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Show RELATIVE RIGHTS OF SENIOR AND JUNIOR APPROPRIATORS 573 Reasonable Means of Diversion The matter of protection of a prior appropriator in a reasonable means of diversion of water is discussed in chapter 13. Rights of Junior Appropriator Appropriation of Unappropriated Water The rule that subsequent appropriators may acquire rights in the surplus water over that to which prior rights attach was recognized in the pioneer mining days.659 Thus, if the person who first appropriates water from a stream appropriates only a part of the supply, "another person may appropriate a part or the whole of the residue; and when appropriated by him his right thereto is as perfect, and entitled to the same protection, as that of the first appropriator to the portion appropriated by him."660 Although, to appropriate surplus water, one does not need the consent of earlier appropriators, he must respect all prior rights.661 This rule, obviously essential in agricultural development in the West, became well settled in the law of appropriative water rights.662 Protection Against Enlargement of Senior Right Those who acquire prior rights on a stream "can in no way change or extend their use of the water" to the prejudice of subsequent appropriators.663 As pointed out earlier in discussing "Increase in Amount of Appropriation, When Lawful" under "Rights of Senior Appropriator," this inhibition applies to actual enlargements above the specific terms of the prior appropriation, not to gradual development within the original intent of the appropriator and pursued with due diligence. Such an actual enlargement above the specific terms of prior appropriation constitutes a new appropriation. 659Ortnwn v. Dixon, 13 Cal. 33, 38-40 (1859). 660Smith v. O'Hara, 43 CaL 371, 375 (1872). 661Custer v. Missoula Public Service Co., 91 Mont. 136, 143-145, 6 Pac. (2d) 131 (1931). Certain types of water use may leave possibilities of multiple-use of water to take into account See, for example, the discussion of waste, seepage, and return waters in chapter 18 and City of San Antonio v. Texas Water Comm'n, 407 S. W. (2d) 752, 762 (Tex. Sup. Ct. 1966), discussed in note 409 supra. 662Hewitt v. Story, 64 Fed. 510, 515 (9th Cir. 1894); "The residue, after a prior appropriation, may be appropriated by others out of the water of the same stream, if there is no interference with a prior appropriator," Fairbury v, Fairbury Mill & Elevator Co., 123 Nebr. 588, 592, 243 N. W. 774 (1932); Barnes v. Sabron, 10 Nev. 217, 233, 245 (1815); State ex rel. Community Ditches v. Tularosa Community Ditch, 19 N. Mex. 352, 371, 143 Pac. 207 (1914); Gates v. Settlers' Mill., Canal & Res. Co., 19 Okla. 83, 91, 91 Pac. 856 (1907); In re Willow Creek, 74 Oreg. 592, 647, 144 Pac. 505 (1914), 146 Pac. 475 (1915); Biggs v. Miller, 147 S. W. 632, 636 (Tex. Civ. App. 1912); Adams v. Portage In., Res. & Power Co., 95 Utah 1, 13-14, 72 Pac. (2d) 648 (1937). When a prior appropriator has diverted the quantity of water to which he is entitled, he may not so impede the remaining streamflow as to prevent it from reaching the junior appropriator's headgate: Van Camp. v. Emery, 13 Idaho 202, 208, 89 Pac. 752 (1907). 663 Union Mill &Min. Co. v.Dangberg, 81 Fed. 73, 106 (C.CD. Nev. 1897). |