2. WATERS AND WATER COURSES (§ 152*)— | structed, in part, to carry and utilize an adAPPROPRIATION OF WATER RIGHTS-DETER- ditional appropriation, acquired by its granMINATION OF PRIORITIES - CONCLUSIVENESS OF ADJUDICATION. A general adjudication of water rights under statutory provisions therefor is conclusive as to parties to the proceeding properly served with notice, and unless impeached for fraud, or application for a review thereof is made by the parties within two years, the provisions of the decree are final and binding.

[Ed. Note.-For other cases, see Waters and Water Courses, Dec. Dig. § 152.*]

tor, of 15 second cubic feet under what is commonly known as the "meadow act" (section 2268, Mills' Ann. St.; § 3176, Rev. St. 1908), and which resulted as the natural overflow of the waters of the stream upon its adjoining meadow lands as early as the year 1875, and which has been continuously used and enjoyed by it and its grantor down to the time of the filing of its petition in June of

3. WATERS AND WATER COURSES (8 152*)-1903. This proceeding was instituted by pe

APPROPRIATION OF WATER RIGHTS-PRIORITIES - DETERMINATION MATTERS ARISING SUBSEQUENT TO THE DECREE." Within the rule that Mills' Ann. St. § 2434, authorizing a claimant of an irrigation priority at any time within four years from a final decree in a statutory adjudication proceeding to bring a suit hitherto allowed by the proper court to determine the priority, authorizes such an action by parties to that proceeding only when their right of action accrues out of "matters arising subsequent to the decree," the quoted phrase means claims of priority for an appropriation made subsequent to the lowest appropriation included in the decree.

titioner by filing its petition under section 2421, Mills' Ann. St., which, among other things, declares that no recognition of any priority shall be regarded by any water commissioner in distributing water in times of scarcity until such time as the claimant, by application to the proper court, has obtained leave and made proof thereof and received his decree therefor. The petitioner here contends that as the original adjudication of water priorities in this water district was made [Ed. Note.-For other cases, see Waters and in November, 1895, and as its ditch was not Water Courses, Dec. Dig. § 152.*] constructed until 1900, and no priority has 4. WATERS AND WATER COURSES (§ 152*)— | hitherto been judicially awarded to it, it is APPROPRIATION OF WATER RIGHTS DETER- entitled in the special proceeding provided by MINATION OF PRIORITIES.

Mills' Ann. St. § 2268, provides that the section 2421 to an adjudication thereof, which owner of a meadow watered by the natural over-it prays for, naming the other ditches and apflow of a stream may, when such flow is di-propriations which may be affected by the minished by the construction of irrigation ditch- decree which it asks, even though, as to the es by others, construct a ditch for the irrigation 15 second feet, the decree sought would, if rendered, conflict with and antedate some of the priorities fixed in the original decree. The court appointed a referee to take testimony and make findings of fact, which was done, and on such finding the court rendered a decree awarding to petitioner 90 second cubic feet of water, whose priority was to date from the beginning of the construction of its ditch in 1900, concerning which there is no controversy here, but refused to allow the appropriation based upon the so-called "meadow act." The latter portion only of the decree is appealed from, and the only question argued here is whether petitioner is entitled to a decree for its ditch of a priority of 15 second cubic feet, to date, by way of relation, to the earliest time it enjoyed and

of the meadow. Section 2434 authorizes a
claimant of an irrigation priority within four
years from a final decree in a statutory adju-
dication proceeding to bring any suit hitherto
allowed by the proper court to determine the
priority. Section 2435 provides that after four
years from a final decree all parties whose in-
terests are affected shall be deemed to have ac-
quiesced in it, and thereafter all persons shall
be forever barred from setting up any claim to
priority adverse or contrary to the effect of
the decree. Held, that the claimant of a right
under section 2268 in favor of a ditch con-
structed subsequent to a general adjudication
decree could not, more than four years after
such decree, maintain a proceeding to establish
his right relating back to a date prior to the
rights adjudicated in the general decree.
[Ed. Note.-For other cases, see Waters and
Water Courses, Dec. Dig. § 152.*]

.

Appeal from District Court, Weld County; Christian A. Bennett, Judge.

Special proceeding by the Broad Run Investment Company against the Deuel & Snyder Improvement Company and others. From the decree, petitioner appeals. Affirmed.

had the benefit of the natural overflow of the stream upon its meadow lands.

