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Show CHANGE IN EXERCISE OF WATER RIGHT 629 person entitled to divert a given quantity of water from a stream may take the same at any point on the stream, and may change the point of diversion at pleasure, if the rights of others are not thereby injuriously affected.175 Other courts announced the rule from time to time.176 "There is nothing in the law of prior appropriation that prevents" operation of the qualified rule.177 And by the same token, "Under the statute and decisions, a prior appropriator has no right to change the point of diversion when it will in any manner injure a subsequent appropriator."178 Some other aspects of the rule. -"The right to change the place of diversion and use of water depends upon and must be controlled by the facts of each particular case, and no inflexible rule applicable to all conditions can be laid down."179 An appropriator may change the point of diversion of a portion of his appropriative right, as well as the entire quantity.180 lllsKidd v. Laird, 15 Cal. 161, 179,181 (1860). Two years later, this court pointed out that the right to make such changes was not "absolute and unqualified," but included the condition that no injury be inflicted upon the rights of others: Butte T. M. Co. v. Morgan, 19 Cal. 609, 616 (1862). i76Hague v. Nephilrr. Co., 16 Utah 421, 434, 52 Pac. 765 (1898);Spring CreekIrr. Co. v. Zollinger, 58 Utah 90, 95, 197 Pac. 737 (1921); Twaddle v. Winters, 29 Nev. 88, 103, 85 Pac. 280 (1906); 89 Pac. 289 (1907); "The law seems to be well settled" to this effect: Matty v. Weidensteiner, 88 Wash. 398, 403404,153 Pac. 342 (1915); "It must be conceded that generally" this is true: In re Johnson, Appeal from Department of Reclamation, 50 Idaho 573, 578, 300 Pac. 492 (1931). 171} Johnston v. Little Horse Creek Irrigating Co., 13 Wyo. 208, 237, 79 Pac. 22 (1904). "^Bennett v. Nourse, 22 Idaho 249, 254, 125 Pac. 1038 (1912). A well established proposition: Loyning v. Rankin, 118 Mont. 235, 247, 165 Pac. (2d) 1006 (1946). In Farmers Highline Canal & Reservoir Co. v. Golden, 129 Colo. 575, 272 Pac. (2d) 629, 634 (1954), involving a proceeding to change the diversion point by a city that had acquired decreed water rights formerly used for irrigation, the court said, "Petitioner contends ... that it is entirely within the right of an appropriator of water to enlarge upon his use, and now that the City of Golden is the owner, it may enlarge upon the use to the extent of the entire decree. Counsel for petitioner here confuse two altogether different principles. This doctrine even on behalf of an original appropriator, may be applied only to the extent of use contemplated at the time of appropriation. It has no application whatever to a situation where a decree is sought for change of point of diversion or use. There the right is strictly limited to the extent of former actual usage." This case was quoted and discussed in City of Westminster v. Church, 167 Colo. 1, 445 Pac. (2d) 52, 58 (1968), involving a change of use, discussed at note 234 infra. 179Crockett v. Jones, 47 Idaho 497, 503-504, 277 Pac. 550 (1929). An earlier, lengthier statement to the same effect appears in Vogel v. Minnesota Canal & Res. Co., 47 Colo. 534, 537-538, 107 Pac. 1108 (1910). In Keller v. Magic Water Co., 92 Idaho 226, 441 Pac. (2d) 725, 732-734 (1968), there was merely an amendment of a permit to show the correct point of diversion rather than an authorized change in the point of diversion. See chapter 8, note 394. ""Perry v. Calkins, 159 Cal. 175, 179, 113 Pac. 136 (1911). Citing this case, an appellate court said later that: "We fail to discover any sound reason why an appropriator of |
