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Show METHODS OF APPROPRIATING WATER OF WATERCOURSES 355 right to impound any water whatever in such reservoirs during the time that such water is required in ditches for direct irrigation or for the reservoirs holding senior rights."647 This principle in one form or another has been declared repeatedly by the legislature since the early enactments of administra- tive appropriation law. In Colorado prior to 1935, there was a serious question-and considerable contention-as to the relative preferences of direct flow and storage rights on the same stream. In People ex rel Park Reservoir Company v. Hinderlider, a case finally decided in 1936, this question came to a head.648 An opinion of the supreme court originally handed down April 15, 1935, sustained a judgment of the trial court, the result of which would have been to deny a reservoir with senior priority the right to store water at a time when ditches with direct-flow priorities junior in time to the reservoir priority needed the water for direct irrigation. Three days later, the legislature amended the statute providing that persons might store "any of the unappropriated waters of the State not thereafter needed for immediate use for domestic or irrigating purposes * * *." This was done by adding a proviso which, as codified, reads: " * * * that after April 18, 1935, the appropriation of water for any reservoirs hereafter constructed, when decreed, shall be superior to an appropriation of water for direct application claiming a date of priority subsequent in time to that of such reservoirs."649 The entire cause in the Park Reservoir case was represented to the supreme court in September 1935. In February 1936, the supreme court withdrew its earlier opinion and reversed the trial court decision without referring to this statute, which in any event was not controlling in this litigation. The effect of the reversal was to deny preference to either appropriation group other than on a basis of priority. Whether direct flow or storage, therefore, the individual priority now governs. In a recent case, the Montana Supreme Court said, "The primary right to the use of water in a stream is that of the appropriator of the natural flow, not the storage claimant."650 But in an earlier case, the court said "the laws of Montana that apply to the acquisition of running water equally apply to the 647Nebr. Rev. Stat. § 46-241(2) (1968). 648People ex rel Park Res. Co. v. Hinderlider, 98 Colo. 505, 507-511, 57 Pac. (2d) 894 (1936). Plaintiff had a decree for storage with priority as of October 1, 1888. When spring floods had subsided, the stream did not furnish sufficient water for direct irrigation from ditches diverting from it. Priorities of some direct-use ditches were senior to that of plaintiff and some were junior. 649Colo. Laws 1935, ch. 147, Rev. Stat. Ann. § 148-5-1 (1963). The Colorado Adjudication Act of 1943 distinguished "direct water rights" and "storage water rights," § § 148-9-1(6) and (7), but was repealed, Laws 1969, ch. 373, § 20. This is discussed in the preceding subtopic. 6S0Gwynn v. City of Philipsbwg, _ Mont. _, 478 Pac. (2d) 855, 859 (1970), citing Whitcomb v. Helena Water Works Co., 151 Mont. 443, 444 Pac. (2d) 301 (1968). |
