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Show APPROPRIATIVE RIGHT 193 APPROPRIATIVE RIGHT It has long been consistently held that the appropriative right-a right of property-is entitled to protection in the courts. The nature and extent of such protection in western jurisdictions is discussed in some detail in chapters 7 to 9. Following is a brief general discussion of such considerations. The succeeding topics deal with more specific subjects that may apply to appropriative rights. An appropriator, or two or more appropriators acting together, may hold this right as other property and may sue to have it protected against invasion or unlawful interference.11 But an appropriator has no recourse against acts that cause no injury to his water right.12 To be entitled to relief, there must be "a substantial as distinguished from a mere technical or abstract damage" to the water right.13 Furthermore, protection is afforded to the right of the first appropriator only while it is being exercised within reasonable limits.14 The Oregon Supreme Court pointed out that while the legislative control of waters in the State is plenary, it does not include the right to infringe vested rights to the use thereof,15 nor to interfere with them arbitrarily or unreasonably.16 And the Nebraska Supreme Court said that:17 While vested water rights may be interfered with within reasonable limits under the police powers of the state to secure a proper regulation and supervision of them for the public good, any interference that limits the quantity of water or changes the date of its priority to the material injury of its holder is more than regulation and supervision and extends into the field generally referred to as a deprivation of a vested right. Senior Appropriator The California Supreme Court has said, "As between appropriators * * * the one first in time is the first in right, and a prior appropriator is entitled to all the water he needs, up to the amount that he has taken in the past, before a "Kimball v. Gearhart, 12 Cal. 27, 47 (1859); Moore v. The Clear Lake Water Works, 68 Cal. 146, 150, 8 Pac. 816 (1885). "Nevada County & Sacramento Canal Co. v. Kidd, 37 Cal. 282, 313 (1869). 13 WaterfordIn. Dist. v. Turlocklrr. Dist., 50 Cal. App. 213, 221, 194 Pac. 757 (1920). "Basey v. Gallagher, 87 U.S. 670, 683 (1875); Bolter v. Garrett, 44 Oreg. 304, 308, 75 Pac. 142 (1904). "Dillv.Killip, 174 Oreg. 94,103, 147 Pac. (2d) 896 (1944). 16In re Willow Creek, 74 Oreg. 592, 616-617, 144 Pac. 505 (1914), 146 Pac. 475 (1915). 11Enterprise In. Dist. v. Willis, 135 Nebr. 827, 834, 284 N.W. 326 (1939). |