the other hand claims that the waters whioh he apprcpriated wero <br />of a stream flowing through defendant's lands. not mere seepage but what <br />he denominates a "seepage stream" and that his rights have been adjudicated <br />to him by a decree in an action to whioh defendants I grantor was a party. <br /> <br />.. <br /> <br />(1) 1ilhatever and however sacred their rights may have been, if the <br />court has adjudicated plaintiff's rights superior, the adjudication must <br />stand. <br /> <br />(2) The water in question arises on the S 1/2 of S. 1"1. 1/4 of seotion <br />18. and N. W. 1/4 of section 19, township 22 S. range 4517. in Bent County. <br />Which. at the time of the general adjudioation of water rights by virtue <br />of whioh plaintiff olaims, were owned by parties to these proceedings who <br />are, of oourse. bound by them; they, therefore. cannot deny that plaintiff <br />has a valid appropriation for the water which he olaims. <br /> <br />, <br /> <br />It appears. however. by the complaint and by the adjudication decrees. <br />that plaintiff's right is to "peroolating.seepage and spring waters,'1 and <br />defendants olaim tbat under C. L. Par. 1637, such appropriations are always <br />subject to a paramount right of the owner of the land on whioh the waters <br />arise. to use them when oocasion requires. and that the adjudioations must <br />be regarded as made subject to suoh right even though such ovrner made no suoh <br />olaim at the time of the decree of adjudication and even though suoh right <br />was not reserved therein. Vlhether defendants' position is right is the <br />first and main question we have to meet. C. L. section 1637 is as followsc <br />"Sec. 20. That all ditches now construoted or hereafter to be constructed <br />for the purpose of utilizing the waste, seepage or spring waters of the <br />state, shall be governed by the same laws relating to priority of right as <br />those ditches constructed for the purpose of utilizing the water of running <br />streams; PROVIDED, That the person upon whose lands the seepage or spring <br />waters first arise. shall have the prior right to such waters if capable <br />of being used upon his lands." L. '89. p. 215. Par.;t;R.S. 108, Par. 3177- <br /> <br />(3,4) Clearly this means that anyone may appropria.te seepage and <br />spring water, but what does "prior right" mean? Does it mean prior right to <br />appropriate or prior right to use without appropriation, or perpetual <br />right to appropriate notwithstanding previous appropriations even though <br />the seme may be followed by adjudication? If an owner of land suffers <br />another to appropriate his spring oan he reclaim it at any tims without <br />oompensation? "Those using the water for domestic purposes shall have the <br />preference over those olaiming for any other purpose." Colo. Const. art. <br />XVI, sec. 61; but we held that olause to give no right to a domestic user <br />over an appropriator for another purpose without either the latter's consent <br />or condemnation (Sterling v. Pawnee Co., 42 Colo. 421. 94 Pac. 339), and that <br />therefore the city of Sterling must condemn,if they wished to appropriate <br />the springs that fed the Pawnee company's ditohes. The ground of this <br />decision was that the appropriated rigj:1t WM property and could not be <br />taken constitutionally except by consent or oondemnation. The analogy <br />with the present case is plain. Plaintiff' has appropriated and defendants i <br />grantors have acquiesoed even to judgment; plaintiff thus acquired property <br />which cannot be taken from him without compensation. If it be olaimed that <br /> <br />.~ <br /> <br />..2- <br />