As preliminary to the main discussion, we observe that several of the priorities, as fixed by the original decree of adjudication ren

James W. McCreery, for appellant. H. N. dered in 1895, are of a date later than that Haynes, for appellees.

which petitioner claims as a "meadow" appropriation by way of relation. Necessarily, therefore, if a decree in its favor, as prayed for, is granted, it would materially and injuriously affect and subordinate a number of priorities under the original decree, because it would antedate them. Though objection has not been raised by the respondent that this proceeding is not the proper remedy, we notice the point for ourselves that we may not be understood as sanctioning the practice

of entertaining the statutory special proceed-| time of, and for a period of nearly nine years ing, when, as here, it appears that an adjudi- before, the rendering of the original adjudication as to the meadow priority is invoked cation decree in 1895. Before that decree by one who claims that it was not a par- was rendered, and pending that proceeding, a ty to the original adjudication proceeding, number of other owners of meadow lands, and when, if the decree passes, it will ma- situate with reference to the stream the same terially affect and interfere with the priori- as the lands of petitioner, after the natural ties of the original decree. It is true that, overflow was lessened, and after they had under section 2434 of the statute, permission constructed ditches through which to enjoy is granted to persons who were not parties their meadow appropriations, appeared in to, or who did not appear in, the proceedings that proceeding and offered their proofs and which culminated in the original decree, to received for their ditches decrees as of a establish their right to the use of water by priority relating back to the time when they some appropriate action or suit, such as was first enjoyed the benefits of the natural overallowed in any court of competent jurisdic- flow of the stream. Petitioner's grantor, tion before the so-called "adjudicating stat- however, did not avail himself of this priviutes" were enacted, even though a determina- lege, and no steps were taken by him, or by tion was sought of priorities claimed to be petitioner, directly to utilize the meadow apearlier in time than any of those established propriation through a ditch until the month by the statutory decree. Yet this is not au- of December, 1900, more than three years aftthority for saying that in the special proceed-er the decree was rendered, except through ing under section 2421, which is the one here employed, it is competent for the court to permit a suitor thus to have determined his claim of right to such a priority. Crippen v. X. Y. Irr. Co., 32 Colo. 447, 76 Pac. 794, decided after this proceeding was begun, says the section does not contemplate such a case. If such relief can, in any event, be granted to one not a party to the original proceeding, the available remedy is a suit in equity, and not a proceeding under the statute. For that reason alone, the trial court properly refused to award the priority under consideration, wholly irrespective of the merits. But, since the question of the proper remedy is not raised by the respondent here, and the remedy invoked was the right one for establishing one of petitioner's priorities of a date subsequent to the entry of the decree, we proceed to determine the controversy concerning the other priority claimed, upon its merits, and as if the appropriate remedy was employed.

The facts of this case are, as found by the referee, that, beginning with the year 1881, the meadow lands of the petitioner, during ownership by its grantor, were irrigated as the result of the natural overflow of the stream on whose banks the meadows are situate, and until about the year 1886 crops of hay were grown as the result of that method of natural irrigation. Beginning about the year 1886, a number of large ditches and reservoirs were constructed taking water from the stream, with the result that so much of its waters were diverted that the amount of the natural overflow upon this meadow was materially diminished, and to such an extent that its then owner at one time constructed a ditch through which waters from the stream were diverted in an equal quantity for its artificial irrigation. This ditch seems to have been abandoned, at least its use was discontinued, and the owner afterwards became a stockholder, or a part owner, in another ditch, to which a different priority had been awarded, and through which he irrigated his meadow. These conditions prevailed at the

the abandoned ditch and from a third ditch, as above mentioned. The referee found, and the trial court approved the findings, that under sections 2434, 2435, Mills' Ann. St., the petitioner's rights, if any it ever had, were barred. There was also a finding that petitioner was guilty of laches and had acquiesced in the provisions of the decree to such an extent that it ought not to maintain this proceeding. In substance, section 2434, so far as material here, authorizes a claimant of an irrigation priority, at any time within four years from rendering a final decree in the statutory adjudication proceeding, to bring any suit hitherto allowed in a proper court to determine and establish such priority. Section 2435 reads: "After the lapse of four years from the time of rendering a final decree, in any water district, all parties whose interests are thereby affected shall be deemed and held to have acquiesced in the same, except in case of suits before then brought, and thereafter all persons shall be forever barred from setting up any claim to priority of rights to water for irrigation in such water district adverse or contrary to the effect of such decree."

The precise question thus presented for determination respecting the bar of the statute has not been directly or expressly, though, in principle, we think it has been, decided by this court. The general adjudication statutes have often been before this tribunal for consideration. They have been held to be a legitimate exercise by our General Assembly of the police power of the state, and the proceeding thereby furnished is in the nature of a proceeding in rem. Louden Irr. Canal Co. v. Handy D. Co., 22 Colo. 102, 113, 43 Pac. 535. In this and other cases we have decided that, as to parties to such proceedings, the decree is res adjudicata, and unless impeached for fraud, or application for a re view thereof is made by the parties within two years, the provisions of the decree are final and binding, at least as to them. Louden Irr. Canal Co. v. Handy Ditch Co., supra;

the lapse of the period of four years, although these respective appropriations, sought to be readjudicated, were obtained in separate statutory proceedings in different water districts, and the appropriator in neither district was a party or appeared in the proceedings in the other. The opinion in that case is an exhaustive discussion of the subject, and reviews many of the cases in this court, including those which we have cited in this opinion. If the statute operates as a bar in such a case, it certainly does in the case at bar.

