| OCR Text |
Show METHODS OF APPROPRIATING WATER OF WATERCOURSES 397 It is the duty of a watermaster in charge of distribution of water of an adjudicated stream-whether appointed by court or by the State-to distribute the water according to the rights of those entitled to receive it. Thus, in the watermaster's routine of opening, closing, and adjusting diversion headgates, his guide is a schedule of all appropriative rights in good standing that attach to the stream system, arranged in the chronological order of their respective dates of priority. Each right relates to a specific flow of water, usually in cubic feet per second. As the natural streamflow diminishes with the advancing season, headgates are lowered or closed in the reverse order of priorities, beginning with the latest in time and working backward in time, always reserving sufficient water to fill completely the requirements of the earlier rights. Should there be an increase in the natural flow, the gates are opened or raised to give the junior appropriators the benefit of the available supply. The Utah legislature expressed its understanding of this relationship of priorities, and of what is incumbent upon the watermaster to effectuate it, thus: "Appropriators shall have priority among themselves according to the dates of their respective appropriations, so that each appropriator shall be entitled to receive his whole supply before any subsequent appropriator shall have any right; * * *."856 The date of priority of an appropriation, then, is of outstanding and often of vital importance. In 1891, the Colorado Supreme Court observed that: "The authorities seem to concur in the conclusion that the priority to the use of water is a property right."857 Two years later this court made a statement concerning the value of a priority, which has been quoted on several occasions.858 Property rights in water consist not alone in the amount of the appropriation, but, also, in the priority of the appropriation. It often happens that the chief value of an appropriation consists in its priority over other appropriations from the same natural stream. Hence, to deprive a person of his priority is to deprive him of a most valuable property right. * * * The Priority Principle in Operation Priorities of successive appropriations on one stream. -It is possible for an intending appropriator to obtain a valid right to all the water that flows in a stream if he has need for it. Such an appropriation of the entire streamflow was 856 Utah Code Ann. § 73-3-21 (1968). Following the semicolon is a proviso regarding preferences in time of scarcity, noted later. 857Strickler v. Colorado Springs, 16 Colo. 61, 70, 26 Pac. 313 (1891). *s*Nichols v. Mclntosh, 19 Colo. 22, 27, 34 Pac. 278 (1893); Whitmore v. Murray City, 107 Utah 445, 452-453, 154 Pac. (2d) 748 (1944). "It necessarily follows that the owner of a priority right to the use of water is the owner of property and he cannot be deprived thereof without due process of law." Vonberg v. Farmers In. Dist., 132 Nebr. 12, 20, 270 N. W. 835 (1937). |
