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Show 390 APPROPRIATION OF WATER larger and vastly more important question of rights to the use of waters of interstate streams. This is because most-but not all-829 of such cases arise with respect to streams which themselves cross statelines. The topographic features of river valleys are conducive to this result. At this point, how- ever, attention is concentrated on the immediate question of transstate- line diversions of water, regardless of whether the streams from which the water is diverted flow entirely within the upper State or cross the interstate boundary-leaving the larger questions to be considered later in chapter 22. Questions respecting diversions across statelines arose early in the 20th century and became the subject of litigation before there was any legislation to guide the administrators and the courts. A majority of the Western States now have statutes which grant, restrict, or forbid the initiation of an appropriation of water within their borders for use in another jurisdiction. Court Decisions Some fundamental points recognized by the judiciary and problems involved. -These are: (1) "A water right may be acquired under the doctrine of prior appropri- ation by the diversion of water at a point on a stream in one state and its application to beneficial use on lands in another state where the stream flows in both states."830 But that: (2) The water statutes of the States involved have no extraterritorial effect.831 And that: (3) The State in its sovereign capacity may exercise its authority over the waters flowing in the streams within its borders. And it has the right to prohibit their diversion within the State boundaries for use outside of them.832 However, (4) Whatever power a State may have to prevent the acquisition of an appropriative right within its territory for use of water in another State cannot be exercised to the impairment of a preexisting validly established appropriative 829 "pjrst of aj^ ft should be remembered that Bear Creek is not an interstate stream. It is located wholly within the state of Idaho and does not reach into the state of Montana, and so no question of the appropriation and diversion of the waters of an interstate stream for use within this state or in a neighboring state arises in this case." Walbridge v. Robinson, 22 Idaho 236, 240-241, 125 Pac. 812 (1912). i30Lindsy v. McClure, 136 Fed. (2d) 65, 69 (10th Clr. 1943). 831 Id. at 70; West End In. Co. v. Garvey, 117 Colo. 109, 114-115, 184 Pac. (2d) 476 (1947). 832 Walbridge v. Robinson, 22 Idaho 236, 240-247, 125 Pac. 812 (1912). The supreme court sustained an act of the State Engineer in refusing to issue, in the absence of legislative authority therefor, a certificate of completion of construction in connection with a proposed appropriation of water within Idaho for purposes of irrigation in Montana. |