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Show METHODS OF APPROPRIATING WATER OF WATERCOURSES 363 reservoirs should not and cannot, by reason of that fact alone, become storage water.681 A type of reservoir formed by a high diversion dam impounds water only in "dead" storage. It serves the purpose of raising the stream water level to a height at which the flow can be diverted into ditch headgates. Water so withheld below the level of the diversion gate of course remains there after the irrigation season unless an outlet in the dam or a pumping plant is provided.682 Storage carry-over. -To store water in one year for use in a later year is common practice. Conservation and better utilization of water are furthered by impounding water when it is available in a wet season in order to meet demands in a later season or later year of short water supply. The Montana Supreme Court expressed its approval of the principle of utilizing a reservoir to store water in any year for use in that or in succeeding years.683 But in two recent cases it appears to have taken a more restrictive approach regarding the refilling of a reservoir or other storage of water during the irrigating season at the expense of irrigation appropriators of the natural streamflow.684 The Colorado Supreme Court has construed the Colorado water rights statute685 as not allowing more than one filling of a reservoir on one priority in any one year.686 However, this court concluded that nothing in the statute limited the beneficial use of water for adjudication purposes to the year of diversion and storage. Hence, water need not be withdrawn from the reservoir in the season of storage in order to receive proper credit for adjudication purposes.687 All requirements of the law are fulfilled, said the court, when the water is applied to a beneficial use within a reasonable time after storage. 6S1Nepesta Ditch & Res. Co. v. Espinosa, 73 Colo. 302, 303, 215 Pac. 141 (1923). "It is a matter of common knowledge, of which we must take notice, that a vast amount of water applied to direct irrigation comes through reservoirs and we can see no objection. The fact that water diverted for direct irrigation passes through reservoirs on its way to the land on which it will be used does not make it storage water." 682 The Nebraska water rights statute provides that a reservoir constructed for the purpose of withholding water and raising it to permit its being applied to lands of a higher level or given a greater head for power shall not be considered a storage reservoir. But to perfect an appropriation of such flowing water, the reservoir and the dam must be described in the application: Nebr. Rev. Stat. § 46-243 (1968). 683Federal Land Bank v. Morris, 112 Mont. 445, 454-456, 116 Pac. (2d) 1007 (1941). 6MWhitcomb v. Helena Water Works Co., 151 Mont. 443, 444 Pac. (2d) 301 (1968); Gwynn v. City of Philipsburg, _ Mont. _, 478 Pac. (2d) 855, 859 (1970), in which the court said, "The primary right to the use of water in a stream is that of the appropriator of the natural flow, not the storage claimant." This is mentioned above under "Method of Appropriation-Relative priorities of direct flow and storage water rights." 68SColo. Rev. Stat. Ann. § 148-5-1 et seq. (1963). 686 Windsor Res. & Canal Co. v. Lake Supply Ditch Co., 44 Colo. 214, 223-225, 98 Pac. 729 (1908); Holbrook Irr. Dist. v. Fort Lyon Canal Co., 84 Colo. 174, 192, 269 Pac. 574 (1928). 681North Sterling Irr. Dist. v. Riverside Res. & Land Co., 119 Colo. 50, 200 Pac. (2d) 933 (1948). |