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Show PROPERTY CHARACTERISTICS 451 stream as to render it less available to the downstream senior is as injurious as depriving the latter of a part of his appropriated water.72 This rule works both ways as between prior and subsequent appropriators. Numerous authorities announce the doctrine that while a prior use of the water of a stream for mining purposes necessarily contaminates it to some extent, such contamination or deterioration of the quality of the water cannot be carried to such a degree as to inflict substantial injury upon another user of the waters of said stream.73 To the extent that contamination of the water by the senior appropriator begins or is increased after the junior appropriation is made, this proposition is a logical derivative of the well-recognized general rule that a junior appropri- ator has a vested right as against his senior to insist upon a continuance of the conditions that existed at the time the later appropriation was made, provided that a change would injure him.74 Some points concerning mining vis-a-vis agricultural water rights are discussed below in this sub topic. (5) Material deterioration of quality a question of fact. In the opinion in its early landmark western water rights case of Atchison v. Peterson, the United States Supreme Court stated that:75 What diminution of quantity, or deterioration in quality, will constitute an invasion of the rights of the first appropriator will depend upon the special circumstances of each case, considered with reference to the uses to which the water is applied. A slight deterioration in quality might render the water unfit for drink or domestic purposes, whilst it would not sensibly impair its value for mining or irrigation. In all controversies, therefore, between him and parties subsequently claiming the water, the question for determination is necessarily whether his use and enjoyment of the water to the extent of his original appropriation have been impaired by the acts of the defendant.* * * (6) Remedies for substantial injury. "Any material deterioration of the quality of the stream by subsequent appropriators or others without superior 72Arizona Copper Co. v. Gillespie, 12 Ariz. 190, 202-203, 100 Pac. 465 (1909), affirmed, 230 U.S. 46 (1913). 73Ravndalv.NorthforkPlacers, 60 Idaho 305, 311-312, 91 Pac. (2d) 368 (1939). 74Bennett v. Nourse, 22 Idaho 249, 253, 125 Pac. 1038 (1912);HM v. StandardMin. Co., 12 Idaho 223, 234, 85 Pac. 907 (1906). 75Atchison v. Peterson, 87 U.S. 507, 514-515 (1874). See Arizona Copper Co. v. Gillespie, 230 U. S. 46, 56-57 (1913);Montana Co. v. Gehring, 75 Fed. 384, 388 (9th Cir. 1896); Ravndal v. North fork Placers, 60 Idaho 305, 312, 91 Pac. (2d) 368 (1939); "The reasonableness of the use is a question for the jury, to be determined by them upon the facts and circumstances of each particular case," Dripps v. Allison's Mines Co., 45 Cal. App. 95, 99, 187 Pac. 448 (1919). As to reasonable use criteria applied by court or jury, see also cases in note 71 supra. |