41 



cent of the total amount decreed them. These were, however, the 

 hii>ger ditches. Tlie smaHer ditches received decrees even more iii 

 excess of tlieir capacities. This estimate is based on the capacities 

 of the ditches, not on the vohnne of water which lias been })iit to a 

 beneficial use. The excess is, therefore, larijer than that iriven. How- 

 ever, only a few of the large ditches in Colorado have rijrhts to more 

 water than thev can carry, or more than is used under them when it 

 can be secured, and few of them receive their full decreed amount 

 during times of low water. The rights of most of the large ditches 

 are prior to any rights acquired by appropriation in Nebraska. 

 Therefore, the cutting down of the rights of the Colorado ditches to 

 the amounts actually used by them would be of no benefit to Nebraska 

 ditches, since the water taken from the early ditches would go to 

 supply ditches in Colorado, which, although later than the ditches 

 which would be cut down, are still prior to the ditches in Nebraska. 



What is true as to excessive rights in Colorado is equally true as 

 to rights in Nebraska. The State board of irrigation of Nebraska 

 held an adjudication on the South Platte and allowed rights to 

 large areas which were not yet irrigated, on condition that the canals 

 be constructed and the water applied to the land. In the case of 

 The Farmers' Irrigation District v., Frank « the supreme court of 

 Nebraska held that in a similar case on the North Platte the State 

 board of irrigation had no authoritv to irrant rights, but was lim- 

 ited to definins: rights as thev existed at the time of the adjudication; 

 that therefore the conditions prescribed by the board would not liold 

 and the ditch owners had absolute rights to the volumes allotted to 

 them by the board, which rights could be lost only by abandonment, 

 which required ten years' nonuse. Under this decision the situation 

 in Nebraska is even worse than that in Colorado. In Colorado 

 there was at least a claim that the water had been used or that ditches 

 had been built, while in Nebraska no such claim was made, but the 

 use was almost entirely prospective. Had the board known that 

 it was not empowered to fix these conditions probably it would have 

 defined the rights on the basis of what had been used rather than 

 on the prospective use, but the decision of the supreme, court i)uts 

 on the decree of the board a meaning which was never intended and 

 which contains no element of justice to other appropriators from 

 the stream. The court states that the board could not grant a right, 

 while the effect of the decisions is that the board did grant a light. 

 We have, then, in the two States conditions as to excessive rights dif- 

 fering onlv in decree. In Colorado the courts in determining rights 



o 100 N. W., 28G. 



