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Show NATURAL CHANNELS AND RESERVOIRS 611 (4) New Mexico. The statutory provision not only authorizes delivery of water into a stream or watercourse in exchange for water diverted therefrom above or below the point of delivery, but also includes "any ditch" in the authorization.91 To the extent that this authorizes the taking of a property right without compensation, in failing to provide for compensation to the owner of a ditch in a case in which a nonowner attempts to take advantage of the statute, this was held unconstitutional.92 The court specifically confined its disapproval to cases in which the question concerns the use of senior ditches, constructed and maintained at cost to the owners, without compensation. It has no application to cases in which the use of natural watercourses is involved, concerning which the court saw no objection. (5) Wyoming. Referring to the statute that authorizes appropriators to arrange among themselves for the delivery of either storage or direct flow water from another source,93 the Wyoming Supreme Court quoted the first section and stressed that: "It will be observed that this exchange must be made 'by agreement.' "94 Other waters at the surface. -Decisions have been rendered from time to time with respect to rights to exchange salvaged, developed, and return waters for natural streamflow. These matters are discussed later in chapter 18. Summary of State Statutory Provisions The several State statutory provisions relating to use of natural channels for conveyance of water, commingling, and exchange or substitution of water are summarized in the following paragraphs: Arizona. -Natural channels may be used to convey water, but without diminishing the flow already appropriated. If necessary, the water super- intendent divides the water (§ 45-173). Procedure is provided for the use of a streambed to convey stored water from a reservoir to the consumer under supervision of the water division superintendent (§ 45-174).95 California. -Nothing in the chapter relating to maintenance of flow in streams is to prevent the use or enlargement of any natural channel for (1) municipal purposes, or for use in connection with any artificial irrigation, drainage, or flood control system that does not lower the quantity of appropriated water (§ 7043), or (2) for conveyance of appropriated water where the channel is designated as part or all of the means of conveyance (§ 7044). Appropriated water may be turned into another stream channel, 91N. Mex. Stat. Ann. § 75-5-24 (1968). "Miller v. Hagerman Irr. Co., 20 N. Mex. 604, 612-614, 151 Pac. 763 (1915). The State can compel such portage of water in a private ditch only when just compensation is made. 93Wyo. Stat. Ann. § § 41-5 to -8 (1957). 94In re Owl Creek Irr. Dist., 71 Wyo. 70; 258 Pac. (2d) 220 (1953). "Ariz. Rev. Stat. Ann. § § 45-173 and -174 (1956). |