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Show QUANTITY AND QUALITY OF THE WATER 207 The use of water by the holder of a riparian right ordinarily is subject to the reasonable use of the stream on the part of other riparians, although in some States an upper riparian may be allowed to take all he reasonably needs for domestic purposes as against a lower riparian, even if this exhausts the flow. As against other riparian owners, the riparian right does not relate to any specific quantity of water, because in its nature it is a tenancy in common. As against appropriators, different considerations are involved. These and related matters are dicussed in chapter 10.95 Questions regarding the laws applicable to changes or proposed changes in the exercise of water rights, particularly changes in points of diversion and purpose or place of use,96 and plans of rotation in diversion and use of water among appropriators or riparians, or both, which may affect the quantity of water, have been discussed in earlier chapters.97 Quality of the Water As a general principle, the appropriator is entitled to the flow of water in a stream to his diversion works in such state of natural purity as to substantially fulfill the purposes for which his appropriation was made. Various modifica- tions and qualifications of this principle have been adopted by western courts, as discussed in chapter S.m During the early mining years it was recognized in California that some deterioration in quality of the water might not impair the usefulness of an appropriation, that question to be determined in view of the purpose to which the water was being applied. There were indeed divergences in the judicial views as expressed in the earliest opinions,99 but the California Supreme Court 95 See, in chapter 10, "The Riparian Right-Property Characteristics-Right to the Flow of Water" and "Measure of the Riparian Right." 96 Some typical high court decisions include Handy Ditch Co. v. Louden Irrigating Canal Co., 27 Colo. 515, 62 Pac. 847 (1900); Vogel v. Minnesota Canal & Res. Co., 47 Colo. 534, 107 Pac. 1108 (1910); Colorado Springs v. Yust, 126 Colo. 289, 249 Pac. (2d) 151 (1952); Cline v. McDowell, 132 Colo. 37, 284 Pac. (2d) 1056 (1955); East Bench Irr. Co. v. Deseret Irr. Co., 2 Utah (2d) 170, 271 Pac. (2d) 449 (1954); Salt Lake City v. Boundary Springs Water Users Ass'n, 2 Utah (2d) 141, 270 Pac. (2d) 453 (1954); Haberman v. Sander, 166 Wash. 453, 7 Pac. (2d) 563 (1932). 97 See, in chapter 9, regarding the appropriative right, "Change in Exercise of Water Right" and "Rotation in Use of Water" and, in chapter 10, "The Riparian Right-Exercise of the Right-Rotation in Use of Water Among Riparians." Changes in means of diversion are discussed under "Means of Diversion,"m/rfi. 98 See "Property Characteristics-Right of Property-Right to the Flow of Water-Quality of the water." "See Bear River & Auburn Water & Min. Co. v. New YorkMin. Co., 8 Cal. 327, 333-336 (1857); Mokelumne Hill Canal & Min. Co. v. Woodbury, 10 Cal. 185, 186-187 (1858); Butte Canal & Ditch Co. v. Vaughn, 11 Cal. 143, 153-154 (1858); Pilot Rock Creek Canal Co. v. Chapman, 11 Cal. 161,162 (1858). See also Esmond v. Chew, 15 Cal. 137, 143 (1860). |
