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<br />001005 <br /> <br />. <br /> <br />parties, if the priority of the petitioner Nix was to be adjudicated Q.S of a <br />date later then the date of the last decreed priority i~ general adjudicaticn <br />proceedings. This was clearly determined by this court in the case of Kibbee <br />v. Kostelio, 87 Colo. 215, 287 Pac. 652, wherein the following language is <br />used, <br /> <br />o <br /> <br />"The court likewise had jurisdiction to entertain the application of Kostelio, <br />but we think, in the exorcise of its jurisdiction, it reached the wrong result. <br />Seotion 1788 under whioh both the application of 'Pledger and Kostelic were <br />initiated, provides that the owner of e. priority who has failed to offer evi- <br />dence under any adjudication provided for by our statutes, may obtain leave and <br />make proof of such priority, but in ascertaining and determining the same, by <br />repeated deCisions of this court, the priority ~arded in such circumstanoes <br />must bear a date later than the latest priority awarded in the general decree <br />in that district. There is no dispute about this general proposition. II <br /> <br />Counsel for petitioner virtually concede this faot when they say in their <br />brief, lIif the Cless water is not developed water, then the petitioner would <br />be required to ta.lre a deoree junior to the other appropriators from the draw <br />which would be Dalpez, claiJning under the Moreland decree." <br /> <br />\ <br /> <br />(5, 6) The trial court having determined that the waters appropriated by <br />Nix and sought herein to be decreed would ultimately find their way into and <br />beoome a part of the stream in TTright's draw, a conolusion that we think is <br />amply supported by the evidenoe, suoh'finding established the fact that the <br />waters were not subject to sale by Dunham, the original owner of the land to <br />C1ess the predeoessor. in interest of Nix, in consideration of an agreement <br />to drain the land or for any other oonsideration. Since such waters ul tiJnately <br />find their way into the natural stream they are a part of the supply of. the <br />stream and belong to the publio until appropriated and put to a beneficial use <br />under the requirements cf law, a cOlllpliance v{ith Which is necessary to initiate <br />a right therein. If the waters could not be sold, then the attempted sale by <br />Dunham to Cless in consideration of, his draining the lands, gave to the latter <br />no right therein; Nix, his successor in interest obtained no right, and there is, <br />therefore, no basis for the olaiJn of title by adverse user or prescription, <br />for any user of waters under such ciroumstances would of necessity be but an <br />appropriator thereof subject to the approprio.tions of others on the stream <br />who were prior in time. <br /> <br />. <br /> <br />The judgment of the trial court is reversed and the cause remanded with <br />instructions, that if petitioner desires to proceed further, he shall cause <br />notice to be served on all parties with decreed priorities subsequent to the <br />date of appropriation claimed by petitioner, and on all other appropriators <br />.from the stream, if any, whose rights are undecrecd, whether their appropriations <br />are prior to or subsequent to the appropriation claimed by petitioner as the <br />foundation of his right. <br /> <br />. <br /> <br />, <br /> <br />-6- <br />