may take the Boyd and Freeman ditch which has 99.38 cubic feet awarded it in 1873, while the crops under it in 1888, said to be irrigated, were 320 acres, which is, I believe, all the land under the ditch owned by its proprietors. This would be a duty of less than four acres to the cubic foot per second. Again we may take the B. H. Eaton ditch, which was awarded for 1872 forty-one cubic feet per second, and had in irrigated crops, 1888, 330 acres, or a duty of eight acres per cubic foot per second. The John Coy ditch is credited with thirty-one feet and irrigated in same years 160 acres, or has a duty of about five acres per foot. So it is pretty much through the end of the list, and so much for the value of interested human testimony. Of course this exorbitant claim of nearly 700 cubic feet per second, before the colony ditches can get any, would be ruinous, could these parties demand all this water. But the provision in the decree that a party can only get water for beneficial use, renders this excessive previous appropriation comparatively harmless. Again, these small older ditches are pretty well up stream for the most part, and are all on the first bottom, so that excessive irrigation from them gets back again into the river and can be used over again by the ditches lower down. It may be farther said that during the year 1888 there were only twenty-six days when the discharge of the Poudre was more than 700 cubic feet per second. But bad as this was in our district, it was still worse in the St. Vrain. Here the claims of the old settlers seem to have been allowed to run riot. Up to the first day of April, 1879, 808.58 feet were awarded, while the greatest discharge of that stream for 1888 was less than 500 feet per second, while the average for June of that year was, as we have seen, only 300 feet. But the Boulder district is still worse, since, for April first, 1870, there were claimed 2,234 feet. This district has since been divided, but the con.bined average of both streams for June, 1888, was only 430 feet. The total quantity claimed by this Boulder district before division was 4,842 feet, for the Poudre, 4,632, and for St. Vrain, 2,854. We will conclude this part of the subject before us with the following apposite quotation from the report of Elwood Mead, assistant state engineer for 1886: "In district number six I was able to gauge twelve out of fifty recorded ditches of Boulder and South Boulder creeks. While gauging the canals of this district, my attention was very forcibly called to a matter to which it seems proper to refer. This is the wide discrepancy which often exists between the decreed and actual carrying capacity of ditches and canals. So great was this in some instances, that the results of the gaugings and the decreed capacity seemed to have no connection with each other. Ditches were met with having dec reed capacities of two, three and even five times the volume they are capable of carrying, ever have carried, or will probably ever need. Other ditches in the same district have decrees which fairly represent their actual needs. * * * "The majority of the decrees of small ditches are based on the testimony of men having no engineering training or experience, and however honest the estimate may have been, it is in the majority of cases, a mistaken one, being almost universally too large. The remedy would seem to be to permit no decrees to be rendered until the state had been represented, and an estimate of the capacity of the ditch made by some competent and disinterested engineer, either the state engineer or some one selected by him." It may be added that in conversation with the gentleman above quoted, the author was informed that although our district was the least faulty in this respect, and especially so in regard to the recent larger ditches, still plenty of cases could be found among the smaller ones nearly as bad as those reported above. Still, however imperfect these decrees, the law as a whole has proved a great blessing, because it put the distribution of water into the hands of one man, and so prevented the bloodshed that would have been inevitable had things remained much longer as they were. So This is strikingly illustrated by what happened next summer. All the districts except ours had been remiss in prosecuting the matter of getting a referee appointed, and bringing the evidence before him. The spring of 1880 was one of the driest and windiest in our experience, and water was scarce during the early part of the summer. a number of these districts that had been so remiss and indifferent, now awoke to the importance of having some better way than every man help himself and the devil take the "down streamer." So the governor was petitioned to appoint commissioners for these districts to go on and divide according to the best of their respective judgments and the equity in each case. CHAPTER X. IRRIGATION LEGISLATION CONTINUED DISTRICT NUMBER THREE MOVES THE M EANTIME District Number Three had its evidence ready for the action of the court in April, and attorneys were employed by the Greeley people to move the court to issue a decree. Our attorneys were met by Messrs. Butler and Rhodes, who claimed to act for the Larimer and Weld County Canal (English Company's), and the result was that the court refused to render a decree, and our attorney reported to the writer that the court considered the irrigation law unconstitutional. The reader will pardon the writer for here quoting his article in The. Greeley Tribune of April 21, 1880, on this matter, because it presents the whole subject in the light of that critical hour better than he could do to-day : "So Judge Elliott has decided that the irrigation law is unconstitutional. No doubt he is conscientious in this opinion. But it is the opinion, nevertheless, of a narrow-minded, conservative lawyer, who fears to proceed upon any ground not covered by a precedent. It will doubtless greatly delight all that class of lawyers who had been looking ahead to endless fat jobs about to come to them from the wasting and ceaseless litigation likely to arise in reference to the establishing |