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Show MEANS OF DIVERSION 213 (1) According to an Arizona decision:123 An appropriator of water from a running stream is entitled to have it flow down the natural channel to his point of diversion undiminished in quantity and quality Or, if diverted from the natural channel by other appropriators for their convenience, to have it delivered to him at available points by other means provided by subsequent appropriators and at their expense. This seems to be a rule of general accomodation and utility and has been universally followed by the courts when applied to surface streams. (2) This rule was adhered to by the Utah Supreme Court in several cases. Salt Lake City as prior appropriator and others as juniors diverted water from Utah Lake and from its outlet, Jordan River. When the lake level fell below the level of the outlet, the city pumped water from the lake into the river. The Utah Supreme Court .held that the original appropriator from a stream or body of water also acquires the right to continue the use of the means of diversion which he installs; if the junior appropriators could pump water from the lake without interference with the city's prior rights, they should be permitted to do so; but if their pumping interfered or threatened to interfere with the senior diversion and a new one was required, the juniors must bear the expense of the change or make up the deficiency by providing an additional supply of water at their own expense.124 The principle of the foregoing decision was applied by the Utah Supreme Court, by reference to that decision, in a case in which it appeared that more than 90 percent of the water diverted from a stream was lost in a rocky channel through which it was conveyed to the place of use. The court held that if the ditch company, the junior appropriator, could save the quantity being lost, by substituting a better method of diverting and conveying the water to the place of use, it should be permitted to do so.125 It should be emphasized that if a substitute supply of water is provided by the junior appropriator, it must be returned into the stream or into the ditch of the prior appropriator, if that is done at a point where the prior appropriator can make full use of the water, and without any injury to him.126 123Pima Farms Co. v. Proctor, 30 Ariz. 96, 106-107, 245 Pac. 369 (1926). For administrative complications foreseen by the court, seeMaricopa County M. W. C. Dist. v. Southwest Cotton Co., 39 Ariz. 367, 370, 7 Pac. (2d) 254 (1932). 124Salt Lake City v. Gardner, 39 Utah 30, 45-48, 114 Pac. 147 (1911). 125Big Cottonwood Tanner Ditch Co. v. Shurtliff, 56 Utah 196, 204-205, 189 Pac. 587 (1919). 126 United States v. Caldwell, 64 Utah 490, 497-498, 231 Pac. 434 (1924). See Salt Lake City v. Salt Lake City Water & Elec. Power Co., 24 Utah 249, 266, 67 Pac. 672 (1902), 25 Utah 456, 71 Pac. 1069 (1903). See also Macricopa County M.W.C. Dist. v. Southwest Cotton Co., 39 Ariz. 367, 370, 7 Pac. (2d) 254 (1932); Reno v. Richards, 32 Idaho 1, 5, 178 Pac. 81 (1918). (Footnote continued.) |
