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Show SALVAGED AND DEVELOPED WATERS 567 words, he is not injured and hence has no logical claim upon the surplus salvaged and developed water made available by the efforts of others. In its decision in a water adjudication proceeding in 1932, the Colorado Supreme Court summed up the foregoing restrictions as follows:15 Where a person by his own efforts has increased the flow of water in a natural stream, he is entitled to the use of the water to the extent of the increase. But to entitle him to such use, he must prove that the water thus added to the stream was produced and contributed by him, and that, if not interfered with but left to flow in accordance with natural laws, it would not have reached the stream; and he must prove this by clear and satisfactory evidence. * * * * * * * It is not enough to show that the flow of water to the river was hastened by the construction of the tunnel, but it must be shown that the flow of the river was augmented.16 With respect to the importation of foreign water from another area, a Colorado statute provides:17 Whenever an appropriator has heretofore, or shall hereafter lawfully introduce foreign water into a stream system from an unconnected stream system, such appropriator may make a succession of uses of such water by exchange or otherwise to the extent that its volume can be distinguished from the volume of the streams into which it is introduced. Nothing herein shall be construed to impair or diminish any water right which has become vested. lsLeadvMe Mine Dev. Co. v. Anderson, 91 Colo. 536, 537-540, 17 Pac. (2d) 303 (1932). For some other decisions pertinent to the general topic, see Reno v. Richards, 32 Idaho 1, 6, 13, 178 Pac. 81 (1918), cited inBasingerv. Taylor, 36 Idaho 591, 211 Pac. 1085 (1922); Hill & Gauchay v. Green, 47 Idaho 157, 158-160, 274 Pac. 110 (1928); title to such water rights cannot be litigated in a mandamus proceeding, Nampa & Meridian In. Dist. v. Welsh, 52 Idaho 279, 284, 15 Pac. (2d) 617 (1932); nor in a contempt proceeding, State ex rel. Zosel v. District Ct., 56 Mont. 578, 581, 185 Pac. 1112 (1919); Woodward v. Perkins, 116 Mont. 46, 51-53, 55, 147 Pac. (2d) 1016 (1944); Perkins v. Kramer, 121 Mont. 595, 597-600,198 Pac. (2d) 475 (1948); Perkins v. Kramer, 148 Mont. 355, 361-365, 423 Pac. (2d) 587 (1966);Smith v. Duff, 39 Mont. 382, 391, 102 Pac. 984 (1909); Cardelliv. Comstock Tunnel Co., 26 Nev. 284, 293-295, 66 Pac. 950 (1901); Harrell v. Vahlsing, Inc., 248 S.W. (2d) 762, 786 (Tex. Civ. App. 1952, error refused n.r.e.); United States v. Haga, 276 Fed. 41, 43-44 (D. Idaho 1921). 16 This language was approvingly quoted in Pikes Peak Golf Club, Inc. v. Kuiper, 169 Colo. 309, 455 Pac. (2d) 882, 884 (1969), in which the court held that where prior to the time that the golf club salvaged water from swampy ground the salvaged water had been consumed in subirrigation of native hay crops and had never reached the natural stream leaving the lower boundary of the swamp, the golf course was entitled to retain the salvaged water for its golf course and was not required to release it into the stream. I7Colo. Rev. Stat. Ann. § 148-2-6 (1963), as reenacted and amended by Laws, 1969, ch. 373, § 21, Rev. Stat. Ann. § 148-2-6 (Supp. 1969). |
