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Show ELEMENTS OF THE APPROPRIATIVE RIGHT 545 rnade.S39 So-called "water spreading" is an important feature of water development in parts of southern and central California. (2) The Texas water rights statute authorizes the appropriation of storm and flood waters for the purpose of recharging fresh water-bearing aquifers in a specified portion of a named underground reservoir, when expert testimony shows that an unreasonable loss of water will not occur and that the water can be later withdrawn for application to a beneficial use. It is specifically provided that on being discharged into the ground, such water "shall thereupon lose its character and classification and be considered percolating ground water." The appropriations for such purpose are subject to the priority of appropriations set forth in the Statute.s40 One of the purposes for which "underground water conservation districts" may be created is recharging the ground water supply of ground water reservoirs or subdivisions.541 Navigation.-(I) The Oregon water rights statute provides that in determin- ing whether a proposed use of water would be detrimental to the public interest, due regard must be given by the administrative agency to conserving the highest use of water for all purposes including navigation.542 (2) In the list of preferences in the allotment and appropriation of water in Texas, navigation is in sixth place, ahead of recreation and pleasure and other unspecified beneficial uses.543 Uses of Water Held to be not Beneficial California. -Certain uses of water were held in early cases, as well as subsequently, to be not beneficial when considered as bases of claimed appropriative rights. For example, diverting water for the purpose of drainage only was held in one of the earliest cases to be not appropriating it to a beneficial purpose; that is, one who so diverts water gains no priority over others who in good faith appropriate the water for mining or other useful purposes.544 A bare claim for no object other than speculation is invalid as the foundation of an appropriative right.545 And in 1935, a use of water for the sole purpose of exterminating gophers and squirrels during the winter period in an area of great need of water was held to be not such a beneficial use as will support an appropriative right for that purpose.546 539CaL Water Code § 1242 (West 1956). 540 Tex. Rev. Civ. Stat. Ann. art. 7470 (Supp. 1970). 541 Tex. Rev. Civ. Stat. Ann. art. 7880-3c(B) (1954). 542Oreg. Rev. Stat. § § 537.110(3)(a) (Supp. 1969) and 543.225(3)(a) (Supp. 1965). S43Tex. Rev. Civ. Stat. Ann. art. 7471 (Supp. 1970). s^Maeris v. Bicknell, 7 Cal. 261, 262-263 (1857). But use of a ditch for drainage as well as conveyance of water for a recognized beneficial use under an appropriative right does not invalidate the right: Marius v. Bicknell, 10 Cal. 217, 221-222 (1858). 545 Weaver v. Eureka Lake Co., 15 Cal. 271, 275 (1860). 5A6Tulare In. Dist. v. Lindsay-Strathmore In. Dist., 3 Cal. (2d) 489, 567-568, 45 Pac. (2d) 972 (1935). See also Joslin v. MarinMunicipal Water Dist., 67 Cal. (2d) 132, 140-141, 429 Pac. (2d) 889, 60 Cal. Rptr. 377 (1967), discussed in chapter 6, note 239. 450-486 O - 72 - 37 |