68 
The case coming on appeal by both the defendants and plaintiffs to the 
supreme court is known a- "The Handy Ditch Co. y. The Loudon Irri- 
gating Canal Co." (62 Pacific Reporter). The facts in the case were. 
The Handy Ditch Company purchased the Big Thompson Irrigating 
Ditch and the lands under it, some 800 acres, abandoned the latter, and 
applied to the superintendent of irrigation to transfer the water to the 
Handy Ditch some L0 miles above the head gate of the old ditch. The 
amount of the decree was 78 cubic feel per second, dated February 25, 
L865, being the fifth decree in the district, and commonly known as 
•• No. 5 ditch." The superintendent allowed but 40 cubic feet per sec- 
ond to be transferred, as he contended that the old ditch could not carry 
much more than one-half of its decree. On appeal to the State engi- 
neer he caused the ditch to he measured and levels run. from which 
the estimated capacity was shown to be from 100 to 150 cubic feet per 
second. He therefore ordered the full amount to be transferred. In 
the meantime, however, the north-side ditches had brought suit, as 
stated, in the Larimer County court, which court held that the evi- 
dence showed that not more than 20 of the 7^ cubic feet per second 
had been used of late years. It excluded evidence which tended to 
show that much or all of the 20 cubic feet per second used was seepage 
and return water which entered the river between the old and new 
points of diversion, upholding- the argument of the Handy Company 
that the decree was not for water which might, at some date subse- 
quent to the date of the decree, have found its way back to the river, 
but for that which constituted part of the original supply in the stream. 
In its appeal to the supreme court the Handy Company urged that 
the finding was in error, in that the evidence did not warrant the 
reduction from 78 to 20 cubic feet per second, and that the court erred 
in not admitting evidence as to the size and capacity of the ditch. The 
defendants appealed on the ground that evidence was excluded which 
would have shown that whatever water had been used by "No. 5 " 
ditch was water which entered the river as seepage below the head gate 
of the Handy Ditch, and if any water was transferred that it would be 
withdrawn from the original supply in the stream, and the use of which 
they theretofore had enjoyed. 
The supreme court affirmed the decision of the lower court so far 
as it related to the amount of water used by the "No. 5*' ditch, but 
remanded the case w ith instructions that if a new trial was had it should 
embrace only the question of whether the 20 feet found to have been 
used by *' No. 5" ditch was in whole or in part seepage water and not 
available for the tilling of decrees of the Loudon or other older ditches. 
The decision of the supreme court will probably stand, namely, that 
20 of the 78 cubic feet decreed to the "No. 5" ditch will be transferred 
to the Handy. With the final determination of this suit the litigation 
will end, though in the district court at present are some six suits in 
