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Show 518 THE APPROPRIATI VE RIGHT features of exercise of the appropriative right, that the prior rights of others be not adversely affected by diverting the water outside the original drainage area. The practice of taking water out of the watershed in which it origi- nates has been followed from the earliest years of hydraulic mining in the Sierra foothills of California, wherein numerous streams rising in the mountains tend to parallel each other in their descent into the vast central valley. This right of the appropriator to divert, from one water- shed to another, water in excess of the quantity necessary to satisfy the requirements of prior rights, riparian and appropriative, was spe- cifically recognized by the California courts.395 The acknowledged right to take water out of the watershed, however, was always qualified by the limitation that no injury be thereby inflicted upon prior or superior rights.396 See also the discussion below regarding "Some Statutory Authori- zations and Restrictions-California." In an early decision, the Colorado Supreme Court concluded that it was lawful to carry appropriated water out of the watershed in which it originates, across an intervening divide, into another watershed for irrigation of lands in the latter valley, provided it could be done without detriment to holders of existing priorities in the original watershed.397 Other courts held to the same effect.398 In some instances, the Montana Supreme Court used caution in discussing the right to take waters out of the watershed. For example, in one case in 395Miller v. Bay Cities Water Co., 157 Cal. 256, 280-281, 107 Pac. 115 (1910); San Joaquin & Kings River Canal & In. Co. v. Fresno Flume & In. Co., 158 Cal. 626, 627-630,112 Pac. 182 (1910); Gallatin v. Coming In. Co., 163 Cal. 405, 413, 126 Pac. 864 (1912). 396Southern California Investment Co. v. Wilshire, 144 Cal. 68, 72-74, 77 Pac. 767 (1904); Huffner v. Sawday, 153 Cal. 86, 90, 94, 94 Pac. 424 (1908); Scott v. Fruit Growers' Supply Co., 202 CaL 47, 51-55, 258 Pac. 1095 (1927). 397 "In the absence of legislation to the contrary, we think that the right to water acquired by priority of appropriation is not in any way dependent upon the locus of its application to the beneficial use designed." Coffin v. Left Hand Ditch Co., 6 Colo. 443, 449-451 (1882). See also Oppenlander v. Left Hand Ditch Co., 18 Colo. 142, 144, 31 Pac. 854 (1892). 398Sounders v. Robison, 14 Idaho 770, 95 Pac. 1057 (1908), syllabus by the court. Commencing in 1864, miners conveyed waters of Gold Creek across a divide into the watershed of Pioneer Creek: Mannix & Wilson v. Thrasher, 95 Mont. 267, 268, 26 Pac. (2d) 373 (1933). Immaterial whether the lands to which the waters are applied are within or without the watershed of the stream from which the waters are taken: Mettler v. Ames Realty Co., 61 Mont. 152, 159, 201 Pac. 702 (1921). In various decrees of water rights, appropriators were authorized to take the water out of the watershed for use on outside lands: Thrasher v. Mannix & Wilson, 95 Mont. 273, 277-278, 26 Pac. (2d) 370 (1933). |