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Show 218 PROTECTION OF WATER RIGHTS IN WATERCOURSES to whatever possession the nature of the right is susceptible of, and to its free use and enjoyment."142 In a suit to adjudicate the relative appropriative rights of contesting irrigation companies to the use of streamflow, the Texas Supreme Court, in answering a certified question of venue, agreed that an action to quiet title and determine and establish rights to divert and use water is in the nature of an action to quiet the title to real estate. From that it necessarily followed that the injunctive relief sought was auxiliary to the main purpose of the suit, which was properly brought in the county in which the affected land was situated. The district court of such county, having jurisdiction to determine and establish plaintiffs title to the water and to quiet such title, also acquired jurisdiction of the defendants and was entitled to issue any writ necessary to accomplish the purpose of this suit.143 Damages Conventional legal remedies to protect appropriative or riparian rights against infringement by another may include a suit for damages, an action to enjoin further interference, or both. Instances in which an injunction may be obtained in addition to, or instead of, money damages are discussed in later subtopics. A number of the applicable rules for determining whether one may have a cause of action for damages have been referred to in the preceding topics. The diversion, obstruction, pollution, or other alteration of the quantity or quality of the water by others may give rise to a cause of action, depending upon the applicable rules and the particular circumstances. Ordinarily, in addition to any other requirements, one must show that interference with his water right has resulted in substantial injury in order to have a cause of action for damages.144 Following is a discussion of some court decisions regarding appropriative, riparian, or other rights that concern questions pertaining to the determination 142GutheiI Park Inv. Co. v. Montclair, 32 Colo. 420, 424-425, 427, 76 Pac. 1050 (1904); accord, Bessemer Irrigating Ditch Co. v. Woolley, 32 Colo. 437, 440-441, 76 Pac. 1053 (1904); Blanchard v. Holland, 106 Colo. 147,154, 103 Pac. (2d) 18 (1940). 143Lakeside Irr. Co. v. Markham Irr. Co., 116 Tex. 65, 77-78, 285 S.W. 593 (1926). 144Regarding appropriative rights, see, e.g., Bailey v. Idaho Irr. Co., 39 Idaho 354, 358, 227 Pac. 1055 (1924); Tartar v. Spring Creek Water & Min. Co., 5 Cal. 395, 397, 399 (1855); Phoenix Water Co. v. Fletcher, 23 Cal. 481, 487 (1863);Natoma Water & Min. Co. v. McCoy, 23 Cal. 490, 492 (1863); Wixon v. Bear River & Auburn Water & Min. Co., 24 Cal. 367, 368-373 (1864). Regarding riparian rights, see, e.g., Colorado Power Co. v. Pacific Gas & Elec. Co., 218 Cal. 559, 564, 24 Pac. (2d)495 (1933);Durkeev. Board of County Comm'rs, 142 Kans. 690, 693-694, 51 Pac. (2d) 984 (1935); Sayles v. Mitchell, 60 S. Dak. 592, 595, 245 N.W. 390 (1932). Questions regarding the burden of proof in these and other regards are discussed under "Burden of Proof," infra. |