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Show 582 OTHER WATERS AT THE SURFACE Utah.-The return flow from irrigation is an important factor in making up the water supply for downstream users on many of Utah's river systems.87 In a relatively early decision, the Utah Supreme Court announced that an upstream junior appropriator was not entitled to intercept seepage and runoff water from irrigation which, if not intercepted, would return to the stream from which it was diverted and supply the rights of the prior appropriator further downstream.88 And in a later case the court said, "The lower users have acquired a vested right to use all the unconsumed waters which would come down to them under th&jj^e^said^Mi^i^&^isdsxJyy the. upper_usgrs ajuHhe conditions existing at thg_time jhey made their appropriations." 89 However, where the original appropriator retains possession and control of the waste and seepage water from irrigation of his lands, he is entitled to reuse these waters for his own benefit and need not return them to the channel from which they were diverted. (See "Waste and Seepage Waters-Several State Situations-Utah," above.) In defining what is meant by retaining possession and control of these waters, the Utah court has apparently limited this to an element of physical control where the water is retained on the owner's property,90 or if returned in a gully adjacent to the land, then to the waters which return above the user's lowest dam.91 By contrast with the upstream development on the South Platte in Colorado, noted above, on the Provo River in Utah, downstream development occurred first, and return flow from junior upstream diversions not only satisfied the requirements of earlier downstream appropriators but actually benefitted them by prolonging the seasonal supply. Idaho.-If a downstream user loses return flow on which he has been depending when an upstream use is changed to a new locality, the change may be enjoined if the original use was not excessive.92 But the Idaho Supreme Court has denied a downstream user's claim of a right to the continuance of the upstream return flow where the return flow was so excessive as to impute wastefulness rather than beneficial use of the upstream appropriative right. Thus, in one case it was held that the upstream owner could not be required to continue to irrigate the original land nor to waste 75 percent of the decreed water for the benefit of the lower appropriator.93 And in another case, the "East Bench In. Co. v. Deseret In. Co., 2 Utah (2d) 170,175, 271 Pac. (2d) 449 (1954). "Rasmussen v. Moroni In. Co., 56 Utah 140, 156,189 Pac. 572 (1920). "East Bench In. Co. v. Deseret In. Co., 2 Utah (2d) 170, 177, 271 Pac. (2d) 449 (1954). See also, Provo Bench Canal & In. Co. v. Lake, 5 Utah (2d) 53, 57, 296 Pac. (2d) 723 (1956). wSmithfield West Bench In. Co. v. Union Cent. Life Ins. Co., 113 Utah 356, 195 Pac. (2d) 249 (1948). 91McNaughton v. Eaton, 121 Utah 394, 404, 242 Pac. (2d) 570 (1952). See also Lehilrr. Co. v. Jones, 115 Utah 136,145, 202 Pac. (2d) 892 (1949). WHallv.Blackman, 22 Idaho 556, 558, 126 Pac. 1047 (1912). 93Colthorp v. Mountain Home In. Dist., 66 Idaho 173, 179-182, 157 Pac. (2d) 1005 (1945), discussed at note 39 supra. |