OCR Text |
Show 210 PROTECTION OF WATER RIGHTS IN WATERCOURSES chapter 10 under "The Riparian Right-Exercise of the Riparian Right- Diversion of Water-Means of diversion of water." Restrictions on Senior Appropriator (1) The earliest case that has come to the attention of the author in this field featured the obligation of a senior appropriator to meet the situation caused by a junior diversion upstream. The California Supreme Court refused the request of the earlier appropriator for an injunction against a junior upstream appropriator whose diversion, by reason of its location on the body of slack water above the senior appropriator's dam, required the latter to use flashboards on its dam in periods of high flow as well as low flow in order to obtain the prior appropriated supply. In view of the requirement of public policy for careful economy of the limited water supply, the senior was required to use all reasonable diligence in handling it; and if with such diligence and the use of ordinary means of diversion he could obtain all the water that he was entitled to, he could not complain of the trouble and expense involved. The court stated that116 While the right of the prior appropriator is carefully protected, he is compelled to exercise it with due regard to the rights of others and the paramount interests of the public. The quantity of his lawful appropriation cannot be diminished, but he must return the surplus to the stream without unnecessary waste, and he must use reasonable diligence and reasonably efficient appliances in making his diversion in order that the surplus may not be rendered unavailable to those who are entitled to it. Upon the same principle it must be held that a prior appropriator whose means of diversion become insufficient for his purposes, by reason of their inherent defects, when the surplus is diverted above him, must take the usual and responsible measures to perfect such means. In other words, the extra inconvenience and minor expense of resorting to the same means that the senior was accustomed to employ in periods of scarcity to fill its canal was not considered by the court as constituting a material infringement of the senior's right. (2) An apQropriator of water from the Snake River in Idaho, whose diversion consisted of an arrangement of waterwheels and who claimed an appropriation of the current for that purpose, was denied recovery of damages for such raising of the water level of the stream by means of a later Works-Some Features of Waterworks-Diversion and Distribution Works" and "Change in Exercise of Water Right-Point of Diversion." The general subject of the rights of senior and junior appropriators is discussed in chapter 8 under "Relative Rights of Senior and Junior Appropriators." 116Natoma Water & Mining Co. v. Hancock, 101 Cal. 42, 50-52, 31 Pac. 112 (1892), 35 Pac. 334 (1894). |