OCR Text |
Show 446 THE APPROPRIATIVE RIGHT Quantity of water in stream.-The right to the requisite flow of water extends to the headgate of the ditch (or other place of diversion, such, for example, if possession is legally taken of natural overflow).43 The flow must then be allowed to continue out from the stream into the diversion ditch,44 and thence through the ditch to the place of use.45 The first appropriator has the right to insist that the water continue to flow to his headgate or point of diversion substantially as it did when he first made the appropriation.46 An early Utah court says that the right of the prior appropriators is to have the water flow to them "in its natural state."47 That to be actionable, the interference with or injury to the prior appropriator's use of his appropriated water supply must be material or substantial, appears to be the general rule.48 A mere temporary or trivial irregularity, which does not cause him any actual injury, would, of course, not be a cause of suit; but, if the interruption is of such a character as to interfere with his use of the water, and cause sensible or positive injury to him, a suit may be maintained to enjoin the further commission of the wrong.49 Materiality of injury caused by a junior appropriator is illustrated by the facts in a Utah case.50 Quantity of water in tributaries.-The right of continued flow extends to the tributaries; that is, the rights of a prior appropriator are entitled to protection against material infringement by subsequent appropriations of water from its tributaries. This rule has been recognized since early times in the other land under certain conditions as discussed below. See "Appurtenance of Water Right to Land-Geneially Appurtenant, but Severable." "Rickey Land & Cattle Co. v. Miller & Lux, 152 Fed. 11, 18 (9th Cir. 1907);McDonald v. Askew, 29 Cal. 200, 206 (1865); Tulare Irr. Dist. v. Lindsay-Strathmore Irr. Dist., 3 Cal. (2d) 489, 546-547, 45 Pac. (2d) 972 (1935); Willey v. Decker, 11 Wyo. 496, 73 Pac. 210 (1903); Moe v. Harger, 10 Idaho 302, 307, 77 Pac. 645 (1904); Naches & Cowiche Ditch Co. v. Weikel, 87 Wash. 224, 227-228, 151 Pac. 494 (1915). "Lower Kings River Water Ditch Co. v. Kings River & Fresno Canal Co., 60 Cal. 408, 410(1882). 45Lakeside Irr. Co. v. Markham Irr. Co., 116 Tex. 65, 74-77, 285 S. W. 593 (1926). "Carson v.Hayes, 39 Oreg. 97,102, 65 Pac. 814 (1901). "Crane v. Winsor, 2 Utah 248, 253 (1878). 4*Noh v. Stoner, 53 Idaho 651, 655-657, 26 Pac. (2d) 1112 (l933);Rocky Ford Irr. Co. v.KentsLake Res. Co., 104 Utah 202, 213-214, 135 Pac. (2d) 108 (1943). 49Carson v. Hayes, 39 Oreg. 97,102, 65 Pac. 814 (1901). S0Logan, Hyde Park & Smithfield Canal Co. v. Logan, 72 Utah 221, 223-226, 269 Pac. 776 (1928). The junior appropriator's upstream power plant caused frequent fluctuations in the streamflow, varying in a 24-hour period from 1 to 15 cubic feet per second, which seriously interfered with the prior appropriators downstream in the proper exercise of their rights. The court held that the junior appropriator had no right to cause this interference. |