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Show 610 EXERCISE OF THE APPROPRIATIVE RIGHT contention that the act was unconstitutional, it was held that the Fort Lyon decision had disposed of the difficulty "by placing a construction upon the statute in question, which permits an exchange or loan of water under circumstances and conditions which do not injuriously affect the vested rights of other appropriators."84 (2) Idaho. The water rights statute authorizes the substitution of direct flow from a stream or tributary for stored or other waters discharged into it, provided rights of prior appropriators are properly protected and approval of the State administrative agency has been obtained. Where a clear case of benefit and noninjury is made, such an exchange may be and has been approved.85 But it is not sanctioned if the exchange would be detrimental to prior appropriators or would result in depriving them of a property right.86 The statute provides that "water may be turned into any ditch, natural channel or waterway from reservoirs or other sources of water supply, and such water may be substituted or exchanged for an equal amount of water diverted from the stream, creek or river into which such water flows, or any tributary thereof, * * *."87 [Emphasis supplied.] A novel attempt to invoke the rule, but without reference to any natural channel or stream, was frowned upon by the Idaho Supreme Court. The attempt was to acquire the right to turn appropriated water into the lowline canal of a mutual irrigation company, and to pump an equivalent quantity out of the company's main canal at a point on the system far higher than the point of discharge into the lowline. It was held that there was no statutory authorization for such utilization of the company's property without compensation, and that the right could not be acquired by condemning the use of a small part of the lowline for the purpose of turning creek water into it and a small part of the main canal for the purpose of taking out a like amount.88 (3) Montana. Long before the statute authorizing exchange of stored water for direct flow was enacted89 the Montana Supreme Court approved an exchange of appropriative rights for natural flow diverted from one stream into another stream-involving a conveyance of water rights by an unrecorded deed.90 "Bowman v. Virdin, 40 Colo. 247, 249-251, 90 Pac. 506 (1907). S5Reno v. Richards, 32 Idaho 1, 5, 178 Pac. 81 (1918); Board of Directors of Wilder Irr. Dist. v. Jorgensen, 64 Idaho 538, 546-550,136 Pac. (2d) 461 (1943). See also Keller v. Magic Water Co., 92 Idaho 276, 441 Pac. (2d) 725, 732-734 (1968). "Daniels v.Adair, 38 Idaho 130, 135-136, 220 Pac. 107 (1923). "Idaho Code Ann. § 42-105 (Supp. 1969). **Berg v. Twin Falls Canal Co., 36 Idaho 62, 64-66, 213 Pac. 694 (1922). "Whether appellants could condemn a right to use the whole system for the purpose contemplated is not before us, and need not be decided." "Mont. Rev. Codes Ann. § 89-806 (1964). ^Middle Creek Ditch Co. v. Henry, 15 Mont. 558, 560-565, 572, 39 Pac. 1054 (1895). There was no abandonment of water rights, despite the lack of formality in making the conveyance. See the discussion of this case at note 65 supra. |
