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Show RELATIVE RIGHTS OF SENIOR AND JUNIOR APPROPRIATORS 579 appropriators located above or below him on the stream.690 This, of course, is a cardinal principle of the doctrine of prior appropriation.691 Likewise, the rule that each junior appropriator is entitled to divert water only at such times as all prior appropriators are being supplied under their appropriations, under conditions as they existed when the appropriation was made, applies regardless of the relative locations of the parties on the stream.692 Reciprocally, each prior appropriator is limited to the receipt at his point of diversion of water in the quantity and of the quality concerning which he made his appropriation; and regardless of diversions made upstream by junior appropriatofs, the prior appropriator has no grounds for complaint if he receives the quantity to which he is entitled whenever he has occasion to use it.693 Effect of Losses of Water in Stream Channel Appropriator not penalized because of natural upstream losses. -Natural losses of water, owing to "seepage, evaporation, and channel absorption or other physical conditions beyond the control of the appropriators,"694 that may occur in large quantities on long stream channels raise questions as to their effect on the right of the appropriator whose diversion is located below a heavily losing section of the stream channel. The general rule is that notwithstanding heavy natural losses above him, a prior appropriator is entitled to have the streamflow reach his headgate in quantity necessary to satisfy his appropriative right. In the abstract, said a Federal court, more people might be benefitted by allowing the entire flow to be diverted by junior appropriators upstream, inasmuch as the flow through a sandy and gravelly stretch of 10 miles or more may result in substantial waste, "but equity does not consist in taking the property of a few for the benefit of the many, even though the general average of benefits would be greater."695 Upstream appropriator entitled to flow that would be lost- Under ordinary circumstances it is elementary that "where there are two water rights upon a stream, one above the other, and where the water becomes diminished during a certain period of the year, so that it will not flow down and reach the lower user, the upper user may use all of it for the time it will not reach the lower one."696 Such a factual situation was featured in an interstate case involving a stream flowing from Oregon into Washington. It was found that if certain dams in 690Hill v. King, 8 Cal. 336, 337-338 (1857). 69iProctor v. Jennings, 6 Nev. 83, 87 (1870); Kaler v. Campbell, 13 Oreg. 596, 597-598, 11 Pac. 301 (1886); Union Mill & Min. Co. v. Dangberg, 81 Fed. 73, 106 (C. C. D. Nev. 1897). 692Beecher v. Cassia Creek In. Co., 66 Idaho 1, 9-10, 154 Pac. (2d) 507 (1944). 693Kelly v. Granite Bi-Metallic Consolidated Min. Co., 41 Mont. 1, 10-12, 108 Pac. 785 (1910);Featherman v.Hennessy, 42 Mont. 535, 542,113. Pac. 751 (1911). 694Albion-Idaho Land Co. v.Naflrr. Co., 97 Fed. (2d) 439,444 (10th Cir. 1938). 695Morris v. Bean, 146 Fed. 423,435-436 (D. Mont. 1906). 696Fenstermaker v.Jorgensen, 53 Utah 325, 333,178 Pac. 760 (1919). |
