The Glenwood post., 1906-02-17
BIG WATER
SUIT SETTLED
The Users of Water on a Stream
Have a Vested Right to Re-
turn Waters by Process
Of Irrigation
JUDGE BAlLtY'S DECISION IN FULL

court reconvened in this city this morn
ing from adjournment taken the End
inst. Almost the first matter to be
taken up was the case of the Otero
irrigation, district, petitioners for the
diversion of ninety two cubic feet OF
water from Lake and Chatfee counties
to the beet sugar fields in Otero coun
ty. A fairly large audience of per
sons interested in the matter we're IN
attendance, and it is safe to say that
ninety per cent of the taxpayers OF
the two counties will endorse the de-
cision of Judge Bailey.
1t is evident from section 4 of the
decision of Judge Bailey that, in his
opinion. Otero county already has
more water than she would have were
the waters transferred as the fact OF
the water being used here, stores it,
permitting it to flow down the river
to the eastern part of the state where
it is needed most, and which, were it
transferred, could not happen, but
would all pass during the food season
of the river or before it could be used
advantageously.
The decision is as follows:
Protests having been filed by vari
Gus water claimants in both of SAID
districts, and in intervening ones,
against the allowance of said petition,
and trial having been heretofore had,
testimony taken and arguments made,
and the petition having been submit
ted on said proofs, arguments and the
pleadings filed and appearance made,
and taken under advisement, all par
ties appearing by record attorneys,
this matter comes on now again, the
parties in interest appearing as before.
on this 14th day of February A. D.
1906, the same being one Of the regu-
lar judicial days of the January A i.
D. 1906 term of said court, and 1t be-
ing now we'll, fully and duly advised
doth find as matter of law as follows
'FIrst-All decreed appropriations
and legal users of water from the Ar
kansas river below the present points
of diversion of the several priorities
to the use of water herein sought to
be changed and transferred, have a
vested right in the use for irrigation
of returns waters from seepage, waste,
drainage and overflow, necessarily in
cident to the irrigation of the lands
rs these respective rights have been
haro<,>fNra vI
be used for such beneficial purposes in
the future, if the transfer prayed be
denied.
Second All legal users and decreed
sas river have a vested right in the
order of their respective priorities
to the use of the waters sought to be
changed and transferred, at such
times as the testimony shows that pc
titioners and its grantors did not. and
reasonably could not, at the present
points of diversion of said priorities.
apply them to the beneficial purpose
for which originally appropriated.
"Third-A priority of right to the
use of water FOR irrigation may be
limited not only in quantity, but by
time, by character of use and by
place of use, depending in each par
ticular case upon the facts and condi
tions Immediately surrounding it,
that is to say no appropriation of a
water right may be allowed to use the
same either in greater quantity, for a
longer time. for different character
of use, or apply it at a different point,
if by so doing, in any one of the
above respects he materially and SUBJ
stantially adversely affects and Injuries
the rights of other appropriations.
Under the law as above announced,
the court finds, as a matter of fact,
the following:
'First-That the transfer and
change proposed would materially
and substantially adversely affect and
injure the vested rights, of junior ap.
perpetrators of water rights in on said
stream and its tributaries below the
present point Of diversion of the pri-
critics thus sought to be changed and
transferred.
"Second-The amount of such in
jury under the testimony adduced is
absolutely incapable Of ascertainment,
nor does the court believe it possible
to bring testimony that could possibly
materially aid it in arriving at any
thing like fair and just estimate
Of such said injury.