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001081 Messrs. MOYNIHAN, HUGHES", !mOus. for plaintiffs in error. Messrs. McMULLIN, STEJl.NBDRG & HELl,!AN, for defendant in error. En Bane. Mr. JUSTICE YOUNG delivered the opinion of the court. THE plaintiffs in error were respondents below and will be herein referred to as respondents, or separately as Dalpez and the water company. The defendant in error, J. H. Nix, was the petitioner and will be herein so designated, or as Nix. This action was brcught by the petitioner to secure an adjudication of his right to the use of water for irrigation which he alleged was developed from seepage and springs on lands to which reference will herein be made as the Dunham lands. The proceeding is brought under chapter 112 of the Session Laws of Colorado, 1905, being section 1766, C. L. 1921. After the hearing the trial court entered a decree granting petitioner priority No.1 for 38/100 of a cubic foot of water per second from seepage and springs on the Dunham lands as of date April I, 1909. The facts necessary to an understanding of the controversy before us are substantially as follov.s, Uright's Draw is a naturul stream running in a general northwesterly direction, more northerly than westerly. A public higlw.ay approaches the draw from the eust crossing it over a bridge approximately at right angles. The Dunham land lies eust of the draw and south of the roud. The Gurley ditch runs along the easterly bank of the draw and parallel to it through the Dunham land and across the road. The Cless ditch belonging to petitioner is about 150 feet long and runs due east and west, parallel to and about 50 feet south of the road. Its fall is to the >vest and it discharges into the Gurley ditch. From the easterly end of the Cless ditch there are WiO lines of underground drainage tiles or boxes. One extends easterly 1573 feet as an extension of the Cless ditch and the other runs southeasterly 1385 feet along and a short distanoe from the easterly side of the draw. Respondent Dalpez awns the Moreland ditch, which has its headgate on the east bank of the draw north of the road and ubout 150 feet below the point where the Cless ditch flows into the Gurley ditch. The Gurley ditch belongs to the water company, which has carried through it the water from the Cless ditch to a point further dawn, where Nix takes it out into his own ditch to irrigate his land. This is the only connection the water company has with this case. '. , The evidence is undisputed that water fonnerly seeped into the road: that the grade of the road is downward to the west: that the land south of the road slopes to the north and the land north of it falls slightly to the south. It thus appears that the road is builtin a slight depression sloping westerly, the water from which drains into Wright's draw. Before the tile paralleling the road was installed by the county to interoept it, the water had drained into the road to such an extent as to form a bog at the east approach to the bridge aoross the draw, which bog was about 100 feet above the headgate of the More- land ditch belonging to Dalpez. -2..