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Show PROPERTY CHARACTERISTICS 447 West.51 "All streams are dependent upon tributaries for a supply of water," said the Colorado Supreme Court late in the 19th century. If the prior appropriator had no claim on the water of tributaries, his water supply might be cut off by settlers above at any time-"a conclusion so manifestly unjust that it must be discarded."52 The logic of the foregoing comment, which was applied to the relationship between an appropriation made on a main stream and a subsequent appropriation on an upstream tributary, is readily apparent. Less simple, but equally equitable, is its application to a situation in which the first appropriation is made on a stream below the junction of a tributary, a second appropriation is made on the main stream above this tributary junction, and a third appropriation is made on the tributary. The principle involved is well stated in the syllabus of a Colorado case. It was also adopted several years later in Montana.53 If the result of the appropriation from the tributary is to require the prior appropriator to surrender the use of water for the benefit of senior appropriations below the point where such tributary joins the main stream, then such prior appropriator may require the junior appropriator from the tributary to first surrender the use of water, before such prior appropriator is required to surrender his use, and may maintain an action for that purpose. The Utah Supreme Court made the sweeping statement that an appropriator of water from the central channel of a stream is entitled to rely upon "all the sources which feed the main stream above his own diversion point, clear back to the farthest limits of the watershed."54 But coincident with this right, on his part, to insist as against the public that his water come to him, is the right of the public to insist that no more than his quantity come to him.55 51 Weaver v. Eureka Lake Co., 15 Cal. 271, 274 (1860); Baxter v. Gilbert, 125 Cal. 580, 582, 58 Pac. 129 (\%99); Malad Valley In. Co. v. Campbell, 2 Idaho 411,415, 18 Pac. 52 (1888); Josslyn v. Daly, 15 Idaho 137, 149, 96 Pac. 568 (1908);Beaverhead Canal Co. v. Dillon Elec. Light & Power Co., 34 Mont. 135,141, 85 Pac. 880 (1906); Strait v. Brown, 16 Nev. 317, 323-324 (1881); Tonkin v. Winzell, 27 Nev. 88, 96-97, 73 Pac. 593 (l903);Lowv.Schaffer, 24Oreg. 239,244, 33 Pac. 678 (1893);Moyerv. Preston, 6 Wyo. 308, 317-318, 44 Pac. 845 (1896); Ryan v. Tutty, 13 Wyo. 122,126-127,78 Pac. 661(1904). "Strickler v. Colorado Springs, 16 Colo. 61, 67, 26 Pac. 313 (1891). 53Platte Valley In. Co. v. Buckers In., Mill & Improvement Co., 25 Colo. 77, 53 Pac. 334 (1898); Helena v. Rogan, 26 Mont. 452, 469-470, 68 Pac. 798 (1902). See also Water Supply & Storage Co. v. Larimer & Weld Res. Co., 25 Colo. 87, 91-92, 53 Pac. 386 (1898). "Richlandslrr. Co. v. WestviewIn. Co., 96 Utah 403, 418, 80 Pac. (2d) 458 (1938). ssAdams v. Portage In., Res. & Power Co., 95 Utah 1, 13, 72 Pac. (2d) 648 (1937). |
