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Show RELATIVE RIGHTS OF SENIOR AND JUNIOR APPROPRIATORS 577 used. Therefore, he has a vested right, as against his senior, to insist that such conditions be not changed to the detriment of his own right.682 The foregoing rule-that a junior appropriator is entitled to maintenance of the stream conditions as of the time he makes his appropriation-is followed generally in the West. However, after recognizing this general rule, the Idaho Supreme Court felt concerned that in some situations this might not afford adequate protection to the junior. So "we now declare and determine the rule, generally applicable, to be that junior appropriators have a vested right to a continuance of the conditions existing on the stream at and subsequent to the time they made their appropriations, and that no proposed change in place of use or diversion will be permitted when it will injuriously affect such established rights." [Emphasis supplied.]683 And as noted above in discussing rights of the senior appropriator, the Colorado Supreme Court, likewise acknowledging the general principle, took occasion to point out that it applies only to interference by man with natural conditions on the stream in existence at the time of the appropriation.684 (2) In order to establish this well-recognized rule, an actual impairment or irreparable injury to the legal rights of the junior appropriator must be demonstrated by evidential facts and not by potentialities.685 (3) The general rule is frequently invoked, and applied, with respect to proposed changes in point of diversion, place of use, and manner of use that threaten material injury to junior rights.686 Safeguards against injurious changes are accorded to senior appropriators as well. (See "Change in Exercise of Water Right" in chapter 9.) (4) Some references respecting the right of an appropriator vis-a-vis upstream erosion-control practices appear earlier under "Rights of Senior Appropriator-Maintenance of Stream Conditions." The relationship would apply regardless of the appropriator's priority. Substitution of Water The right of a junior appropriator to substitute water of equivalent quantity and quality has been recognized. Specifically, he has been allowed to divert 6*2East Bench In. Co. v. Deseret In. Co., 2 Utah (2d) 170, 177-178, 271 Pac. (2d) 449 (1954); Oliver v. Skinner & Lodge, 190 Oreg. 423, 441, 226 Pac. (2d) 507 (1951); Dannenbrink v. Burger, 23 Cal. App. 587, 595, 138 Pac. 751 (1913); Faden v. Hubbell, 93 Colo. 358, 369, 2S Pac. (2d) 247 (1933); Union Mill & Min. Co. v. Dangberg, 81 Fed. 73, 106 (C. C. D. Nev. 1897); Smith v. Duff, 39 Mont. 382, 389-390, 102 Pac. 984 (1909). 683Crockett v. Jones, 47 Idaho 497, 503-504, 277 Pac. 550 (1929). 6MMendenhall v. Lake Meredith Res. Co., 127 Colo. 444, 446-447, 257 Pac. (2d) 414 (1953). M5Del Norte In. Dist. v. Santa Maria Res. Co., 108 Colo. 1, 7, 113 Pac. (2d) 676 (1941). Compare Ireland v. Henrylyn In. Dist., 113 Colo. 555, 558-559, 160 Pac. (2d) 364 (1945), in which on the facts the general rule was held not applicable. 686Farmers Highline Canal & Res. Co. v. Golden, 129 Colo. 575, 579, 272 Pac. (2d) 629 (1954). 450-486 O - 72 - 39 |