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Show METHODS OF APPROPRIATING WATER OF WATERCOURSES 399 Location of diversion works on watercourse.-From a strict legal standpoint, the point of location of the diversion works on the source of supply has nothing to do with priority of the right. The first appropriator who locates his point of diversion on a stream has the prior right to the use of the waters thereof, regardless of whether subsequent appropriators locate above him or below him on the same stream. And the same rule applies to all subsequent appropriators with respect to all others on the same stream.866 Without having any bearing on relative dates of acquisition of the right, priority number one may be located near the headwaters of the stream, or near its mouth, or at any point between these extremes. A physical advantage in being situated high up the stream is that late in the season the natural flow may be large enough to be diverted there, yet not enough to reach downstream appropriators in sufficient quantity to be useful to them if left alone. In that event, the law does not require the upstream junior appropriator to do such a vain thing as to release water that would simply be lost in the stream channel and hence be of no benefit to those downstream. On unpoliced streams in the pioneer days, junior appropriators upstream sometimes enforced their advantage of location by means of gunplay, which accounted for the saying that under such circumstances "a high-ority is better than a priority."867 With increasing water development and use, and administration of streams by officials empowered to make arrests, this type of open disregard of prior rights became impracticable. Current legislative declarations.-The constitutions and water administration statutes of several Western States variously express the theme-but usually with important exceptions discussed later in connection with restrictions and preferences-that "As between appropriators, the first in time is the first in right."868 M6McCall v. Porter, 42 Oreg. 49, 57, 70 Pac. 820 (1902), 71 Pac. 976 (1903); Beecher v. Cassia Creek In. Co., 66 Idaho 1, 9-10, 154 Pac. (2d) 507 (1944). Where appropriations are made at different points of diversion on a stream and by means of different ditches, the diversion made by each ditch is of necessity an independent appropriation: Spring Creek In. Co. v. Zollinger, 58 Utah 90, 98, 197 Pac. 737 (1921). Compare Keller v. Magic Water Co., 92 Idaho 226, 441 Pac. (2d) 725, 732-734 (1968) where collective diversion works constituted one diversion. See chapter 8, note 394. 867 In one of the upper Rocky Mountain valleys, it was said, the custom was to choose the ugliest man in the community and to arm him with the longest available rifle for protection of the upstream headgates against attacks by justly indignant irrigators downstream. 868 S. Dak. Code Comp. Laws Ann. § 46-5-7 (1967). See Ariz. Rev. Stat. Ann. § 45-141(A)(Supp. 1970); Colo. Const., art. XVI, § 6; Idaho Const., art. XV, § 3; Idaho Code Ann. § 42-106 (1948); Kans. Stat. Ann. § 82a-707(c) (1969); Mont. Rev. Codes Ann. § 89-807 (1964); Nebr. Const., art. XV, § 6; Nebr. Rev. Stat. § 46-204 (1968); N. Mex. Const., art. XVI, § 2; N. Mex. Stat. Ann. § 75-1-2 (1968); N. Dak. Cent. Code Ann. § 61-01-02 (Supp. 1969); Tex. Rev. Civ. Stat. Ann. art. 7472 (1954); Utah Code Ann. § 73-3-1 (1968); Wash. Rev. Code § 90.30.010 (Supp. 1961); Wyo. Const., art. VIII, §3. |