v. Handy D. Co., 22 Colo. 102, 43 Pac. 535;Broad Run Co. v. Deuel & Synder Co., 47 Colo. 573-579, 108 Pac. 755.

b. Quieting title.

"It is manifest * *that our proceeding, if not technically one to quict title, is quite analogous thereto, for the object is not merely to settle the individual and several priorities of different appropriators, but the relative priorities as between the different ditches, in which every claimant is seeking to establish his right as against every other person." Crippen, Trustee, v. The X. Y. I. D. Co., 32 Colo. 447-457, 76 Pac. 794.

C. Sui generis.

Syl. "The statutory proceeding to adjudicate priorities of right to the use of water is not an ordinary civil action or proceeding; it is a proceeding sui generis, to which the rules governing ordinary civil actions are not always applicable." Sterling I. Co. v. Downer, 19 Colo. 595, 36 Pac. 787.

Sec. 25. Notice.

Publication of notice of adjudication suffices to make all claimants parties. Broad Run Co. v. Deuel & Synder Co., 47 Colo. 573-581, 108 Pac. 755.

"Our conclusion, therefore, **** is that whether petitioner was or was not a party to the original proceeding, it is bound." Broad Run Co. v. Deuel & Synder Co., 47 Colo. 573-582, 108 Pac. 755.

a. Change of point of diversion.

In an application to change the point of diversion, notice need be published only in the county in which the district court, first obtaining jurisdiction, sits. The trial court may properly order publication in other counties but the statute does not require it to be done. Wadsworth D. Co., et al., v. Brown, 39 Colo. 57-67, 88 Pac. 1060.

Sec. 26. District No. 10.

The adjudication had in District No. 10 is confirmed. Broadmoor S. Co. v. Brookside W. Co., 24 Colo. 541-544, 52 Pac. 792.

Sec. 27. Part of district.

An adjudication of a part only of a district may be had and an adjudication may be had of a tributary of a stream without making appropriators from the main stream, or from other streams in the district, parties. Woods v. Sargent, et al., 43 Colo. 268-289, 95 Pac. 932.

Sec. 28. Police power.

a Statutes.

The adjudication statutes confer the right to the exercise of the police power of the state. Broad Run Co. v. Deuel & Synder Co., 47 Colo. 573-579, 108 Pac. 755.

b. Regulation-Not destruction.

Under the theory of "police power" the legislature can regulate the distribution of water but it can not destroy the right to its use. White v. High Line C. Co., 22 Colo. 191198, 43 Pac. 1028.

Sec. 29. Referees findings.

a. On appeal.

"The findings of a referee are not binding on an appellate court in the sense they would be if the trial judge, whose judgment is reviewed, had seen the witnesses, and heard them testify." La Jara C. & L. S. Assn. v. Hansen, 35 Colo. 105110, 83 Pac. 644.

b. Change by court.

Syl. "Where a referee in a proceeding to adjudicate priorities to the use of water for irrigation, who heard the

witnesses, recommended an award of........to a ditch which the court reduced **** and it does not appear why the court made the change and the evidence is too indefinite to enable the supreme court to determine from it the quantity of water which the ditch should have, the cause will be reversed and remanded to the trial court to proceed upon the evidence before it, together with such other evidence as may be offered, to determine the quantity of water, the ditch is entitled to." Lamson, et al., v. Vailes, et al., 27 Colo. 201, 61 Pac. 231.

Sec. 30. Relation back.

See Sec. 76.

The doctrine of relation back is not affected by the map and statement statute, which is declared to be unconstitutional. Rio Grande L. & C. Co., v. Prairie D. Co., 27 Colo. 225-233, 60 Pac. 726.

Sec. 31. Rights of consumers from ditch.

If, in an adjudication proceeding, the court, before whom all necessary parties are, should determine the rights of consumers under a ditch, would such determination be effectual? See Rollins v. Furnley, 45 Colo. 319-324, 101 Pac. 345'; Contra, Putnam v. Curtis, 7 Colo. App. 437, 43 Pac. 1056; Oppenlander v. Left Hand D. Co., 18 Colo. 142, 31 Pac. 854; Hallett v. Carpenter, 37 Colo. 30, 86 Pac. 317; Evans v. Swan, et al., 38 Colo. 92, 88 Pac. 149; O'Neill, et al., v. Ft, Lyon C. Co., et al., 39 Colo. 487, 90 Pac. 849.

See Priorities.

CHAPTER III.

APPEALS.

Affidavits-Bill of exceptions § 32.

Bill of exceptions lacking § 33.

From State Supreme Court to U. S. Supreme Court § 34.

(a) Grounds for a certificate for an appeal.

(b) Question must be raised in State Court before judgment. Limitation on appeals § 35.

Method of taking appeals § 30.

(a) Statutory.

(b) Ex Parte.

(c) Time.

Parties entitled to an appeal § 37.

(a) Those representing a ditch.

(b) Consumers.

Prejudicial error-Presumption on appeal § 38.

Public Policy § 39.

Remand for new trial-Res adjudicata § 40.

Rehearing and review does not waive right to appeal § 41.
Time for filing transcript § 42.

Transcript-Certification § 43.

Verification of statement for an appeal § 44.

Sec. 32. Bill of exceptions.

Syl. "On an appeal from a decree adjudicating water rights, in order to have considered affidavits filed by appellants in support of petitions for review, such affidavits must be incorporated in a bill of exception, signed and sealed by the trial judge." Daum, et al. v. Conley, et al., 27 Colo 56-57, 59 Pac. 753.

Sec. 33. Bill of exceptions lacking.

"If appellants have no bill of exceptions, or have preserved no exception to the judgment, they would still have the right to have such matters determined as might be pre

sented by the record proper." Daum, et al., v. Conley, et al., 27 Colo. 56-61, 59 Pac. 753.

Sec. 34. From State Supreme Court to U. S. Supreme Court.

a. Grounds for a certificate for an appeal.

"Inasmuch as they made their appropriation of water in accordance with the provisions of the statute in question, and relying upon the same as valid, incurred expenses, and made investments upon the strength of it, and since the legislative and executive departments of the state have recognized its validity since its passage, the appellees have acquired a vested right to their appropriation which, after it was so perfected, it is as much beyond the power of this court, as it would be of the legislature to destroy; and that, if the decision in this case holding unconstitutional the statute should now be applied to them, the practical effect would be to impair the obligation of a contract between appellees and the state which was virtually entered into when appellees made their appropriation upon the faith of the validity of the law." Lamar C. Co. v. Amity L & I. Co., et al., 26 Colo. 370, 378-379, 58 Pac. 600.

"In passing it is pertinent to remark that the Supreme Court of the United States has held that to 'come within the provision of the constitution of the United States, which declares that no state shall pass any law impairing the obligation of contracts, not only must the obligation of a contract have been impaired, but it must have been impaired by some act of the legislative power of the state and not by a decision of its judicial department only.'**** 159 U. S. 103." Lamar C. Co. v. Amity L. & I. Co., et al., 26 Colo. 370-379. 58 Pac. 600.

b. Question must be raised in state court before judgment. The federal question must be raised in the state courts before judgment.

"For when, in the state court, 'the federal question is