The same conclusion may be reached by another process of reasoning. We may rightfully assume that in the original decree of adjudication the proper notices were given and published, which, if the statute in that respect was complied with, would bind this petitioner, the same as if he had actually appeared in, or participated in, the original proceeding, since it was in the nature of a proceeding in rem, the petitioner a legal resident, and the priority which it claimed was for lands situate in this water district. In Combs v. Farmers' H. L. C. & R. Co., 38 Colo. 420, at page 426, 88 Pac. 396, 398, it was said: "Ample provision is made for personal service of notice upon ditch owners, and for publication of notice for those who cannot thus be served, and this notice requires not only all owners of ditches and other persons interested therein, but also all persons interested as owners or consumers of water, to be present at the hearing provided for, and present proofs of their priority of right to water by appropriation." And it was further said in that case that this statutory proceeding contemplates that there shall be an adjudication not only of the priorities of appropria

Ditch Co. v. Ditch Co., 22 Colo. 115, 43 Pac. | trict to determine their relative rights after 540; New Mercer Ditch Co. v. Armstrong, 21 Colo. 357, 40 Pac. 989; Crippen v. X. Y. Irr. D. Co., supra. In Canal Co. v. Loutsenhizer Ditch Co., 23 Colo. 233, 48 Pac. 532, it was said that a decree in such proceedings is conclusive as to the parties thereto after the expiration of two years. It was also held that, under section 2434, right to bring such action to establish priorities as it authorizes, within four years after a statutory adjudication has been made, may be exercised only by those who were not parties to that proceeding, or, if parties thereto, whose right of action accrues out of matters arising subsequent to the decree. See, also, Crippen Case, supra. It is entirely clear that "matters arising subsequent to the decree" means claims of priority for an appropriation made subsequent to the lowest appropriation included in the decree. This is expressly stated in the Crippen Case, where it was said that the section, speaking of section 2421, applies to an adjudication of priorities of a date later than the lowest one fixed by former decrees. The Crippen Case clearly foreshadows the ruling, if it does not, in effect, determine, that the bar of the statute (section 2435) applies to such a claim as is here involved. That was a case where one who was a party to the original proceeding, but of fered no proof of his priority, claimed that the two years' limitation did not apply to him, but the court said that it did. It also again said that section 2434-the four years' limitation-refers to an independent action and may be invoked only by those who were not parties to the original proceeding, while section 2421 applies to all persons who seek to establish priorities of a later date than the lowest one fixed by an original decree. We cannot sanction the claim of the petition of water between ditch companies and tioner here. It is that, irrespective of the question of time, one who has acquired an appropriation for his meadow lands, as the result of the natural overflow of the waters of the stream, may, when the same has become diminished in quantity, and whenever thereafter it suits his convenience, construct a ditch and have a priority awarded to date back by way of relation to his meadow appropriation, even though such priority antedates the priorities fixed by a previous statutory decree. We think Ft. Lyon Canal Co. v. Arkansas Valley, S. B. & Irr. L. Co., 39 Colo. 332, 90 Pac. 1023, the opinion in which was handed down after the briefs in this action were filed, is conclusive against petitioner. It was there held that, after the lapse of four years from the time of render-proceeding contemplated not only an adjudiing a water decree in any water district, all persons are forever barred from setting up any claim adverse to its effect, and that the bar applies to appropriations in different districts taking waters from the same stream, preventing an independent action by an ap-ed flow of the natural waters of the stream, propriator in one water district against an

owners of ditches, but also "an adjudication of all other questions of law and questions of right growing out of, or in any way connected therewith." While it is true that the petitioner here did not, during the pendency of the original adjudication proceeding, file therein its claim of priority of right through the ditch in question, because it was not then constructed, yet it did claim, and here asserts, that it was then the owner of a priority which was conferred upon it by the so-called "meadow act," and which had been diminished by reason of other appropriations, and certainly this claim of an appropriation grew out of, and was involved in and connected with, the claims of appropriation by other ditch, canal, and reservoir owners. The

cation to ditch, reservoir, and canal owners, but an adjudication as to all persons who claim appropriations of water by whatever means or medium such appropriation was made and enjoyed. Because of the diminish

petitioner was not able to enjoy its meadow

than nine years before the final decree was [ and which are in entire harmony with the rendered. It, or its grantor, claimed to own conclusions herein reached.

an appropriation in this water district while

The judgment of the district court is af

STEELE, C. J., and MUSSER, J., concur.

