CHAPTER XXIII. REVIEW AND REHEARING. Petition for § 271. Proceeding § 272. Parties § 273. Strangers attacking § 274. To ditches § 275. Good cause must be shown § 276. Sec. 271. Petition for. A petition for the purpose of securing a review and rehearing must state a cause of action, that is to say, it must state facts from which it appears that the party applying for such reargument and review of the decree has been aggrieved thereby, so that the court to which such petition is addressed, may say upon inspection, if these facts be true, the decree should be modified. Crippen-Lawrence Co. v. Burroughs, et al., 27 Colo. 155, 60 Pac. 487. Sec. 272. Proceeding. On an application under Colo. Statutes, for a review of a decree adjudicating water rights, the court has authority to vacate the decree pending the determination of the review. And where an order vacating the decree is entered and the application for review is afterwards dismissed, the court should re-enter the original decree. "It is true, two years have been given by the statute for an application to re-open a decree, but it does not follow that, in every conceivable case, and in all circumstances, a party may have the full length of time for this purpose when he has negligently failed to avail himself of a prior opportunity therefor.” Rio Grande L. & C. Co. v. Prairie D. Co., 27 Colo. 225-230, 60 Pac. 726. Sec. 273. Parties. If a decree be opened upon a proper showing by one party, another party not having the right to secure the original opening thereof can not be heard on independent objections. Id. 231. "A stranger may move to set aside a decree if he is injuriously affected thereby." Crippen, Trustee, v. The X. Y. I. D. Co., 32 Colo. 447-451, 76 Pac. 794. Sec. 275. To Ditches. See Decree, Sec. 16. Sec. 276. Good cause must be shown. "The statute allowing a review of a decree contemplates that good cause must be shown therefor; that a petition for this purpose must state a cause of action." Crippen-Lawrence Co. v. Burroughs, et al., 27 Colo. 155-157, 60 Pac. 487; Rio Grande L. & C. Co. v. Prairie D. Co., 27 Colo. 225-229, 60 Pac. 726. Sec. 277. Objections and exceptions. to "If a party knowingly and intentionally neglects to apprise a court of his objections to a decree at the time it is rendered, when he has full opportunity to do so, even though he may be given, by the statute, two years within which file file a a petition to reopen it, we think the right to do so, in so far as it is based upon a cause existing at the time the decree was rendered, is conditioned upon his having at that time made an objection to it, and saved an exception to an adverse ruling upon his objection." Rio Grande L. & C. Co. v. Prairie D. Co., 27 Colo. 225-230, 60 Pac. 726. CHAPTER XXIV. STATE OFFICERS. Duties of in distributing water § 278. (a) Closing headgate of ditch. (c) Loaning water. (d) Powers. Superintendent of irrigation § 281. (b) Authority-Nature of. (b) Action for fees. (c) Compensation of. See Canal Companies, Sec. 96. See Pleading and Practice, Sec. 234. Sec. 278. Duties of in distributing water. Primarily their duties are to enforce the decrees of the various claimants to and users of water, from a common source, according to their terms. These officers are not personally concerned in controversies between the various users of water, which may only be adjusted in proper proceedings, brought for that purpose, by those who are the real parties interested in and affected thereby." Boulder D. Co. v. Hoover, 48 Colo. 343-348, 110 Pac. 75. "The improriety of irrigation officers, seeking to have a matter, in which they have no personal or private right, determined, in an action in which they, in an official capacity only are defendants, is manifest. That question must be litigated in a suit between parties whose rights are directly involved. This suit is by the owner of a water right against officials, charged with the duty of the distribution of water, under decreed rights, between the several users thereof, within their jurisdiction, to compel action accordingly. It is neither their duty nor privilege to question the decrees, where regular in form, in full force and unmodified, or to attempt to impeach and nullify them, or in any way impair their efficiency. While it may be that there is a degree of discretion vested in these officers respecting the discharge of their duties, it never was in contemplation that they should assume the burden of litigating questions of dispute between the several water claimants, with reference to their respective rights under decrees duly rendered and in full force." Boulder D. Co. v. Hoover, 48 Colo. 343-347-348, 110 Pac. 75. "It is clear, from the evidence, that plaintiff seeks simply to apply the water decreed to the ditches in question in a new place. Whether this may lawfully and properly be done is not for the water commissioner, or his superior officers, acting in a judicial capacity and on their own initiative, to determine, as was in effect attempted when they declined to turn water out to satisfy the decrees in question. Such questions are between the several users of water for irrigation, who are directly affected, and can not be settled in a suit against the irrigation officials only. These executives may, and indeed should, prevent waste and insist upon economical use, but where there is a real and bona fide dispute as to the relative rights to the use of water under decrees, between several claimants, these officers are not called upon to inject themselves into the controversy and decide between them. There are no third parties here, and no claim is asserted in behalf of any such, and matters affecting the rights of those not before the court clearly may not be here adjudged. They could not be bound even if such adjudication were undertaken and effected." Boulder D. Co. v. Hoover, 48 Colo. 343-348349, 110 Pac. 75. Sec. 279. Parties in action to quiet title. See Quieting Title, Sec. 249. If one opens a headgate which has been closed by a water commissioner he is not liable for contempt of court especially in the absence in the decree in adjudication of any order for non-interference. Roberson v. People, ex rel, Soule, Water Com., 40 Colo. 119, 90 Pac. 79. b. Compensation of. Water commissioners are entitled to compensation from the counties in their district only. Fravert v. Board of County Coms. of Mesa Co., 39 Colo. 71, 88 Pac. 873; Board of Comr's of Clear Creek Co. v. McLean, 115 Pac. (Colo.) 525. Syl. "Under Mills' Ann. St. Sec. 2387, (Colo. Stats. Ann. Sec. 3434), entitling a water commisioner to pay from the counties in which his district lies, one of three counties in which a district lies is liable for one-third of his compensation, though no services have been rendered in that county, though decreed priorities have not yet been established for ditches therein, and though there is less land irrigated in the county than in either of the other two counties." Board of Comr's of Clear Creek Co. v. McLean, 115 Pac. (Colo.) 525. c. Loaning water. "The water commissioner had no real interest in the questions involved in the case * * * he was simply the agent designated by law for distributing, for purposes of irrigation, the waters of the district, and it was not any part of his duty to appear for said lenders and borrowers and defend their interests in the case any more than it was his duty to appear for and defend the rights of the plaintiffs in the case." Squire, Water Com., v. Livezey, et al., 36 Colo. 302304, 85 Pac. 181. d. Powers. A water commissioner is a police officer of the state but |