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Show WASTE, SEEPAGE, AND RETURN WATERS 577 than can be beneficially applied, by making excessive use of the water, he has no title to the surplus and the claimant of the excess water likewise can acquire no ownership therein.67 The character of an appropriative right to the use of waste water was thus described by the Oregon Supreme Court:68 Altho the right to such waste water that may be obtained for irrigation may be temporary, or rather the use of the water may be irregular and uncertain, still it may be very valuable. The right to such waste water is much the same as the appropriation and right to water in a small stream, which during a portion of the season runs low and practically dries up. The right still exists but there is no water to be used. * * * We see no reason why the right to waste or spring water may not be permanent, even though the use thereof may be interrupted, that is, the right exists to be exercised when there is water available. It was also held in this case69 that a city that had allowed excess water to escape from its reservoir from time to time with no intent of recapturing or enjoying it, and allowed the water to find its way to the natural level of the country, had no interest therein and could not confer any right to the use of such water upon any party. "The waste water was then subject to appropriation under the statute the same as any other water." And the supreme court carefully distinguished between the abandonment of specific parcels or water (such as composed the waste water released by the city) and abandonment of a water right. The city had absolute control of the water that it had diverted and impounded in the exercise of its water right, and by the release of the excess water had abandoned no water right.70 Utah.-As between two adjoining tracts of land, the owner of the upper property from which waste and seepage waters pass to the lower tract, to the benefit of the latter, is under no obligation to continue wasting water to supply this use in the future. In an early decision where irrigation waste waters had been used for many years by a lower landowner, the Utah Supreme Court announced:71 The law is well settled, in fact the authorities all agree, that one landowner receiving waste water which flows, seeps, or percolates 67Hill v. American Land & Livestock Co., 82 Oreg. 202, 209-210,161 Pac. 403 (1916). 68 Vaughn v. Kolb, 130 Oreg. 506, 517-518, 280 Pac. 518 (1929). 69130 Oreg. at 516-517. 70130 Oreg. at 512-513. 11 Gams v. Rollins, 41 Utah 260, 272, 125 Pac. 867 (1912). In a case involving the rights of stockholders in an irrigation company to use waste and seepage waters produced by the irrigation of their lands, the court concluded that these waters could be captured by the individual shareholders at the lower ends of their fields and reused, Smithfield West Bench In. Co. v. Union Cent. Life Ins. Co., 105 Utah 468, 472, 142 Pac. (2d) 866 (1943), 113 Utah 356, 363, 195 Pac. (2d) 249 (1948). |