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Show 690 INTERSTATE ADJUDICATIONS 2. 4,250 acre-feet of water per annum by reason of certain meadow- land appropriations; 3. A relatively small amount of water appropriated prior to 1902 through the Wilson Supply ditch from the headwaters of Deadman Creek, a Colorado tributary of the Laramie; and 4. 15,500 acre-feet of water per annum by reason of the Laramie- Poudre tunnel appropriation, making an aggregate of 37,750 acre- feet per annum, apart from the Wilson Supply ditch appropriation; and by according to Wyoming 272,500 acre-feet of water per annum by reason of appropriations in that State. The relief sought is the protection and quieting of Wyoming's rights under the decree; provision for accurately and effectively measuring and recording the quantities of wTater diverted in Colo- rado; an injunction restraining Colorado from continuing or making any diversion in excess of the quantities of water accorded to her by the decree-in the event the injunction in that decree is held to relate only to diversion by reason of the Laramie-Poudre tunnel appro- priation; and such other and full relief as may be just and equitable. Colorado challenges the bill by a motion to dismiss in the nature of a demurrer. The principal grounds of the motion are, (1) that the bill proceeds upon the theory that the prior decree determined, as against Colorado and her water users, the full quantity of water which rightfully may be diverted from the stream within that State, and likewise the quantity which Wyoming and her water users are entitled to receive and use from the stream within that State-all of which, it is insisted in the motion, is refuted by the record, opinion and decree in the prior suit; (2) that the bill shows that the acts com- plained of are not acts done by Colorado, or under her authority, but acts done by private corporations and individuals not parties to the present suit and with respect to which no relief can be had against Colorado; and (3) that, in any event, the bill fails to show with cer- tainty any violation of the decree or any damage to Wyoming or her water users. In the bill, Wyoming does take the position that the decree in the earlier suit determines the rights of each State as against the other, including their respective water users, respecting the diversion and use of the waters of the interstate stream-in other words, that the decree fixes and limits the quantities of water which Colorado, includ- ing her water users, is entitled to divert and use within that State and thus withhold from Wyoming, and likewise determines the amount of water which Wyoming, including her water users, is en- titled to receive and use within her territory. Counsel for Colorado, recognizing that such is the position taken in the bill, say in their brief: "The principal purpose of the motion to dismiss is to join issue with the contention of the complainant that the whole matter has already been adjudicated by the former decree. The problem so pre- sented is a law question and it is apprehended that this should be determined in limine" And, after indicating Colorado's purpose to answer if so required, they further say: "We insist, however, that the cause will be greatly accelerated and confusion be avoided by determining at the threshold the issues of law tendered by the com- plainant, and thereupon the issues of fact should be defined, if any are considered to stand for adjudication after passing upon the con- |
