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Show DIVERSION, DISTRIBUTION, AND STORAGE WORKS 593 the water in place, with no question about diverting it from the spring or stream channel.12 The constitutionality of this stockwatering act was sustained, under attack, by the Nevada Supreme Court, and it was referred to, with approval, by the Federal District Court for Nevada.13 A Colorado case decided in 1960 involved a claim of right to a long exercised use of small quantities of water in potholes or ponds in a streambed, augmented by installation of an artificial sump, some water being collected in troughs for watering stock and some dipped or drawn in buckets-and at times pumped-for "household and other domestic uses." In affirming the judgment of the trial court, the supreme court held that "an appropriation of water to beneficial uses," as that phrase is understood in the water law of Colorado, had been made, and that the prior appropriator was entitled to continued maintenance of conditions as they existed at the time the appropriation was made. The general principle was declared that:14 It is not necessary in every case for an appropriator of water to construct ditches or artificial ways through which the water might be taken from the stream in order that a valid appropriation be made. The only indispensable requirements are that the appropriator intends to use the waters for a beneficial purpose and actually applies them to that use. The Utah Supreme Court stated one aspect of the principal question in a case before it as "the right of users on grazing range to water their livestock at springs or streams flowing in natural channels, without interference, without making a statutory appropriation." Rights of two kinds to the use of such waters were recognized: (a) The right of a prior appropriator of water, in the exercise of which "there must be a diversion from the natural channel or an interference with the natural free flow, for storage, effected by the work, labor, or art of man." (b) While water is flowing naturally in a stream channel or other source of supply, and its ownership therefor of necessity in the public, "everyone may drink or dip therefrom or water his animals therein, subject to the limitations above noted as to the rights of the appropriator as fixed by law to his quantity and quality."15 12Nev. Rev. Stat. § § 533.485-.510 (Supp. 1967). 13/« re Calvo, 50 Nev. 125, 131-141, 253 Pac. 671 (1927). "Because of natural conditions particularly, an arid mountainous region covering the major portion of the state's areas of more than 100,000 square miles, the state has recognized and provided for the protection of stockmen who have been first to make use of springs and small water channels to enable them to graze their live stock in adjacent regions which, with the possible exception of mining, is not adaptable to any other use." Adams-McGill Co. v. Hendrix, 22 Fed. Supp. 789, 791 (D. Nev. 1938). "Genoa v. Westfall, 141 Colo. 533, 349 Pac. (2d) 370, 378 (1960). 15Adams v. Portage In., Res. & Power Co., 95 Utah 1, 12-14, 72 Pac. (2d) 648 (1937). The right of plaintiffs to take water from streams for camp purposes and to water their sheep in the creek was held to be a lawful right, recognized by the constitution and the 450-486 O - 72 - 40 |
