| OCR Text |
Show 694 INTERSTATE ADJUDICATIONS firms are the only ones in virtue of which diversions may be made as against Wyoming and her appropriators. Claims not so recognized and confirmed are excluded. It follows that the diversions just de- scribed contravene the decree and infringe Wyoming's rights under it. They were being practiced when the present suit was begun and for a time thereafter, but when the motion to dismiss was overruled they were discontinued pending further action by us. Counsel for Colo- rado now assure us in their orief that the State does not propose to permit a resumption of these diversions if we hold, as we now do, that they contravene the decree. Because of this assurance, which we accept, there is no present need for granting an injunction in respect of these diversions. Another complaint is of the diversion of water through the Wilson Supply ditch from the headwaters of Deadman Creek, a tributary of the Laramie. The substance of the complaint is (a) that there has been no appropriation under which this diversion may be made, and (b) that, even if there has been such an appropriation, the Wilson Supply ditch recently has been enlarged and is now made the means of diverting more water from the headwaters of Deadman Creek than was included in the appropriation. Neither phase of the complaint is tenable. The decree in the earlier suit (260 U.S. 1), distinctly rec- ognizes and confirms the existence of an appropriation enabling "the State of Colorado, or anyone recognized by her as duly entitled thereto," to divert and take from the headwaters of Deadman Creek "the relatively small amount of water appropriated therefrom prior to the year 1902 by and through what is designated in the evidence as the Wilson Supply ditch." Wyoming is bound by this finding and adjudication. While the appropriation is there described as including a "relatively small amount of water" the record in that suit, to which the decree refers, shows that the appropriation is of 2,000 acre-feet of water per annum-a relatively small amount when contrasted with the other appropriations of 18,000 and 4,250 acre-feet which the decree recognizes in its next preceding parts. The decree is to be taken as if the exact amount of this appropriation were written into it. While the evidence bearing on the alleged enlargement of the Wil- son Supply ditch is conflicting we are persuaded by it that what was done was more in the nature of repair than of enlargement. But this is not very material; for the evidence convinces us that the water di- verted from the headwaters of Deadman Creek through the ditch has not been in excess of 2,000 acre-feet per annum, the amount of the recognized appropriation. It is well to state with some emphasis that what we have just said relates to the appropriation through the Wilson Supply ditch from the headwaters of Deadman Creek. The need for this statement arises out of the fact that other water which forms no part of this appro- priation, but is part of the natural flow of Sand Creek, is carried by the same ditch from Sand Creek to Sheep Creek. Sand Creek lies between Deadman Creek and Sheep Creek and for a part of its length is used as a section of the Wilson Supply ditch. We are not here concerned with the diversion or appropriation of the water naturally flowing in Sand Creek. |
