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Show PROPERTY CHARACTERISTICS 449 Some divergences in judicial views were expressed in the earliest decisions.62 The California Supreme Court, however, settled upon the principle that the appropriator is entitled to protection against acts that materially deteriorate the quality of the water for the uses to which he wishes to apply it.63 (3) Relation to purposes of use of the injured appropriator. In the formulation of the general rule in California, it was recognized that in the use of waters of a stream by appropriators up and down the channel, the carrying of some impurity from one water use location to another is inevitable-that preservation of the water in its original state of purity is of course a desirable attainment but, in a developing economy, quite impracticable.64 In a case decided in 1919 by a district court of appeal, this pragmatic conclusion was expressed as follows:65 A prior locator cannot insist that the stream above him shall not be used by subsequent locators or appropriators for mining purposes, and that the water shall flow to his claim in a state of absolute purity. While the subsequent locator will not be permitted so to conduct his operations as to unreasonably interfere with the fair enjoyment of the stream by the prior locator, or to destroy or substantially injure the latter's superior rights as a prior locator, nevertheless, the law recognizes the necessity for some deterioration, which, within reasonable limits, is damnum absque injuria. Any other rule might involve an absolute prohibition of the use of all the water of a stream above a prior locator in order to preserve the quality of a small portion taken therefrom.* * * The right of the prior appropriator to have the water at his headgate "of such quality as will meet his needs as protected by his water right" was "See Bear River & Auburn Water & Min. Co. v.New YorkMin. Co., 8 Cal. 327, 333-336 (1857); Mokelumne Hill Canal & Min. Co. v. Woodbury, 10 Cal. 185,186-187 (1858); Butte Canal & Ditch Co. v. Vaughn, 11 Cal. 143, 153-154 (1858); Pilot Rock Creek Canal Co. v. Chapman, 11 Cal. 161, 162 (1858). See also Esmond v. Chew, 15 Cal. 137, 143 (1860). 63Phoenix Water Co. v. Fletcher, 23 Cal. 481, 487 (1863). See Dripps v. Allison's Mines Co., 45 Cal. App. 95, 99, 187 Pac. 448 (1919); Wright v.Best, 19 Cal. (2d) 368, 378, 121 Pac. (2d) 702 (1942); Joerger v. Pacific Gas & Elec. Co., 207 Cal. 8, 25-26, 276 Pac. 1017 (1929). Compare the facts in Antioch v. Williams In. Dist., 188 Cal. 451, 457458,465, 205 Pac. 688 (1922). 64 In 1942, the California Supreme Court mistakenly said it to be an established rule that an appropriator of stream water, as against upper owners with inferior rights of user, "is entitled to have the water at his point of diversion preserved in its natural state of purity." Wright v.Best, 19 Cal. (2d) 368, 378,121 Pac. (2d) 702 (1942). However, the court then went on to qualify this flat statement by adding that "any use which corrupts the water so as to essentially impair its usefulness for the purposes to which he originally devoted it, is an invasion of his rights." [Emphasis supplied.] 6SDripps v.Allison'sMines Co., 45 Cal. App. 95, 99,187 Pac. 448 (1919). 450-486 O - 72 - 31 |
