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Show PROPERTY CHARACTERISTICS 453 conflicts arose between claimants of water for mining, who contended that only appropriations for this purpose were valid, and claimants for other purposes. The California Supreme Court first held that the State policy toward settlers extended to all pursuits with no partiality except in the single case in which the rights of the agriculturalist, when gold was discovered on the land he occupied, were made as the result of a statute to yield to those of the miner.80 Several years later, the court held that a threatened diversion of water, for mining purposes, from an irrigation reservoir was a violation of a property right acquired by virtue of a prior appropriation.81 The Arizona Supreme Court held that although the Territorial laws recognized the right to appropriate public stream water for mining as well as for agriculture, no superior right is accorded the miner. The only superiority of right arises by prior appropriation. This does not mean that an agriculturist may captiously complain of the reasonable use of water by the miner upstream so long as no substantial damage is done. It does mean that such stream pollution or burdening the stream channel with debris as to render the stream substantially unavailable to the agriculturist is actionable.82 The United States Supreme Court agreed. The Court stated that "The Arizona statute places a water user for mining purposes upon no higher plane than a user for irrigation." And without force, it was declared, was the suggestion that the right to use water for mining and reduction purposes cannot be exercised without polluting the streams with waste material, and that the lower user therefore cannot complain of the necessary consequences of the legal right conferred by the statute. Sufficiency of water for necessary uses of the first appropriator includes quality as well as quantity. Extent of the effect of diminution of quality is a factual question.83 The Idaho constitution states several preferences in use of appropriated water,84 one of which is that "in any organized mining district those using the water for mining purposes or milling purposes connected with mining, shall have preference over those using the same for manufacturing or agricultural purposes," such preferred usage to be subject to the laws governing exercise of the power of eminent domain.85 There is nothing in this or any other provision of the constitution that authorizes miners or others "to fill up the natural 80 Tartar v. Spring Creek Water & Min. Co., 5 Cal. 395, 397-399 (1855). 81Rupley v. Welch, 23 Cal. 452, 455-457 (1863). It was held, however, that the question of injury to growing crops involved a right vested in the miner by the State Possessory Act of 1852 and subject to regulation under the Indemnity Act of 1855. "Arizona Copper Co. v. Gillespie, 12 Ariz. 190, 202-203, 100 Pac. 465 (1909), affirmed, 230 U.S. 46 (1913). 83Arizona Copper Co. v. Gillespie, 230 U. S. 46, 56-57 (1913). 84In chapter 7, see "Methods of Appropriating Water of Watercourses-Restrictions and Preferences in Appropriation of Water-Preferences in Water Appropriation." 85 Idaho Const., art. XV, § 3. |