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Show ELEMENTS OF THE APPROPRIATIVE RIGHT 5 31 (2) Some exceptions regarding particular circumstances. A Federal court, in determining conflicting rights on an interstate stream flowing from Nevada into Idaho, refused to approve any prior right for a practice under which water was simply cast out over high lying sagebrush land for the purpose of increasing the growth of the native grasses found among the sagebrush. The grasses were scant and sparse and their growth was not largely promoted by the irrigation.467 The Utah Supreme Court refused to approve an appropriation of water for irrigation of unenclosed and unoccupied public domain of the United States for the sole purpose of propagating wild water fowl.468 "To our minds," said the court, "it is utterly inconceivable that a valid appropriation of water can be made under the laws of this state, when the beneficial use of which, after the appropriation is made, will belong equally to every human being who seeks to enjoy it." This general opinion, it will be noted, was expressed before provision for recreational facilities became an important part of large water project development in the West. It was held in Nevada that cutting of wild grass produced by the natural overflow of a stream would found no right of appropriation.469 In Colorado, on the other hand, an early statute, still extant, authorizes persons who have received the benefits of natural overflow from streams in irrigation of meadowland, in event of diminution of the streamflow, to construct ditches for such purpose with priorities as of the time of first use of the meadow.470 This statute, with pertinent judicial citations, is discussed in chapter 9 under "Diversion, Distribution, and Storage Works-Some Features of Waterworks." Domestic and Municipal Relationships Domestic-'The' fact that the water was used for culinary and domestic purposes by plaintiff, its agents and employees, was of itself sufficient to establish a beneficial use of the water."471 The question as to what constitutes domestic use of water in farming communities appears to have been considered more generally in decisions involving riparian rights than in questions concerning appropriations of water 467 Vineyard Land & Stock Co. v. Twin Falls Salmon River Land & Water Co., 245 Fed. 9, 12-13, 21, 22 (9th Cir. 1917). Although the court made a substantial allowance for uncultivated pasture land that produced good results, it stated with respect to the scant-return areas that: "The employment of water for this purpose can scarcely, in this day of agricultural progress in the arid states, be classed as a beneficial use." wLake Shore Duck Club v. Lake View Duck Club, 50 Utah 76, 80-81, 166 Pac. 309 (1917). 469 Walsh v. Wallace, 26 Nev. 299, 327-328, 67 Pac. 914 (1902); Anderson Land & Stock Co. v.McConnell, 188 Fed. 818, 822 (C. C. D. Nev. 1910). 470 Colo. Rev. Stat. Ann. § 148-3-14 (1963), first enacted, Laws 1879, p. 106. 471 Silver Peak Mines v. Valcalda, 79 Fed. 886, 890 (C. C. D. Nev. 1897). |