The Meeker herald. [volume] (Meeker, Colo.) 1885-current, 1905-08-19
Important Decree in Big Ditch Suit.

Qefeu n decision OF Ihr-reacuIllKS Sui-
portance to owners Of water rights In
this state. The question involved IN
the case In which the decree was rem
dered was rs to the ownership to por-
tions Of water rights decreed to one
person and which that person failed
to use. The decision establishes the
principle that while an owner must
use reasonable diligence In availing
himself of the water decreed to him
those claiming against him by reason
of failure to use such water must
exercise equally reasonable diligence
in securing a decree Of forfeiture
The suit Ii what is known here as
the Four Mile ditch case. There are
some twenty ranches on -Four Mile
creek. The first water right out 10
the creek IL decreed to the -Four Mile
ditch, owned by Henry Rohwer and
Emanuele Isola, and gives them 81
cubic foot which, under the estab-
lished ratio of one cubic foot of water
to each 80 acres of land, allots them
water for 100 acres. This right was
granted by a general decree covering
the whole of water district No. 81, In
Guiding the territory on -Four Mile
creek, that decree being dated May
IL, 1889.
prior to 1904 the owners Of the
Four Mile ditch had irrigated only
eighty acres of land in crops and
claimed water for. an additional ten
acres of pasture. During times Of
scarcity of water the water commits
sioner had never allowed them more
than g cubic feet of water, In accor-
dance with the law providing that
water shall be turned into the ditch
Of a ranchman for only rs much land
ms he can irrigate, Notwithstanding
he may have a decree for more water.
In 1904, however, Rohwer and Isola
cleared and put into crops fifty-flve
acres additional land out of the 100
for which they were originally
granted water, and to get the water
ON the land put In a siphon pipe line
lateral at an expense Of several thou
sand dollars and succeeded in getting
Il land into high state of cultiva-
tion during the spring.
"After this expence had been In
CURED by them all the other ranchers
on the creek united In suit brought
by q. w. Dsrrow to restrain Rohwer
and IsOlA from usIng more than the
amount Of water utilized by them In
previous years on their cultivated
land, and asked the court to declare
the balance of the water right decreed
to them to be forfeited on the ground
that they .iadn' t exercised reasonable
diligence In bringing the additional
fifty-flve acres under cultivatihn, and
that they had not beneficially APP
piled more than half their .decreed
water right.
"The defence set up by Senator f.
T. Taylor, who represented Rohwer
and Isola, was, first, that In the
spring of every year his clients had
used the full amount of their decree
and their ditch had capacity for the
full amount. About the first of June
the creek would run down so that
they could not use any more than l.s
cubic feet, and In fact at many times
there was no more water in the creek;
secondly, that his clients having
brought the additional land under
cultivation and Irrigation before any
suit was brought to establish II for
feiture, and as the water right was in
full and active use at the time suit
was brought, the same could not be
declared abandoned; third, that de-
PENDANTS had exercised a great deal
more diligence in bringing the land
under water than any Of the other ir-
rigators on the creek had shown who
were making the claim of forfeiture.
"As to the claim that fifteen years
was an unreasonable length of time
for them to avail themselves Of their
full water right, 1t was shown that
the cost Of clearing the land on the
creek and bringing 1t under water is
nearly $40 an acre and the court held
that in view Of this fact the time was
not unreasonable, particularly as all
of the plaintiffs had waited an equal
length of time to ask for a forfeiture,
and all Of them had ample informa-
tion that ROhwer and IsOla Were in-
curing an expense of several thou
sand dollars to avail themselves of
their full right and no one had made