"Know
all men by these presents, that the Arkansas River, Land
Reservoir, and Canal Company (a corporation existing under
the laws of the state of Colorado), of the first part, and
John Hess, of the county of Bent and state of Colorado, of
the second part, for and in consideration of the sum of
fifteen hundred dollars paid by said second party, the
receipt whereof is hereby acknowledged by said first party
and in consideration of the mutual covenants and agreements
in this deed contained, to be performed and kept by both of
said parties, and hereafter specifically mentioned, the said
first party hereby grants, bargains, sells, and conveys to
the said second party, his heirs and assigns, one and
one-half water right; that is to say, the right to the use of
water flowing through the canal of said
first party, each water right representing one and forty-four
one-hundredths (1.44) cubic feet of water flowing under a
weir per second, subject, however, to the following
reservations and conditions, to which said party of the
second part expressly agrees: First. Said company to furnish
the said water to the second party or assigns continuously
during the irrigating season, except as hereinafter provided
and at no other time, unless with consent of company thereto
in writing. Second. Said water shall be used for irrigating
and domestic purposes on
the following described tract of land, to wit, one hundred
and twenty acres in the southwest quarter of section 18,
township 22 south, of range 46, within Bent county, Colorado.
Third. Said company expressly reserves to itself the right to
distribute the water from its said canal in accordance with
such rights and priorities as are or may hereafter be
established or decreed, and this deed is received by the
party of the second part subject to such priorities. Fourth.
The said second party, his heirs or assigns, shall not permit
said water, or any portion thereof, to be furnished as
aforesaid, to run to waste; but, as soon as a sufficient
quantity shall have been used for the purposes herein
allowed, the said second party, his heirs or assigns, shall,
in such a manner as the first party may prescribe, notify the
first party that the said water may be shut off, and shall
also give the first party timely notice when the same shall
be again needed for the purposes aforesaid; but in no case
shall the amount of said water taken or received at any time
by said second party, his heirs or assigns, exceed the
quantity first herein referred to. Fifth. The said company
shall deliver said water at such point or points along the
line of said canal or ditch, or from any of its reservoirs,
or either or all, as it may determine to be the most
practicable, and the manner of withdrawing and regulating the
supply of said water from said company's canal, ditch, or
reservoir shall be prescribed by said company, and shall at
all times be under its control, as determined and directed by the board of directors of said
company. The head gates, flumes, weirs, or other arrangements
through which the water hereby sold shall be drawn off from
the said company's canal, ditch, or reservoirs shall be
made and placed in position by said company, but at the cost
of the said second party, who shall be liable also for the
expense of keeping the same in good repair and condition, and
the said company may collect and enforce the payment of all
sums expended for said purposes in the same manner as
prescribed for collecting and enforcing assessments. ***
Tenth. It is further agreed that the irrigating season shall
commence April 1st, and continue to November first, of each
and every year, and that thereafter water shall be conveyed
for domestic purposes whenever reasonably practicable,
subject to the right of said first party to repair, enlarge,
or extend said canal.
"It
is hereby further stipulated and agreed that when said first
party shall have sold, and shall have outstanding and in
force, a number of water rights equal to the estimated
capacity of the company's ditch to furnish water, and
two-fifths of the contract price for the same shall have been
paid, then the holder or holders of such contracts for water
rights shall have a voice and vote in the management of the
affairs of said company's canal, proportional to the
interest which said second party's contract bears to the
entire number of contracts outstanding; and when two-thirds
of all such outstanding rights have been fully paid for,
according to the terms of the several contracts entered into,
then the title to said canal shall pass to the owners and
holders of contract for such water rights at the time, on the
plan following: Within sixty days thereafter, at such time as
may be fixed by the board of directors of first party, said
board of directors of said first party shall hold a meeting
for the purpose, and thereat designate five persons, who are
at that time owners of water rights under said ditch, to be
the incorporators of a new company, to be incorporated under
the laws of the state of Colorado, and which said five
persons shall within thirty days thereafter
subscribe to articles incorporating a stock company under a
new name, and said five persons shall be the directors for
the first year; and, immediately following the signing and
filing of articles of incorporation, the directors thereof
shall organize, make by-laws, procure a seal, and otherwise
proceed as the law directs; and at said time they shall
issue, of the capital stock of the new company, full paid, to
the owners of said water rights, such a proportion of the
whole of said stock as the water right each owner thereof has
will bear to the whole amount of water rights sold as
aforesaid, and second party hereby agrees to accept and
receive the stock of said new company as aforesaid; and when
said water rights shall have been fully paid as aforesaid,
and when said five persons shall have been named as herein
provided by first party, and said five persons notified in
writing of that fact, and that said water rights have been
fully paid, as aforesaid, then the obligations of this
company, said first party, in respect to said ditch, and the
keeping the same in repair, or supplying water through the
same, or any other ditch, canal, or reservoir connected
therewith, shall cease, and the said new company, and the
stockholders thereof, shall thereafter be the owners and in
control of the said ditch, and the water of the same. Now,
therefore, said second party does hereby agree with said
first party that this deed, and the right of said second
party to vote and have a voice in the management of the
company, is subject to the limitation that said second party
shall not, by reason of anything in this deed contained, or
by reason of any relation he may bear to this company,
arising out of said water right, be entitled to claim,
demand, or receive any part or portion of any moneys arising
out of the sale of any stock of said company, should the said
company find it necessary to increase its capital stock; and
the said second party is to be allowed a voice and vote only
as relates to the said company's affairs at the time of
executing this deed, and necessary to securing to said second
party the fullest enjoyment of said second party's water
right. It is further agreed that, if said
five persons provided to be appointed to incorporate
a new company should decline or fail to incorporate said new
company as herein contemplated, then the first party may,
within thirty days, appoint others for said purpose, and so
continue to appoint persons until said company is
incorporated as herein provided. And it is further agreed
that the said first party will deliver said ditch to the
water-right owners as aforesaid, and at the time and manner
aforesaid, free of any debts against the same."
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