The Greeley tribune., 1904-07-14

water to make that amount; not,
however, the right to draw from
the reservoir more that one-twenty-
fifth Of the water therein.
The contention Of the Greeley
and Loveland Irrigation company,
defendant, and Of the plaintiffs, as
gather from counsel, is that the
sugar company during the manu-
facture OF sugar and the nop-irrigat-
Ing season, has the right under this
CONTRACT to have carried through the
canal OF The Greeley and Loveland
Irrigation company, the return or
seepage waters that may gather In
the stream between the headgates OF
the Barnes ditch and the Loveland
and Greeley canal and any seepage
water that may escape from this res
ervoir through the tube. If this
does not make four cubic feet at the
factory, then it is entitled to draw
upon this one twenty y-ffth of the
stored water in the reservoir.
These two conditions are not
harmonious. l can not harmonic
then. II had drawn this contract
and wanted 1t to mean what the coun-
sci or for the Greeley and Loyeland
canal claims, l should have made it
say so. Also, ii had wanted it to
mean as contended by counsel for
the sugar company, l don't think 1
would have trouble in finding words
to express my thoughts.
II will state what l think is the
law applicable to the case.
Whether the demurrers are sus-
tained or overruled will depend upon
the issue joined. might be right
in law aud still the case he reversed
il l sustain the demurrers
The contention Of counsel for
the sugar company is not correct.
Neither do l find the contention Of
opposing counsel is correct.
II. as contended by the sugar
company, after the I4O reservoir
rights we're sold this contract was
made, for illustration, we might
treat it the same as II no more res
erVoir rights had been sold-what
would be the status of the parties
and how would you dispose Of this
claim Of the sugar company? The
l44 reservoir right consumers would
be entitled during the whole non
irrigating season to have all the wa
ter of the stream that had not been
appropriated for storage use senior
to the appropriation made by other
reservoirs flow into the reservoir for
the purpose Of supplying the full
volume belonging to the l40 rights.
The sugar company, neither with
nor without this contract, had no
right to take four feet, nor any
amount from them until thei, rights
were fully satisfied. If these res
ervoir consumers are entitled to have
any part OF the water flow into the
reservoir Tor storage use, they are
entitled to have it all until their
storage needs, to the amount OF
their appropriation has been sup
piled. Until this is fully accomplished
the sugar company has no right to
take from the stream any water that
has been appropriated by the reser-
voir, no difference what kind of a
contract it might make with the
ditch company.
The company operating the res
ervoir was Obliged during the whole
storage season to put all the water
into the reservoir until the full ap-
prOpriaton in volume represented by
these l40 rights had been stored. But
| take much broader view OF the
case than this:
1.-The full ca apacity or 300 reservoir
rights have now been sold and are
in use. Can the company operating
the reservoir compel all these users
to store on an equal footing and pro-
rate? think it can, and that alone
is sufficient to dispose of this case
If the irrigation company should at
tempt to discriminate now between
these reservoir right holders, the
court would compel it to prorate all
these rights.
There is another question Sup
pose this reservoir should attempt
,now to obtain an adjudication de-
cree? Evidently there will be pro-
ceedings instituted on the Big
Thompson just as there is now pend
ing for the Cache Ia Poudre river.
the st. Vrain and Boulder creeks to
settle the reservoir appropriations
If an adjudication is had for this
reservoir it will obtain decree for
storage use, say 900, 600, 600 cubic feet.
That decree will date that storage
canacify nriority by relation hack 10