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Show 450 THE APPROPRIATIVE RIGHT acknowledged by other western courts as well.66 In a 1959 Washington case, a finding that logging operations had permanently polluted the domestic water supply of a community, destroyed the usefulness of its prior appropriative rights, and depreciated the value of the members' real estate was sustained by the Washington Supreme Court.67 In a 1967 Colorado case, the court concluded that although all the water used in a State fish hatchery was returned to the stream, the water was returned to the stream in a contaminated and damaged condition as a direct result of which financial loss was suffered by the plaintiffs who held appropriative rights. Judgments for damages and the issuance of an injunction were sustained.68 Much earlier, the Washington Supreme Court had acknowledged the correctness of the general rule that a prior appropriator is entitled to injunctive protection against pollution of his water supply by the discharge therein of such deleterious matter as to render it unfit for purposes of irrigation.69 In the instant case, however, domestic use had ceased long before the action was brought, and there was no eivdence that the water had been rendered unfit for irrigation. The damage to plaintiff's irrigation system from waste waters discharged upstream consisted of silt deposits in the canal and, in some cases, clogging of outlet pipes. The court took the view that plaintiff had appropriated water knowing that, in time, the country above might be settled and cultivated and that the settlers would be entitled to use the stream reasonably for both drainage and irrigation. "The plaintiff must accomodate its appliances for irrigation to the conditions which a reasonable use may require. * * * Until the plaintiff can show an unreasonable use by the defendants in conveying waste waters into this creek, there is clearly, we think, no cause for an injunction." (4) The question of substantial injury. As noted above, California early adhered to the qualification that in order to afford an appropriator a ground of action, deterioration of water quality must be material in its injurious effect upon his use of the water.70 A Colorado court has said that the appropriator has the right to have the streamflow unimpaired in any permanent and unreasonable way.71 Courts of equity are not warranted in interfering with upstream mining industries solely because they cause slight inconveniences or occasional annoyance or even some degree of interference, so long as they do no substantial damage. But to permit a subsequent appropriator to so pollute the 66Helena \.Rogan, 26 Mont. 452, 469-470, 68 Pac. 798 (1902). 61Drake v. Smith, 54 Wash. (2d) 57, 60-63, 337 Pac. (2d) 1059 (1959). 68 Game and Fish Comm'nv. Farmers In. Co.,___Colo------^ 462 Pac. (2d) 562 (1967). 69Naches & Cowiche Ditch Co. v. Weikel, 87 Wash. 224, 227-233, 151 Pac. 494 (1915). 10Phoenix Water Co. v. Fletcher, 23 Cal. 481, 487 (1863). 71 Cushman v. Highland Ditch Co., 3 Colo. App. 437, 439, 33 Pac. 344 (1893). Regarding reasonable use criteria, see also Suffolk Min. & Mill Co. v. San Miguel Consol. Min. & Mill Co., 9 Colo. App. 407, 48 Pac. 828, 832 (1897); and dicta, citing cases, in State v. California Packing Corp., 105 Utah 182, 141 Pac. (2d) 386, 388 (1943). |
