| OCR Text |
Show IDAHO 269 e. PREFERENCE AMONG USES The Idaho constitution provides that, as between appropriators, priority of appropriation shall give the better right, but in times of scarcity, domestic use shall have preference over all other uses and agricultural uses shall have preference over manufacturing uses. But in any mining district, the use of water for mining, or for mill- ing purposes connected with mining, shall have preference over manufacturing and agricultural purpose. However, these prefer- ences, if exercised, require that the owner of the divested right be fully compensated.83 3.3 Changes, Sales, and Transfers a. CHANGES ALLOWED A water user may change the point of diversion and place of use of a water right, if other rights are not injured by the change.84 If the right sought to be changed is represented by shares of stock in a corporation or is managed by an irrigation district, then the change cannot be made without the consent of the corporation or irrigation district, except for transfers to other lands in the same system.85 b. PROCEDURAL STEPS Under the present Idaho statutes, a user must make application to the director in order to perfect a change. The requirements for notice, protest, and hearing are the same as those which apply to applications to appropriate.88 C. CRITERIA FOR APPROVAL The director shall approve the change in whole, or in part, or subject to appropriate conditions, provided no other water rights are injured and the change does not constitute an enlargement of the original right.87 Any injury threatened by the change must be actual and substantial.88 Prospective injury if other changes should also be granted is not a valid reason for rejecting the first change application filed.89 Initially, the burden is upon the one requesting the change to show that he is not interf erring with rights of other water users. 90 A sale of water right and transfer by the purchaser to other lands does not cause a forfeiture, of course, and is not an abandonment of the water right91 simply because the water is no longer used in the same place as it was under the original appropria- tion. 88 Idaho const, art. XV, sec. 3: and Montpelier Mill Co. v. Montpelier. 19 Idaho 212, 113 Pac. 741 (1911). 84 Idaho code, sec. 42-108; Zezi v. Light foot, 57 Idaho 707, 68 P. 2d 50 (1937). 86 Idaho code, sec. 42-108. 86 Idaho code, sec. 42-222. 87 Idaho code, sec. 42-222. **Beecher v. Cassia Creek Irr. Co., 66 Idaho 1, 154 P. 2d 507 (1944). »Application of Boyer, 73 Idaho 152, 248 P. 2d 540 (1952). 90 Federal Land Bank of Spokane v. Union Central Life Insurance Co.. 54 Idaho 161, 29 P. 2d 1009 (1934). «/n re Johnson, 50 Idaho 573, 300 Pac. 492 (1931). |
