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Show 604 EXERCISE OF THE APPROPRIATIVE RIGHT No abandonment.-\n mingling one's waters with those flowing in a stream for the purpose of diverting an equivalent quantity below, there is obviously no intention of abandoning the water; certainly abandonment does not result from such temporary release of the waters from the appropriator's control with the avowed intent to recapture.53 While approving this rule for situations in which there is no intent to abandon, but on the contrary a specific purpose to effectuate a planned recapture, the Nevada Supreme Court in an early decision correctly pointed out that it did not apply to the circumstances of the case at bar, where "the water was discharged into the stream as a matter of convenience, and without intention of recapturing it."54 Limitations on exercise. -Exercise of the practice of commingling is subject to important limitations declared from time to time in the statutes or in decisions of the courts. (The statutory limitations are stated later under "Summary of State Statutory Provisions.") In the first place, the appropriator has no claim to any part of the natural flow by virtue of exercising the practice; hence, he is not entitled to take from the stream any larger quantity of water than he turned into it.55 There must be no deprivation of the quantities of water to which prior appropriators are entitled.56 Nor must there be an injurious impairment of the quality of the water for the purposes for which the prior user appropriated it, such as for domestic uses.57 The quality requirement is most important in that water that it had pumped from wells: El Paso County W. I. Dist. No. 1 v. El Paso, 133 Fed. Supp. 894, 926-927 (W. D. Tex. 1955). In State ex rel. Reynolds v. Luna In. Co., 80 N. Mex. 515, 458 Pac. (2d) 590, 591 (1969), the New Mexico Supreme Court held that waters released from a dam in Arizona, conveyed over a largely dry river bed, and intercepted by diversion dams for irrigation use in New Mexico, became public waters of New Mexico within the meaning of New Mex. Stat. Ann. § 75-1-1 (1968) and hence were subject to adjudication in New Mexico. The court added that "When surface waters are released from storage into a 'dry' river bed they necessarily merge and interchange with the ground waters of the stream system." However, the court apparently did not conclude anything regarding the nature of the rights in such waters other than to merely refute Luna Irrigation Company's contention that, since such waters were its own private waters, it should be excluded from an action begun by the State Engineer to adjudicate water rights in the stream in New Mexico. S3Butte Canal & Ditch Co. v. Vaughn, 11 Cal.143, 151-152, 154 (1858); Los Angeles v. Glendale, 23 Cal. (2d) 68, 76, 142 Pac. (2d) 289 (1943); Herriman In. Co. v. Keel, 25 Utah 96, 115, 69 Pac. 719 (1902). 5ASchulz v. Sweeny, 19 Nev. 359, 361-362, 11 Pac. 253 (1886). ssPaige v. Rocky Ford Canal & In. Co., 83 Cal. 84, 94-96, 21 Pac. 1102 (lSS9);Meine v. Ferris, 126 Mont. 210, 217, 247 Pac. (2d) 195 (1952);Miller v. Wheeler, 54 Wash. 429, 438, 103 Pac. 641 (1909). "Miller v. Wheeler, 54 Wash. 429, 438,103 Pac. 641 (1909). slMissoula Pub. Serv. Co. v. Bitter Root In. Dist, 80 Mont. 64, 68-69, 257 Pac. 1038 (1927). The fact that the water deposited in the stream never caused the flow to reach the high-water mark did not excuse the junior appropriator from the consequences of infringing the prior appropriator's right by impairing the quality of the water. |