does not interfere with the enjoyment of the priority. Larimer Co. Res. Co. vs. People, 9 West Coast Rep., (Colo.) 527.

If the first appropriator takes only a part of the quantity flowing in the stream, another may afterwards. appropriate the remainder; and if the first appropriates the water only during certain days of the week, another may afterwards acquire an appropriation for the remaining days.

Smith vs. O'Hara, 43 Cal., 371.

Procter vs. Jennings, 6 Nev., 83.

The subject of priorities becomes important only when there is not water enough in the stream in question to supply the needs of all who desire to use therefrom. In the case of the smaller streams of the State, the capacity of which is easily ascertained, these questions have been for the most part already settled. As regards the larger creeks and rivers, however, from which many smaller ditches were taken out at an early date, and from which larger ditches have more recently been taken, it is easy to see that when the number of settlers under these latter require them to run their full capacity, the question of priorities, especially in a season of unusual drouth, may at once assume great importance. In any case it is of the greatest importance for those claiming water from any stream to see to it that their rights are properly established, in order that they may not find themselves some day suddenly left literally "high and dry."

CHAPTER IV.

PRIORITY-HOW SECURED.

G. S. 1720. New Ditches-Sworn statement must be filed-Contents -Map.]

Every person, association or corporation hereafter constructing or enlarging any ditch, canal or feeder for any reservoir, for irrigation, and taking water directly from any natural stream, and of a carrying capacity of one cubic foot per second of time, as so constructed or enlarged, shall within ninety days after the commencement of such construction or enlargement, file and cause to be recorded in the office of the County Clerk of the County in which such ditch, canal or feeder may be situated, or if such canal, ditch or feeder be situated in any water district, in the office of the County Clerk of such [each] County in which such water district may extend, a sworn statement in writing, showing the name of such ditch, canal, or of the reservoir supplied by such feeder, the point at which the head-gate thereof is situated (if it be a new construction), the size of the ditch, canal or feeder, in width and depth, and the carrying capacity thereof in cubic feet per second, the description of the line thereof, and the time when the work was commenced, and the name or names of the owner or owners thereof, together with a map showing the route thereof, the legal sub-divisions of the land, if on surveyed lands, with proper corners and distances, and in case of an enlargement, the depth and width, also the carrying capacity of the ditch enlarged, with the width and depth of the ditch, canal or feeder as enlarged, and the increased carrying capacity of the same thereby occasioned, and the time when such enlargement was commenced, and no priority of right for any purpose shall attach to any such construction or enlargement until record is made. [Sec. 2, p. 162, acts 1881.]

G. S. 1721. Only Irrigation Ditches referred to in the last above section.]

This act shall apply to and effect only ditches, canals or feeders used for carrying water for the purpose of irrigation, and for no other purpose whatever. [Sec. 3, p. 162, acts 1881.]

The requirements in case of an enlargement seem to presume that the requirements of a new construction have been complied with. If not, they should also be included in the statement for an enlargement.

Form of Statement under G. S. 1720.

The undersigned, proprietors of the . . . ditch or canal, in compliance with Section 1720 of the General Statutes of the State of Colorado, and for the purpose of securing to themselves the benefit of said section, hereby make the following statement for filing and record:

ditch.

I. The name of our ditch or canal is the 2. The head-gate of said ditch is situated on the bank of (name of stream) in . . . County, Colorado, at a point (locate by reference to some well-defined landmark.)

3. The size of said ditch is . . . feet in width on the bottom, and . . . feet in width at high-water mark, and . . . feet in depth.

4. The carrying capacity of said ditch is of water per second of time.

cubic feet

5. The line of said ditch begins at the point above named as the location of the head-gate, and runs thence (describe the line) as will appear from the map of the said ditch annexed hereto, and made a part of this statement.

6. The work of construction of said ditch was begun on the .. day of . . ., 18 . .

7. The names of the owners of said ditch are

Witness our hands and seals this

A. D. 18..

day of

.

[SEAL]

[SEAL]

being first duly sworn on oath, says that

he is one of the persons named as owners in the above statement; that he has read said statement, and that the same is true of his own knowledge.

Subscribed and sworn to before me

this . . . day of

A. D. 18. .í

In case of an enlargement, put that word in place of "construction" in paragraph 1; and in place of 3, 4, and 6, as above, put:

3. The original size of said ditch or canal is. feet in width on the bottom, and . . . feet in width at high water mark on the same, and . . . feet in depth; and the size thereof, as enlarged, feet in width on the bottom, and . . . feet in width at high-water mark on the same, and . . . feet in depth. 4. The original carrying capacity of said ditch or canal is cubic feet of water per second of time, and the increased capacity thereof occasioned by such enlargement is . . . cubic feet of water per second of time.

6. The work on the enlargement of said ditch was begun on the . . . day of . . ., A. D. 18 . ..

It would seem that, under G. S. 1720, the date of the beginning of survey for the line of the ditch may be taken as the time of beginning work. In Parke vs. Kilham, 8 Cal., 77, held, the line upon which a ditch is actually intended to be dug should be run within a reasonable time after the line of preliminary survey has been run, in order to make the right of the ditchowners date back to the survey. What is a reasonable time must depend upon the circumstances of the case. An allegation that a ditch carries a certain number of cubic feet of water, and that the flow is a given rate per second, without stating the duration of time within.

which the named quantity of water passes, is not an allegation of the capacity of such ditch.

Moore vs. Clear Lake Water Works, 5 West

Coast Rep. (Cal.), 177.

The carrying capacity of a ditch is to be measured by its capacity at the smallest point; but if the general size and capacity of the ditch indicate that more water is to be used than is turned into it at first, a reasonable time is to be allowed to remove obstructions or change the grade, in order that the ditch may be filled to its proper capacity.

Ophir S. M. Co. vs. Carpenter, 6 Nev. 393.

White vs. Todd's Water Co., 8 Cal., 443.

This act (G. S. 1720) merely adds to the general requirements necessary in order to secure a priority of appropriation on the part of ditch and reservoir owners. There must in all cases. be a successful application to the beneficial use designed within a reasonable time from the commencement of the work, and the use of due diligence to this end.

Thomas vs. Guiraud, 6 Colo., 530.

Sieber et al. vs. Frink et al., 7 Id., 153.

Larimer Co. Res. Co. vs. People, 9 West Coast

Rep. (Colo.), 527.

Weaver vs. Eureka Lake Co., 15 Cal., 271.

Kimball vs. Gearhart, 12 Cal., 27.

There must also be a present bona fide design or intention of applying the water to some immediate useful or beneficial purpose, or a present bona fide contemplation of such a future application; otherwise no priority can be acquired, no matter how elaborate