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Show 696 INTERSTATE ADJUDICATIONS accredited to them severally. It is a necessary conclusion from the answer that all of the actual diversions have been made with Colorado's permission express or implied. The evidence respecting diversions under the Skyline ditch appro- priation and under the tunnel appropriation is conflicting; and this is true of the evidence respecting the total diversions under the recog- nized Colorado appropriations. After considering all of it, and such admissions as are made in the answer, we reach the conclusion that the diversions under the Skyline ditch appropriation have exceeded the quantity named in the decree, the excess ranging from 1,000 to 5,000 acre feet per year; that the diversions under the tunnel appro- priation have closely approached, but have not exceeded, the quantity fixed in the decree; that the total diversions under the recognized Colorado appropriations, including those for the meadowlands, have uniformly exceeded the aggregate of the quantities which the decree accredits to them severally; and that, if the appropriations and the diversions for the meadowlands be put aside, the total diversions under the other appropriations have at times closely approached, but at no time have exceeded, the aggregate of the quantities accredited to them as distinct appropriations. We already have dealt with the excessive diversions under the meadowland appropriations and have said that an injunction will be granted forbidding any further departure from the decree in that regard. That injunction will eliminate the excess in those diversions; and when that is done the total diversions under the several appro- priations will be, as has just been pointed out, within the aggregate of the quantities which are accredited to them severally Dy the earlier decree-and this notwithstanding the diversions under the Skyline ditch appropriations are in excess of the quantity accredited to it. We therefore must consider the contention made by Colorado that, consistently with the decree, she lawfully may permit diversions under any of the recognized appropriations in excess of its accredited quan- tity, so long as the total diversions under all do not exceed the aggre- gate of the quantities accredited to them severally. In both Colorado and Wyoming water rights acquired by appro- priation are transferable, in whole or in part, either permanently or temporarily; and the use of the water may be changed from the irriga- tion of one tract to the irrigation of another, if the change does not injure other approjmators.1 The rules in this regard are but inci- dental to the doctrine of appropriation. That doctrine prevails in both States and the decree in the earlier suit was based on it. It was not the purpose of that suit or of the decree to withdraw water claims dealt with therein from the operation of local laws relating to their transfer or to restrict their utilization in ways not affecting the rights of one State and her claimants as against the other State and her claimants. We perceive no reason for thinking that it is in any wise material to Wyoming and her water claimants whether the water in question is diverted and conveyed to the place of use through the Skyline ditch, the Wilson Supply ditch or the ditches of the Laramie-Poudre Tunnel [Citations omitted.] |
