The Glenwood post., 1921-05-21
JUDGE SnUMATE
ISSUES INJUNCTION


Judge Shumate heard the injunction
application of F. F. Sweet and W. H.
Harris, owners of the Sweet Harris. Blue
creek ditch, against Ben Hotz and Paul
Gould, owners of the Hotz- Gould ditch
from Blue creek.
This is a very interesting case, in
vofving the question of "developed -
water, and the question of the rights
of the parties who develop or increase
the flow of the water of a stream.
Could owns an interest in two or
three bitches from Blue creek, the
headgates of which are located below
his land, and he has not yet secured q
court permit to change the points of
diversion
Hotz and Gould claim that about o
year ago they appropriated the right
of way of an old abandoned ditch and
built thereon ditch to their lands,
taking water from Blue creek. They
claim that Sweet and Harris came
along and gobbled up their right Of
way and built ditch to their own
lands, and began using water, their
title to which was questionable.
Sweet and Harris last fall came into
court and, over the protest of Gould
and Hotz, secured decree of .S2 Of a
foot of water, on proof of having in
creased the flow of the stream to that
extent.
Early thus spring they sent for the
then water commissioner, A. j. Vagg,
and made demand on him for the water
that was flowing in the Sweet Harris
ditch. Apparently Mr.. Vagg did not
take the matter up with the state en-
giseer or the division engineer, Or
seek in any other way to ascertain the
facts, or the rights of the parties, but
turned the water out of the Sweet-Har-
ris fich, or authorized Gould to do 50,
and posted u notice on the ditch advis-
ing all of what had been done.
Judge Shumate allowed the injunc-
ton, restraining Hotz and Gould and
the water commissioner from in any
asanner interfering with the flow CT
So Of foot Of water to Harris and
Sweet through their ditch, and in doing
50 severely rcbuked Mr.. Vagg for his
part in the affair, declaring that It
was pure waste Of the money OF the
taxpayers if judges were to hear evi.
aenee and make DEGREES, if those de-
crees were to be set aside by executive
officers, as water commissioners, also
drawing public money for their SER
vces.
Judge Shumate very plainly intimat-
ed that if Mr.. Vagg had not already
passed out of public employ as water
commissioner, the court would find an
other method Of dealing with that fea-
ture of the case.
One very interesting question in con
that apparently is new one, so far as
Colorado Jurisprudence is concerned, is
as to whether developed water is pub
lie water, in the sense that such term
applies to the regular waters of a
stream, and when not needed by the
appropriation must go back in the
stream for the benefit Of the next ap-
proprietor in priority, or whether this
water becomes the property of the APP
proprietor, to do with as he sees lit,
after he has used it-that is, to give
it away to his neighbor who may not
have any right whatever on the stream,
if he so pleases to do. This Is ques-
ton to set people to thinking, but a
question which Judge Shumate did not
attempt to pass on in his case.
II is more than probable that the
ease may yet find its way to the su'
promo court. c. W. Taylor, who rep
resented Sweet and Harris, and Mayes
and barrow, represented the interests
Of Gould and Hotz.