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Show ELEMENTS OF THE APPROPRIATIVE RIGHT 499 than the quantity of water to which he is lawfully entitled must return the surplus to the stream without unnecessary waste.315 The taking of more than the quantity of water actually put to reasonable beneficial use is a taking without right,316 for the excess water is subject to ap- propriation by any other person who may put it to beneficial use.317 Actual needs of water user.-An appropriative right is limited by the actual reasonable needs of the appropriator, and he can acquire no right to the use of more water than is necessary for the purposes of his ap- propriation. As said by the Idaho Supreme Court, "it is against the public policy of the state, as well as against express enactments, for a water user to take from an irrigation canal more water, of that to which he is entitled, than is necessary for the irrigation of his land and for domestic purposes."318 This principle has been declared in many cases decided by many western courts.319 It follows that both beneficial use of water and actual need for the water are measures of the extent of one's appropriative water right. As noted above in discussing ditch capacity as a measurement factor, these terms do not necessarily mean the same thing, for the quantity of water reasonably required for the water user's needs may not be the quantity he has put to beneficial use. To say that a particular appropriator is making beneficial use of more water than he needs would be contradictory. But it would not be irrational to find that he is making beneficial use of less water than he needs. He might be utilizing only a small part of his farming potential. In any event, if beneficial use is less than needs, the water right will be measured by beneficial use unless, of course, the original intent includes additional use and is being pursued diligently. 315Natoma Water & Min. Co. v. Hancock, 101 Cal. 42, 51-52, 31 Pac. 112 (1892), 35 Pac. 334 (1894); Burkart v. Meiberg, 37 Colo. 187, 190, 86 Pac. 98 (1906); Clausen v. Armington, 123 Mont. 1, 17-18, 212 Pac. (2d) 440 (1949). 316 Thayer v. California Development Co., 164 Cal. 117, 137,128 Pac. 21 (1912). 311Hufford v. Dye, 162 Cal. 147,153-154,121 Pac. 400 (1912). 3l*Coulson v. Aberdeen Springfield Canal Co., 39 Idaho 320, 323-324, 227 Pac. 29 (1924). And earlier in Oregon: "If more water is diverted by a settler than is needed for the purpose intended, or is actually used for such need, he acquires a right only to the amount so needed and used." Porter v.Pettengill, 57 Oreg. 247, 249,110 Pac. 393 (1910). 319For example: Clough v. Wing, 2 Ariz. 371, 378, 17 Pac. 453 (1888); Senior v. Anderson, 130 Cal. 290, 296-297, 62 Pac. 563 (1900); Fort Lyon Canal Co. v. Chew, 33 Colo. 392, 398-400, 81 Pac. 37 (1905); Cook v. Hudson, 110 Mont. 263, 282-283, 103 Pac. (2d) 137 (1940); Barnes v. Sabron, 10 Nev. 217, 243-244 (1875); Simmons v. Winters, 21 Oreg. 35, 51, 27 Pac. 7 (1891); Quinn v. John Whitaker Ranch Co., 54 Wyo. 367, 378, 92 Pac. (2d) 568 (1939); Hewitt v. Story, 64 Fed. 510, 514 (9th Cir. 1894); Vineyard Land & Stock Co. v. Twin Falls Oakley Land & Water Co., 245 Fed. 30, 34 (9th Cir. 1917);Dern v. Tanner, 60 Fed. (2d) 626, 628 (D. Mont. 1932). |