reality the thing decreed is a completed appropriation." Combs, et al. v. Farmers H. L. C. & R. Co., 38 Colo. 420-429, 88 Pac. 396.

k. When may be attacked-Conditional.

It is certainly not an attack on the decree to inquire. and ascertain whether the condition precedent to rights therein named, have been complied with in apt time, or at all. Drach v. Isola, 48 Colo. 134-144, 109 Pac. 748.

"The law will not permit defendants, after a lapse of fifteen years from the date of the decree, and twenty-three years after the construction of their ditch, to perfect a contingent or inchoate right to make further appropriations, and thereby take away plaintiffs' vested rights previously acquired under the same or like decree." Id., 145.

"If, on the other hand, the decrees of 1889 be conditional, this is a procedure in which the completed appropriations may be ascertained, and the vested rights of plaintiffs protected." Id., 141.

1. Obstructions in stream.

"The provision in this decree should enjoin the appellant from making, constructing or building any obstruction in the bed of the river in the vicinity of the headgate of said mill ditch as originally located, which shall damage or seriously endanger the lands or property of defendant ****” Crisman v. Heiderer, 5 Colo. 589-598.

Sec. 17. Determining the amount of water--Acres considered. The number of acres, which have been irrigated, are taken into consideration in determining the amount of water to which a ditch is entitled. Bates v. Hall, 44 Colo. 360-368, 98 Pac. 3.

Sec. 18. Distribution under decree.

Distribution must be made in accordance with the decrees of priority determined on adjudication, and not other

wise. Combs, et al., v. Farmers H. L. C. & R. Co., 38 Colo. 420-432, 88 Pac. 396. See Distribution, Sec. 147.

See Irrigation District, Sec. 205.

Sec. 19 Duty of ditch owners in re adjudication.

In an adjudication proceeding it is the duty of the ditch company to appear and represent its consumers. Combs, et al., v. Farmers H. L. C. & R. Co., 38 Colo. 420-432, 88 Pac. 396; Wheeler v. Northern C. I. Co., 10 Colo. 582-592, 17 Pac. 487; Farmers H. L. C. Co. v. Southworth, 13 Colo. 111-121, 21 Pac.1028; Canal Co. v. Loutsenheizer, 23 Colo. 233-235, 48 Pac. 532.

Sec. 20. Effect of adjudication.

An adjudication is res adjudicata as to the parties thereto. See Pleading and Practice. See Res Adjudicata, Sec. 266. Broad Run Co. v. Deuel & Synder Co., 47 Colo. 573-579. 108 Pac. 755; Ditch Co. v. Ditch Co., 22 Colo. 115, 43 Pac. 540; Louden C. Co. v. Handy D. Co., 22 Colo. 102, 43 Pac. 535; New Mercer D. Co. v. Armstrong, 21 Colo. 357, 40 Pac. 989; Canal Co. v. Loutsenhezer D. Co., 23 Colo. 233, 48 Pac. 233; Crippen, Trustee, v. The X. Y. I. D. Co., 32 Colo. 447, 76 Pac. 794.

The rights determined by an adjudication are those pertaining to the ditches and not the rights of the individual consumers under the ditches. Rollins v. Fearnley, 45 Colo. 319-325, 101 Pac. 345;Combs, et al., v. Farmers H. L. C. & R. Co., 38 Colo. 420-427, 88 Pac. 396; Putnam v. Curtis, 7 Colo. App. 437-440, 43 Pac. 1056; Park v. Park, 45 Colo. 347. Sec. 21. For domestic mining or milling purposes.

"The proceedings under said acts (of 1879 and 1881) are purely statutory, and can not be resorted to for the purpose of determining the claims of parties to the use of water for domestic or other purposes not fairly included within the meaning of the term 'irrigation.' Platte W. Co. v. Northern Colo. I. Co., 12 Colo. 525-529, 31 Pac. 901.

999

Sec. 22. Jurisdiction of court in adjudication proceeding.

Syl. "Where a district court properly obtains jurisdiction and proceeds under the statute to adjudicate the priorities of water rights in a water district and enters a decree awarding priorities, its jurisdiction is exclusive, and as between parties to such decree another district court has no jurisdiction in an ordinary civil action to review such decree or to pass upon questions of priority to the use of water between the parties thereto, and a judgment by another court attempting such review or to pass upon questions settled by such decree is void and may not be pleaded as res adjudicata in a subsequent action involving the same question in the court. having jurisdiction." Con. Home S. D. & R. Co. v. New Loveland & G. I. & L. Co., 27 Colo. 521 62 Pac. 364; Louden C. Co. v. Handy D. Co. 22 Colo. 102, 43 Pac. 535; Canal Co. v. Loutsenheizer, 23 Colo. 233, 48 Pac. 532.

