70 
The Loveland and Greeley Company relied, however, mainly on its 
decree fixing the priority of right for agricultural purposes, which 
"fairly interpreted" would give it the righl to store water in reser- 
voirs it might thereafter construct. The courl says, "There are two 
sufficient replies to this contention. First, il was not within the juris- 
diction of the court in the proceedings leading up to the decree to 
make an absolute and unconditional decree of priority for a reservoir 
not then begun or constructed, and in the second place the decree 
itself does not purport to do so." but expressly excludes appliances 
not then in existence. In such cases as this it would seem unjust that 
a late ditch which had provided itself with the means of supplying its 
deficient early rights should, after the enjoyment of that means for a 
number of years, be subject to an old priority seeking to enlarge its 
diversion of water from the stream by means of storage. 
I.OWKR LATHAM DITCH COMPANY /'. LOUDON IRRIGATING CANAL COM- 
PANY ET AL. 
[Pacific Reporter 60, p. 629.] 
This suit was to test the relative rights of priority in two districts 
dependent on each other: Whether ditches in district No. 4. from the 
Big Thompson River, were or should be subject to the rights of prior 
appropriation below on the Platte River in district Xo. 2. 
The users on the Big Thompson obtained an injunction restraining 
the water commissioner from complying with the order of his superior, 
the superintendent, to close out ditches on the Big Thompson in order 
to supply such priorities on the Platte River as were earlier than those 
on the Big Thompson. The water commissioner notified the plaintiffs 
of the action and forwarded to them his notifications, etc., expecting 
them to defend their rights. They, however, allowed the case to go 
by default, but subsequently brought the present action to compel a 
recognition of their older rights. 
The defendants pleaded that while the plaintiffs were not parties to 
the injunction suit, nevertheless they had notice, and so were bound by 
the decree. Also that for a number of years the ditches on the Big- 
Thompson had used the water now asked for by the ditches on the 
Platte, who, with a knowledge of this, had nevertheless allowed the 
practice to continue without protest, permitting improvements to be 
made in district No. -i under the belief that there was water in suffi- 
cient quantity and not subject to the priorities below, and though in 
need of the water to fill their priorities the ditches of district No. 2 
had allowed their rights to lapse. They set forth also that even should 
the water be turned out of the Big Thompson ditches to fill those of 
the Platte, it would do so slowly and after great loss in volume. 
The district court of Larimer County sustained these positions, which, 
