WSPC06127

• File Number: 8080
• Description: Section D General Interstate Litigation - Colorado Not a Party
• State: CO
• Basin: Statewide
• Date: 4/29/1935
• Author: Unknown
• Title: Water Rights Adjudication - 077-35-91452 - Number 13665 - Dalpez Et Al Vs Nix
• Water Supply Pro - Doc Type: Report/Study

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poration.1I The trial court found; "That exoept for the oonstruction of the
upper portion of the Cless ditch (referring to the underground drains), the
oonstruction of the highway and later installation of the 1573 feet of boxed
oonduit. the flow of w~ber underground or esoape of surplus from the surface
naturally would have gone dawn the basin to the outlet below the Dalpez
headgate.1I In our opinion. the evidenoe. as disolosed by the reoord. amply
justifies the finding of the oourt that this water from the swamp land ulti-
mately would have found its way into Ylright's draw. A$ to the finding that it
would have gone into the draw below the headgate of the Moreland ditoh belong-
ing to Dalpez. we have found no support in the eVidenoe. The oourt's oon-
olusion as to this faot may have resulted from his inspection of the premises;
however. we do not deem it material whether the waters reached Tiright's draw
above or beloy, the Dalpez headgate. Ii' it reached the draw at all. either from
natural springs or from a bog created by seepage from higher irrigated lands.
the water belonged to the stream and those who had appropriated from the stream
were entitled to use it according to their deoreed priorities. In the oase of
Comstock v. Ramsay. 55 Colo. 244, 133 Pac. 1107, we said' "There is no law
anywhere to support the contention that if these waters are naturally tributary
to the river, still they may be taken by a new claimant to the dwnage and injury
of prior appropriators upon that stream, simply because he captures and diverts
them before they actually get into the river ohannel. If suoh act of capture
and diversion can be upheld as lawful and proper, by the sa.m.e reasoning a
new claimant oould divert the waters of a surface tributary. if he only be spry
enough to ,capture and divert them before they actually reach and mingle with
the waters of the main stream. flhen it is shawn or admitted that these waters
ultimately return to the river and thereby augment and replenish its flow,
they are part and parcel thereof, whether the limit within which this ooours
be short or long. The moment they are released by a user under an appropriation
from the river, whioh has been duly decreed, and start baok in their course to
the stream, they beoome and are as muoh a part thereof as when they aotual1y
reaoh the stream. Ylhenever these waters start to flow baok to the river and
it is apparent they will reach it. they constitute 0. part of the stream and
are not subjeot to independent appropriation as new or added water. or beoause
they have been used to serve one priority and have been thus artificially brought
into that position.* * * fnhat and all we intend to here determine. on this
partioular point, is that where it appears that such waters are in fact tri-
butary to the stream, and form a substantial and material source of its supply,
upon which appropriators therefrom have long depended for water to satisfy their
priorities, that then. as between such bona f'ide apprcpriators and users of'
such waters and a new claimant. the former has the first and better r ight.1I

(4) If' the trial court's f'inding, that the water entered below the 1I0reland
headgate. was wrong and it in fact entered above the Horeland headgate, then,
without doubt. Nix could only be decreed a priority subsequent to that of any
of the priorities decreed to the Moreland ditch. The reocrd shows that the
Moreland ditch was decreed priorities 6. 10. 17. 20 and 22. The record does not
show directly that there were other priorities adjudicated out of r~ight's draw
or out of' Maverick draw. into which r:right.s draw flovls, but in various places
in the reoord referenoe is made to ditohes further dawn the stream the existenoe
of which was assumed by court and oounsel.' Since the trial oourt f'ound that the
water here involved. if not interoepted, would have found its way into YJright's
draw lUld Maverick draw--in other words. that it belonged to the stream--all of the
parti6s in the distriot who had appropriations dorm the stream were necessary

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