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Show METHODS OF APPROPRIATING WATER OF WATERCOURSES 429 preference."987 This was based on a provision in the Howell Code, adopted early in the Territorial regime.988 With respect to this the State supreme court stated in 1901 that: "As applied to private ditches, the statute must be construed as a declaration that not mere priority of diversion, but priority of use and application of water upon particular lands, shall govern in determining conflicting rights."989 (2) Constitutions or statutes of several States recognize the general rule that priority in appropriation gives the better right as between water appropriators, but that in time of water shortage users for domestic purposes have preference over all others, and agriculture has preference over manufacturing.990 (a) The Colorado constitution makes no mention of compensation in the event that a junior appropriator of domestic water should assert the constitutional preference over a senior appropriator for irrigation at a time when there is not enough water for both. However, while recognizing the preference, the Colorado Supreme Court held that it does not entitle one to exercise it without payment of just compensation.991 (b) In the Idaho constitution there is an additional provision that in an organized mining district, mining purposes and milling connected with mining are preferred over manufacturing and agriculture. But, it goes on to say, the exercise of such preferences is subject to the laws regulating exercise of the power of eminent domain. And the Idaho Supreme Court agreed that water could not be taken from prior appropriators without compensation in order to supply the domestic needs of others.992 It is held further that the constitutional preference in favor of mining does not authorize or excuse the filling up of natural stream channels or the discharge of poisonous minerals into their waters.993 (c) The Nebraska constitutional provision, adopted in 1920, also declares that no inferior right may be acquired by a superior right without compensation. 987 Ariz. Rev. Stat. Ann. § 45-175 (1956). 988 Terr. Ariz. Howell Code, ch. LV, § 17 (1864). 9a9Biggs v. Utah Irrigating Ditch Co., 7 Ariz. 331, 349, 64 Pac. 494 (1901). This construction, when considered in connection with the section giving owners of irrigable lands the right to construct acequias and to obtain the necessary water, was regarded by the court as the underlying principle in its broad application to all appropriations of water for irrigation. 990Colo. Const., art. XVI, § 6; Idaho Const., art. XV, § 3; Nebr. Const, art. XV, § 6; Nebr. Rev. Stat. § 46-204 (1968). "'Sterling v. Pawnee Ditch Extension Co., 42 Colo. 421, 426-428, 94 Pac. 339 (1908), cited and quoted with approval in Black v. Taylor, 128 Colo. 449, 457, 264 Pac. (2d) 502 (1953). SeeMontrose Canal Co. w. Loutsenhizer Ditch Co., 23 Colo. 233, 236-238, 48 Pac. 532 (1896). Strickler v. Colorado Springs, 16 Colo. 61, 72-75, 26 Pac. 313 (1891). 992Basinger v. Taylor, 30 Idaho 289, 294-295, 164 Pac. 522 (1917)\MontpelierMill. Co. v.Montpelier, 19 Idaho 212,219-220, 113 Pac. 741 (1911). 993Ravndal v. Northfork Placers, 60 Idaho 305, 311,91 Pac. (2d) 368 (1939); Bunker Hill & Sullivan Min. & Concentrating Co. v.Polak, 7 Fed. (2d) 583,585 (9th Cir. 1925). |