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Show 516 THE APPROPRIATIVE RIGHT appropriative right-a focal point in the establishment and exercise of the right. It is there that the water right attaches to the flow of the stream-the place at which the appropriator takes control of the quantity of water that he is entitled to divert. And it is to that point that he is entitled to have the stream flow without substantial interference or impairment of quality by those junior in right or without right. The place of diversion of an appropriator is also important from the standpoint of other appropriators of the flow of the same stream (see, in chapter 7, "Methods of Appropriating Water of Watercourses-Priority of Appropriation").393 It is so important in this respect that a change in point of diversion of an appropriative right may be made only if the rights of others are not thereby adversely affected and, in most jurisdictions, only by following a prescribed statutory procedure. (See, in chapter 9, "Change in Exercise of Water Right-Point of Diversion.") Under the administrative procedures for appropriating water, the proposed point of diversion is stated by the intending appropriator in his application. As approved or altered by the administrator in the permit, and as fixed by construction of the diversion works, this place becomes an essential part of the completed appropriative right.394 393 The decision in an early Nevada case was based on most unusual facts. An appropriator used alternative points of diversion, taking out all the water at one point at one time and all the water at another point at another time, as his convenience dictated. Inasmuch as the practice had been begun before an objecting party purchased lands lying on the stream between the two points of diversion, the supreme court saw no reason to deny the prior appropriator's right to continue the alternative uses. Hobart v. Wicks, 15 Nev. 418, 420-421 (1880). See S. Dak. Comp. Laws Ann. § 46-5-13 (1967), regarding overhead sprinkling diversions. 394 In Keller v. Magic Water Co., 92 Idaho 226, 441 Pac. (2d) 725, 732-734 (1968), the facts in the case were said to constitute merely an amendment of a permit to show the correct point of diversion rather than an authorized change in the point of diversion. The court also concluded that there was only one diversion even though the diversion works consisted of a dam and two pumping units separated by location and time of construction, with the natural channel constituting part of the transportation system. When the second pumping unit was completed, the appropriator's date of priority dated back to the initial date of application for all waters beneficially used. (The court refuted the contention that two separate and different points of diversion were being utilized, the second point being subsequent in time and thus subsequent in priority to others' rights.) The South Dakota water rights statute provides that each application and permit for irrigation by the overhead sprinkler method, or by the use of portable diversion pumping equipment, may authorize diversions from one or more points at a time from a reach of the stream or other water sources between two fixed points on the stream as described in the application and permit; provided, that the total quantity diverted from two or more permissible points at one time under the provisions of a water right shall not exceed the total withdrawal rate allowed by said water right per unit of time. S. Dak. Comp. Laws Ann. § 46-5-13 (1967). |