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Show 570 OTHER WATERS AT THE SURFACE The original holder of a water right who has never released title to the corpus of the waters diverted in the exercise of his right may refuse to allow such waters to pass beyond his land for the use of the waste water claimant.26 In 1853, in the first controversy decided by the California Supreme Court over rights to the use of water, it was held that a party cannot reclaim waters that he has lost.27 This is a different matter from the right to recapture excess waters before they have been abandoned or lost from the control of the original user. The relinquishment from control of specific particles of water is not an abandonment of a water right; it is an abandonment of those specific portions of the water. But when they are discharged without intent to recapture them, property in such particles of abandoned water ceases.28 "We think it is now too late in this state to say that waste waters cannot be discharged into natural water courses."29 An important limitation upon this right is that there be discharged only such reasonable quantities of excess water as can be borne away in the channels without injury to the lands which they cross.30 Colorado.-A statute originally enacted in 1889 reads as follows:31 All ditches constructed for the purpose of utilizing the waste, seepage or spring waters of the state, shall be governed by the same laws relating to priority of right as those ditches constructed for the purpose of utilizing the water of running streams; provided, that the person upon whose lands the seepage or spring waters first arise, shall have the prior right to such waters if capable of being used upon his lands.32 The courts of Colorado have held uniformly that the proviso at the end of 593-595, 138 Pac. 751 (1913). The right of the upper owner to cut off the supply may perhaps be defeated if it is done wantonly in order to harm the user, without any legitimate purpose of use of the water. See Stevens v. Oakdale Irr. Dist., 13 Cal. (2d) 343, 352, 90 Pac. (2d) 58 (1939), and compare Correa v.Frietas, 42 Cal. 339, 344-345 (1871). It may also be defeated if the circumstances are such as to create an estoppel. See Davis v. Martin, supra. "Davis v. Martin, 157 Cal. 657, 661-662, 108 Pac. 866 (1910). &Eddy v. Simpson, 3 Cal. 249, 252 (1853). See Kelly v. Natoma Water Co., 6 Cal. 105, 106-108(1856). Stevens v. Oakdale Irr. Dist., 13 Cal. (2d) 343, 350, 90 Pac. (2d) 58 (1939). i9Cheesman v. Odermott, 113 Cal. App. (2d) 26, 29, 247 Pac. (2d) 594 (1952). ^Provident Irr. Dist. v. Cecil, 126 Cal. App. (2d) 13, 14,16, 271 Pac. (2d) 157, 158-159 (1954); Phillips v. Burke, 133 Cal. App. (2d) 700, 703, 284 Pac. (2d) 809, 812 (1955). Anything in excess of reasonable and noninjurious discharge of irrigation water through natural drains upon lower lands is wrongful; it may ripen into an easement if continued under all conditions necessary to a prescriptive right. Fell v. M. & T., Inc., 73 Cal. App. (2d) 692, 695, 166 Pac. (2d) 642 (1946). To accomplish this, a showing of damage to the lower owner must be made. 3lColo. Laws 1889, § 1, p. 215, Rev. Stat. Ann. § 148-2-2 (1963). 32 With respect to the application of this statute to spring waters, see "Spring Waters-State Situations-Colorado," infra. |
