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Show 636 EXERCISE OF THE APPROPRIATIVE RIGHT The physical interrelationship of upstream and downstream appropriative diversions is such that injury in change of place of use is voiced in most ordinary situations by downstream appropriators against those above. Thus, a change in point of return to the stream of upstream nonconsumptive uses-or the excess from consumptive uses-may deprive the lower diversion of water on which it has been depending, and in that case it is an actionable injury.219 In a number of cases, the downstream user complains of the loss of return flow on which he has been depending when an upstream use is changed to a new locality. This violates the "continuance of conditions" philosophy and, if the original use was not excessive, the change may be enjoined.220 It appears, however, that not in all situations does the downstream appropriator have an unqualified right to the continuance of return flow conditions upstream upon which he claims dependence. Under the circumstances of two cases, the Idaho Supreme Court denied the claim because the return flow from upper lands was so excessive as to impute wastefulness rather than beneficial use to the exercise of the original appropriative right. Thus, in one case, it was held that the upstream owner could not be required to continue to irrigate the original land nor to waste 75 percent of the decreed water for the benefit of the lower appropriator. And in the other case, "It is axiomatic that no appropriator can compel any other appropriator to continue the waste of water whereby the former may benefit." In other words, the rule that a junior appropriator has the right to a continuation of stream conditions as they were when he made his appropriation will not be so construed as to compel the senior to waste his water by use on the original land.221 Statutory authorization to a State administrator to approve applications to change place of use of water appropriated from streams does not clothe him change in the place of use was designed to provide a method for making such changes which would eliminate friction and a multiplicity of lawsuits among water users. But it neither added to nor detracted from a property right which already existed." 219Mannix & Wilson v. Thrasher, 95 Mont. 267, 271, 26 Pac. (2d) 373 (1933); Gassert v. Noyes, 18 Mont. 216, 223,44 Pac. 959 (1896); Last Chance Min. Co. v. Bunker Hill & S. Min. & Concentrating Co., 49 Fed. 430 (C.C.D. Idaho 1892). 220Hall v. Blackman, 22 Idaho 556, 558, 126 Pac. 1047 (1912). A Federal court approved a decree restricting the use of certain water to certain lands, by reason of the fact that approximately two-thirds of the water found its way back to the stream by percolation, so that junior appropriators downstream were afforded the opportunity of making use of that quantity: Vineyard Land & Stock Co. v. Twin Falls Salmon River Land & Water Co., 245 Fed. 9, 28 (9th Cir. 1917). But a change in place of use from one tributary valley to another is not injurious to a junior appropriator on the main stream below the junction of the two forks because he obtains the benefit of all return flow from water used in the valley of either tributary: Sounders v. Robison, 14 Idaho 770, 774, 95 Pac. 1057 (1908). 221Colthorp v. Mountain Home In. Dist., 66 Idaho 173, 179-182, 157 Pac. (2d) 1005 (1945); Application of Boyer, 73 Idaho 152, 162-163, 248 Pac. (2d) 540 (1952). See also Jones v. Big Lost River Irrig. Dist., 93 Idaho 227, 459 Pac. (2d) 1009, 1012 (1969). |