(32 Nev. 360)

these proceedings were pending. It is charg-firmed. ed with notice thereof, and though it was deprived of the natural flow of the stream, and had constructed, and had for a time used, a ditch with which to obtain water for its meadow lands, and for a portion of the time used other appropriations for irrigating the same, GIBSON et al. v. HJUL et al. (MITCHELL, still it did not, as it might have done, construct a ditch while the original proceeding was pending and apply for and attempt to get a decree therefor with which to utilize its meadow appropriation.

Intervener). (No. 1,858.)

(Supreme Court of Nevada. April 30, 1910.) 1. PARTIES (§ 93*)-IMPROPER INTERVENTION -OBJECTIONS.

Even though intervener did not have such an interest in the result of the suit between

swer to intervener's complaint, the court had jurisdiction of the parties as well as of the subject-matter.

[Ed. Note.-For other cases, see Parties, Dec. Dig. § 93.*]

2. APPEAL AND ERROR (§ 1056*)-HARMLESS ERROR.

Rejection of evidence to show acts of ownership by intervener's grantor was harmless; defendants not questioning the ownership of such grantor to a time six years after such acts. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4187-4193; Dec. Dig. § 1056.*]

3. TRIAL (§ 59*)—ADMISSION OF EVIDENCE ORDER OF ADMISSION-DISCRETION.

The court has discretion to admit evidence out of the regular order subject to the later supplying of other evidence which will establish its relevancy or materiality.

Our conclusion, therefore, and for the reasons given, is that whether petitioner was, plaintiffs and defendants as would entitle him to intervene, yet he having been permitted to do or was not, a party to the original proceed- so, and, after plaintiffs dismissed their coming, it is bound. If a party, or properly serv: plaint, the case having gone to trial between ined with notice, the two years' limitation op- by their pleadings, intervener having thus virtervener and defendants on the issues raised erates as a bar. If not a party, or if not duly tually become the plaintiff, and defendants, at served with notice, the four years' statute is the time plaintiffs dismissed their complaint, a bar. And this is so since section 2434 pro- not having asked to have the entire proceedings vides that an independent action or proceed-ceeded to trial' on the issues raised by their andismissed, but, without further objection, proing in a competent court of jurisdiction may be brought by one who was not a party to the original proceedings, within four years from the rendering of the final decree, even though in such action a judgment might be rendered affecting or superseding some one or more clauses of the final decree; and as it also appears that no such independent action, or other proceeding, statutory or other, was instituted by petitioner within four years after the rendering of the original decree, we are of opinion that section 2435 bars petitioner's rights, for it expressly says that, after the lapse of four years from the time of rendering a final decree, all persons who have not, in the meantime, by the independent action provided for in the preceding section, had their rights judicially ascertained, are forever barred from setting up any claim and priority of rights to water for irrigation in such water districts, adverse or contrary to the effect of the decree. Petitioner's claim of right with respect to his meadow appropriation, if determined by the court in this proceeding in accordance with his claim, would be adverse and contrary to the effect of the decree of 1895; hence it is altogether clear, under the express language of the statute, as construed by our previous decisions, that the claim is barred. We are not called upon to express an opinion as to the finding of the court that petitioner's laches and acquiescence estop it to assert the claim which it now makes, since we are satisfied that the statute of limitations is a complete bar. In Nichols v. McIntosh, 19 Colo. 22, 34 Pac. 278, and Greer v. Heiser, 16 Colo. 306, 26 Pac. 770, there may be expressions inconsistent with what is here decided; but, if so, such former observations, or holdings, have been modified or superseded by our later cases, some of which are referred to in this opinion,

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 138-145; Dec. Dig. § 59.*] 4. APPEAL AND ERROR (§ 1056*)-HARMLESS ERROR-EXCLUSION OF EVIDENCE.

Even if it was permissible, on cross-examination of one who had testified that he and his partner had given up their case, to ask him how or why they had given it up, exclusion of the testimony, immaterial on any issue, was harmless.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4187-4193; Dec. Dig. § 1056.*]

5. MINES AND MINERALS (§ 22*)-LOCATIONNOTICE-RECORDING.

A notice of location of a mining claim is not required by Comp. Laws, § 208 et seq., to be recorded.

[Ed. Note.-For other cases, see Mines and Minerals, Cent. Dig. § 45; Dec. Dig. § 22.*] 6. MINES AND MINERALS (§ 38*)-NOTICE OF LOCATION-ADMISSION IN EVIDENCE.

A notice of location of a mining claim, while not answering the requirements of Comp. Laws, § 210, for a certificate of location, and so not evidence of an act of location, is admissible in support of a claim of adverse possession, and to explain testimony.

[Ed. Note.-For other cases, see Mines and Minerals, Dec. Dig. § 38.*]

For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes

7. MINES AND MINERALS (§ 21*)-CERTIFICATE | Pardy, was at the time of making the location OF LOCATION-RECORD.