Santa Fe new Mexican. [volume] (Santa Fe, N.M.) 1898-1951, 1900-09-19
AN IMPORTANT CASE.
Oan Water Be Appropriated by Diversion il
Colorado for Use in New Mexico2

A decision of the Colorado supreme
court on what is known as the Prewi,
ditch case, involving water rights of the
ditch that takes water for irrigation
from La Plata river near Parrot city
and carries the water iQso New Mexico
for the irrigation of iilais there, ha.
been published. The case was tried ir
Colo, and the owners Of the other
bitches that irrigate land wholly ir
Colorado cOntended that water cannot
be appropriated by diversion in Colo.
RADIO for use in New Mexico, and also
that the district court of La Plata coun-
ty. under the irrigation statutes, has
no jurisdiction to award priOrities to q
ditch which, though having it's head.
gate in Colorado, was intended to, and
does, carry water outside Of that state
and into the territory of New Mexico
for the irrigation of lands there. Judge
Russell decided that his court had not
jurisdiction to award a priority to the
Prewitt ditch for the irrigation Of New
Mexico lands but only to the extent
that the appropriation was made fol
lands in Colorado, and from this deci-
sion the owners of the Prewitt ditch ap-
pealed to the supreme court Of COlora-
do. The case is known there as Lamson
ct al. VS.. Wales ct al.
Chief Justice Campbell in his deci-
sion, says that this is a very impor-
tant question, and one which, so far as
we are advised, has not been passed up
on by court of last resort" and that
the court below was right under the
statutes governing this special proceed
ing. After citing the Colorado statutes
he says: From these enactments 1t Is
altogether conclusive that in these pro-
ceedings. at least the intention Of the
general assembly was to limit the ad-
Indication to bitches irrigating lands
situate in this state, and not else
where
He then says: "Such being our con-
clusion it Is unnecessary as we have
said, to pass upon the other legal prop
osition pressed upon us" i. e., can wa
ter be appropriated by diversion in Col
orado for use in New Mexico.
The owners Of the Prewitt ditch also
maintained that under the evidence
they were entitled to larger quantity
of water than they received for irrigat-
ing their Colorado lands, and Chief
Justice Campbell says on this conten-
ton: '"The referee who heard the wit
nesses testify recommended that to ap-
pellants' ditch there be awarded a pri-
Ority Of 21 cubic feet per second Of time,
which the court reduced to 4 cubic feet.
We do not know why this change was
made. The appellees maintain that the
reduction was made because the ref
eree's award was based largely If not
altogether upon the original carrying
capacity of the ditch. and the number
of acres Of land which 1t was intended
to irrigate, and not upon the quantity
of water that was actually applied to a
beneficial use. This may have been the
principle adopted by the trial court but
so its conclusion Is not warranted. The
evidence is so indefinite that we do not
believe 1t practicable to determine from
1t the quantity of water appellants
ditch should have. The original opin-
ion, therefore, Is modified in this par
ticular only. The cause IL remanded,
with instructions to the district court
to proceed upon the evidence already
before 1t, together with such additional
evidence as the parties may see At to
to ascertain and determine
the quantity of water to which the api
pellants' ditch Is entitled for the bene-
fit Of lands situate in Colorado. Re-
versed and remanded."