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Show 604 OTHER WATERS AT THE SURFACE In addition, section 148-2-2 provides:193 All ditches constructed for the purpose of utilizing the waste, seepage or spring waters of the state, shall be governed by the same laws relating to priority of right as those ditches constructed for the purpose of utilizing the water of running streams; provided, that the person upon whose lands the seepage or spring waters first arise, shall have the prior right to such waters if capable of being used upon his lands.194 The Colorado Supreme Court has held that the latter statute is not applicable to a spring which is part of the supply of a stream, the water of which was appropriated before its enactment. Further, the fact that the spring has increased in flow as a result of irrigation on higher lands does not alter its status.195 In another decision concerning the same statute the court said, "If valid at all, it is applicable only to appropriations of waste, seepage and spring waters before they reach the channel or bed of a natural stream, whether by natural surface flow, by percolation or by being artificially turned into the same."196 The fact that a spring feeding a stream originates from percolating water does not give the landowner a prior right to the spring to .the prejudice of a senior appropriator on the stream of which the spring is a tributary.197 In Colorado, it is a well settled presumption that all waters are tributary to a stream.198 And this presumption has been applied expressly to spring waters.199 That being so, ground water feeding the spring in controversy was subject to appropriation under the doctrine of Nevius v. Smith.200 In [Nevius v. Smith] this Court determined that the statute giving the landowner priority over seepage water rising on his land did not mean "prior right," as against established right by appropriation. When this rule is applied to the present case, we find plaintiff as having established rights by appropriation which defeats any claim of defendant to the water arising on its land under the conditions here presented.201 193Colo. Rev. Stat. Ann. § 148-2-2 (1963). 194 With respect to the application of this section to waste and seepage waters, see "Waste and Seepage Waters-Several State Situations-Colorado," supra. 19SClark v.Ashley, 34 Colo. 285, 82 Pac. 588 (1905). 196La Java Creamery & Live Stock Assn. v. Hansen, 35 Colo. 105, 83 Pac. 644 (1905). l91Bruening v. Dorr, 23 Colo. 195, 47 Pac. 290 (1896). i9*HehI Engineering Co. v. Hubbell, 132 Colo. 96, 99-100, 285 Pac. (2d) 593 (1955). 199Ranson v. Boulder, 161 Colo. 478, 424 Pac. (2d) 122,123-124 (1967). But the court will not take judicial notice that a spring is tributary to a natural stream, as against a positive declaration to the contrary, "and uphold a general demurrer on that judicial assumption." Colorado & Utah Coal Co. v. Walter, 75 Colo. 489, 226 Pac. 864 (1924). 200Nevius v. Smith, 86 Colo. 178, 182-183, 279 Pac. 44 (1928). 201 HehlEngineering Co. v. Hubbell, 132 Colo. 96,100, 285 Pac. (2d) 593 (1955). |