Where a stream flows in two counties, the district court of the county first obtaining jurisdiction shall maintain it, and it shall be exclusive. Presbyterian College v. Poole, 25 Colo. 50; Louden C. Co. v. Handy D. Co., 22 Colo. 102, 43 Pac. 535.

Sec. 23. Limitation of actions for adjudication.

See Res Adjudicata, Secs. 265-270.

See Review and Rehearing, Sec. 271.

a. As to proceeding after the statute has run.
See Pleading and Practice, Sec. 222d.
See Vested Rights.

b. Four years.

Syl. "A decree in a proceeding under the irrigation acts cannot, in the absence of fraud, be reopened by a party thereto after the lapse of four years." Ditch Co. v. Ditch Co., 22 Colo. 115, 43 Pac. 540.

C. Two years.

"A party to the statutory proceeding, even though he offers no proof in support of the claim which he files, is bound by the provisions of the decree unless within the two years' period of limitation he applies for a review.” Crippen, Trustee, v. The X. Y. I. D. Co., 32 Colo. 447-460, 76 Pac. 794; Greer v. Heiser, 16 Colo. 306, 26 Pac. 770; Canal Co. v. Loutsenheizer D. Co., 23 Colo. 233, 48 Pac. 532; Nichols v. McIntosh, 19 Colo. 22, 34 Pac. 278; Loudon C. Co. v. Handy D. Co., 22 Colo. 102, 43 Pac. 535; Handy D. Co. v. South Side D. Co., et al., 26 Colo. 333, 55 Pac. 30.

d. Parties affected.

"All persons are forever barred from setting up any claim adverse to its (the adjudication) effect." Broad Run C. Co. v. Deuel & Synder Co., 47 Colo. 573-580, 108 Pac. 755.

In the above cited case, the date of the priority claimed was of the year 1881, which was subsequent to the statute of 1879. It is not held that claimants of rights, which vested prior to the adoption of the constitution and passage of the statutes, should not be protected. The above case modifies Nichols v. McIntosh, 19 Colo. 22, 34 Pac. 278, and Greer v. Heiser, 16 Colo. 306, 26 Pac. 770.

See Pleading and Practice-Res Adjudicata.

The statute is held to apply to those situated in different districts, although taking water from the same stream, and who were not parties to the adjudication, and were not in the district. Ft. Lyon C. Co., et al., v. The S. B. & I. L. Co., et al., 39 Colo. 332, 90 Pac. 1023.

Syl. "The right to bring an independent action to establish priority to the use of water within four years after a statutory adjudication has been had, as permitted by section 2434 Mills *** may be exercised only by those who were not parties to the proceeding, or, if parties thereto, whose right of action grows out of matters arising subsequent to the decree." Canal Co. v. Loutsenheizer, 23 Colo. 233; 48 Pac.

532. Modified by Broad Run Co. v. Deuel & Synder Co., 47 Colo. 573. 108 Pac. 755.

e. Laches.

That which will excuse laches will not affect the statute of limitations. Patterson v. Ft. Lyon C. Co., et al., 36 Colo. 175-180, 84 Pac. 807.

A claim, that the holders of excess rights were trespassers and for that reason the statute should not run, is untenable. Id. 180.

f. Re-argument or review.

"No re-argument or review, either with or without any additional evidence, of any decree made under the provisions of the irrigation act can be had by one who was a party, unless applied for within two years from the time of its entry." Waterman v. Hughes, et al., 33 Colo. 270-275, 80 Pac. 891. See Pleading and Practice.

See Review and Rehearing.

g. Sale of excess rights.

See Canal Companies, Sec. 93b.

The statute of limitations, that "bills of relief *** in all other cases not herein provided for shall be filed within five years after the cause thereof shall accure, and not after," begins to run against actions to determine and cancel rights to excess water or to cancel the sale of rights in excess of the carrying capacity of a ditch, on the date of the sale of such excess rights. Another action in court pending and undisposed of does not stop the running of the statute during such pendency. Patterson v. Ft. Lyon C. Co., et al., 36 Colo. 175178, 84 Pac. 807.

The statute of limitations will run against actions to cancel the sale of excess rights.

Sec. 24. Nature of adjudication.

a. Proceeding in rem.

An adjudication is a proceeding in rem. Louden C. Co.