42 



decreed to many of the ditches more water than they had ever used 

 or could carry. These decrees not being appealed from within the 

 statutory period, the rights are held to be vested and can be lost 

 only by abandonment. Other ditches have used the water belonging 

 to the first ditches under these decrees, but not used by them; but 

 the first ditches have been enlarged to use their surplus, or the excess 

 over their need or capacities has been sold, thereby taking water 

 away from those who had been using it perhaps for years. The 

 excessive rights are therefore a menace to all later rights. In Ne- 

 braska the board conditionally allowed rights for lands yet to be 

 reclaimed, and the supreme court has removed the conditions, so that 

 the rights have vested without the performance of the conditions and 

 can be lost only by abandonment. This leaves all later rights liable 

 to suffer from enlarged use under these excessive rights, and hence 

 discourages development by making the title to the water uncertain 

 pending the expiration of the statutory period for the loss of the 

 excessive rights by abandonment. Fortunately this applies only to 

 rights initiated before 1895 and adjudicated by the State board of 

 irrigation. As these adjudications were held nearly ten years ago 

 and little has been done toward putting to use the water allotted, 

 the time will soon come when these rights can be declared aban- 

 doned if proper actions are brought. 



The excessive rights in both States are a menace to all later rights 

 in either State, but it seems that decrees of each State allowing them 

 must be recognized by the other State until the rights are lost by 

 abandonment." 



EFFECT OF PHYSICAL CONDITIONS. 



So far the rights to South Platte River have been discussed as if 

 there was a fixed supply of water, which, if not taken by one ditch, 

 would reuiain in the stream to be taken by others, and which, if taken 

 by one ditch, was entirely consumed and not available for others. 

 This, however, is not the case. If it were true, only a few of the 

 earliest ditches could be supplied by the Platte River and its tribu- 

 taries. 



To illustrate this: During the latter part of August, 1903, measure- 



aA judgment of a rourt of a sister State, authenticated as prescribed by act 

 of Congress, is conclusive here upon the subject-matter of the suit. An action 

 thereon can only be defeated on the ground that the court had no jurisdiction 

 of the case and there was fraud in procuring the judgment, or by defenses 

 based on matters arising after the judgment was rendered. (Snyder v. Critch- 

 field, 44 Nebr., GG.) 



