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Show 572 THE APPROPRIATIVE RIGHT do not themselves constitute an appropriation for which a permit is required by this part. Quantity and Quality of the Water, and Right to the Flow of Tributaries The prior appropriator's right of protection against material or substantial diminution of quantity or deterioration in quality of water for the purposes for which he appropriated it, and extension of such protection to the flow of tributaries as well as that of the stream on which he has his diversion, have been discussed at some length earlier in this chapter under "Property Characteristics- Right of Property." Increase in Amount of Appropriation, When Lawful As will be brought out below in discussing rights of junior appropriators, no senior appropriation can be actually enlarged above its original content at the expense of junior appropriators. However, enlargements of the senior right may be lawfully made before any junior rights attach,656 provided there is excess water in the source of supply available for further appropriation. Furthermore, as discussed in chapter 7 (see "Methods of Appropriating Water of Watercourses-Completion of Appropriation-Gradual or Progressive Development"), the right to the use of water for irrigation is not necessarily confined to the quantity actually applied during the first year or two-or even within a series of years-subject to two invariable conditions: (1) the enlarged use of the water over that accomplished in the early stages must have been within the original intent of the appropriator, and claimed at the time of initiating the appropriation and (2) the intending appropriator proceeded with reasonable diligence to apply the water to the use intended. Provided these conditions are met, the priority of the right on completion relates back to the date on which it was initiated; hence, any subsequent appropriator diverts water subject to such prior claim. Under the western administrative statutes governing appropriation of water, these pragmatic principles are applied in the making of applications to appropriate water and the subsequent granting to the applicant of permits and licenses or certificates of appropriation. Noninjurious Changes in Exercise of the Senior Right As noted below,657 the senior appropriator is not entitled to make any changes in the conditions of his appropriation of the streamflow to the material injury of junior appropriators. But this restriction on the senior applies only to activities that infringe the junior right. Subsequent appropriators cannot successfully complain of changes that do not substantially injure them.658 6S6Healy v. Woodruff, 97 CaL 464, 466-467, 32 Pac. 528 (1893). 657 Under "Rights of Junior Appropriator-Maintenance of Stream Conditions." '"Farmers Res. & In. Co. v. Lafayette, 93 Colo. 173, 177, 24 Pac. (2d) 756 (1933); Thrasher v. Mannix & Wilson, 95 Mont. 273, 277-278, 26 Pac. (2d) 370 (1933). |
