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Show 448 THE APPROPRIATIVE RIGHT The commonly recognized right of protection to the appropriator on the main stream extends only to waters of a tributary that reach his point of diversion at the time he has need of the water.56 As stated by a Federal court: "An appropriator from a main channel can complain of a diversion from a 'tributary' only if and when such tributary would, if not interferred with, make a valuable contribution to the main stream."57 Thus, the question as to whether one stream or other source of water supply is a tributary of another becomes, for this purpose, a question of fact.58 The burden of proof in controversies between prior appropriators on a main stream and junior appropriators of water of an upstream tributary is discussed in the last part of this chapter under "Relative Rights of Senior and Junior Appropriators-Reciprocal Rights and Obligations of Appropriators." Quality of the water. - (1) As a general principle, the appropriator is entitled to the flow of water in the stream to his diversion works in such state of natural purity as to substantially fulfill the purposes for which his appropria- tion was made. If not protected in this particular, the usefulness of his water right may be depreciated or even destroyed. The necessity for the rule is self-evident. In its first reported water rights decision, the Utah Supreme Court held that an appropriator was entitled to protection by the court against a subsequent material deterioration in quality of the stream water by an ore crusher.59 Three-fourths of a century later, the same court said that: "The owner of a water right has a vested right to the quality as well as the quantity which he has beneficially used."60 (2) Development of the rule in California. As might be anticipated, the question of stream pollution arose early in California as a result of the predominant emphasis at that time on use of water for mining purposes. The courts came to recognize that if these mountain stream waters were to be put to maximum beneficial use, preservation of their original pristine quality was neither practical nor necessary for many useful purposes. That is, some deterioration in quality of the water might not impair the usefulness of a particular downstream appropriation, that question to be determined as one of fact in consideration of the purpose to which the water was being or was to be applied.61 "Leonard v. Shatzer, 11 Mont. 422, 426-427, 28 Pac. 457 (1892). 57 United States v. Haga, 276 Fed. 41, 43 (D. Idaho 1921). **Loyning v. Rankin, 118 Mont. 235, 246, 165 Pac. (2d) 1006 (1946). In Anderson v. Spear-Morgan Livestock Co., 107 Mont. 18, 29-30, 79 Pac. (2d) 667 (1938), it was held that where the testimony of all witnesses showed that only in time of flood did water from a certain creek flow into another creek, such evidence did not justify the court in finding that the first creek was a tributary of the second one. 59 Crane v. Winsor, 2 Utah 248, 253 (1878). 60Salt Lake City v. Boundary Springs Water Users Assn., 2 Utah (2d) 141, 144, 270 Pac. (2d) 453 (1954). 61 Hill v. Smith, 27 Cal. 476,483 (1865). |