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Show RELATIVE RIGHTS OF SENIOR AND JUNIOR APPROPRIATORS 581 area to another, the resulting use made by downstream appropriators could not justly be deemed beneficial.702 Whether a definite quantity of water passing a given point on a river would, if not diverted or interrupted in its course, reach the headgate of a prior appropriator's canal "in a usable quantity creates a very complicated question of fact." Under a State administrative system governing the distribution of water according to priorities, such as that of Nebraska, it is therefore the duty of the State administrators to determine from all available means whether or not a usable quantity can be delivered at the downstream headgate. This finding of fact must be determined in the first instance by the officers charged with administration of the particular stream. The finding of fact thus made, which is an administrative function, is final unless unreasonable or arbitrarily made.703 In State ex rel. Cary v. Cochran, the Nebraska Supreme Court held that after determining that a given quantity of water passing a certain point on the river would not, even if uninterrupted, reach the prior appropriator's headgate in usable quantities, the administrative officers of the State may lawfully permit upstream junior appropriators to divert it for irrigation purposes. The court pointed out that this often results in the receipt by junior appropriators of a head of water when a prior appropriator downstream is getting none. "Such situations are not therefore conclusive evidence of unlawful diversions." Difficulties of enforcement of prior rights on a long, losing stream channel.-These were stated graphically in the opinion of the Colorado Supreme Court in a case involving transfer of early priorities from downstream ditches to the canal of the latest priority some 25 to 30 miles upstream. In times of scarcity of water, the loss in the river was so great that 60 to 70 second-feet must be released at this junior upstream canal in order to deliver 18 second-feet to the early rights downstream, even when augmented by natural accretions en route. An excerpt from the opinion follows:704 The evidence shows the owners exhausted every legitimate means within their power to get this water down the river, past protestants' headgates for use in their own ditches, and most of them became impoverished by the loss of their crops, and expenses of litigation in these attempts. At their request the county officials placed numerous patrolmen on the river, but they were unable to keep the gates above, closed down. In some instances the deputies were thrown into the river, in others they were fired upon, the gates were raised, and the water taken by ditches that were not entitled to it. Finally 702 Warner Valley Stock Co. v. Lynch, 215 Oreg. 523, 543-545, 336 Pac. (2d) 884 (1959). The factual situation in this case was most complicated. 703State ex rel. Cary v. Cochran, 138 Nebr. 163, 173-174, 292 N.W. 239 (1940); Robinson v. Dawson County In. Co., 142 Nebr. 811, 816-817, 8 N.W. (2d) 179 (1943). 704Ironstone Ditch Co. v.Ashenfelter, 57 Colo. 31, 36-45, 140 Pac. 177 (1914). |
