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Show WASTE, SEEPAGE, AND RETURN WATERS 587 between appropriators or by prescription."118 Referring to this statement in a later case, Crane v. Stevinson, the court said:119 The quoted statement implies recognition of the possibility of appropriation of foreign waters. * * * [T] here should remain no present doubt that the so-called foreign waters are now subject to appropriation under the laws of this State. The fact that, where such waters have been brought into a stream as the result of abandonment by another appropriator, there is no way to compel him to continue such abandonment, necessarily affects the value of the subsequent appropriation right, but does not affect the existence of the right, subject to the limitation caused by the nature of the water supply in question. In a later case, the supreme court held it to be well settled in California that so-called foreign waters are subject to appropriation.120 The right of the appropriator, however, extends only to such portions of the foreign flow as have been abandoned by the producer and thus made available for uses other than his own; and "these rights are always subject to the contingency that the supply may be intermittent or may be terminated entirely at the will of the producer."121 The importer may sell or otherwise dispose of his imported waters at any time before abandoning the same.122 In a Montana case decided in 1933, water had been appropriated from Gold Creek, taken across a divide to Pioneer Creek for placer mining purposes, whence it ran down Pioneer Creek to its junction with Pikes Peak Creek and thence to the lower~portion of Gold Creek from which originally diverted. Appropriators of water for agricultural purposes built a ditch leading from Pioneer Creek to Gold Creek at a point above the confluence of Pikes Peak Creek and Gold Creek. This was done after others had appropriated water from Pikes Peak Creek and had made use of these released waters. It was held that this released water was not subject to recapture by the connecting ditch as a part of the natural flow of Gold Creek; that the prior appropriators of the flow of Pikes Peak Creek were entitled not only to such flow but .to the released water asweU.123 The Montana Supreme Court has rendered several other decisions pertaining to return flow from foreign waters. One dealt with an appropriator who diverted waters from one watershed to another for the purpose of placer mining and who thereupon released the waters so that they flowed into a 118£". Clemens Horst Co. v. New Blue Point Min. Co., 177 Cal. 631, 641, 171 Pac. 417 (1918). 119 Crane v. Stevinson, 5 Cal. (2d) 387, 394-395, 54 Pac. (2d) 1100 (1936). i20Bloss v. Rahilly, 16 Cal. (2d) 70, 74-76,104 Pac. (2d) 1049 (1940). 121 Stevens v. Oakdale In. Dist., 13 Cal. (2d) 343, 348, 90 Pac. (2d) 58 (1939). This case is also discussed at notes 116-117 supra. *"Haun v. DeVaurs, 97 Cal. App. (2d) 841, 844, 218 Pac. (2d) 996 (1950). ^ Wilson v. Thrasher, 95 Mont. 267, 271-272, 26 Pac. (2d) 373 (1933). |
