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Show 504 THE APPROPRIATIVE RIGHT thereto for the entire 24 hours of each day by using the same for only a half or any other portion of the time less than the whole.342 Some questioning or nonapplication of the rule.- Thus, measurement of an appropriative right not only by quantity but also by time, or by period of use of water, became well established in western jurisprudence. In some cases, however, questions were raised, or the rule was not applied to the factual situation. Near the close of the 19th century, in McGinness v. Stanfield, the Idaho Supreme Court expressed itself as of the opinion that so long as an appropriator applied the water to a beneficial purpose, he was the judge within the limits of his appropriation of the times and place of use; and that a trial court was exceeding its province in dictating time of use.343 This decision was distinguished 30 years later by the same court, which declared its agreement with the general western rule.344 Despite this disapproval of McGinness v. Stanfield by the Idaho Supreme Court, Judge Bourquin of the United States District Court for the District of Idaho a few years later expressed his approval of that decision, saying "and why, when, and where departed from, prior to the suits herein, has not been made known to the court."345 The judge was skeptical of the practicability of measuring an appropriation by time. He took the position that as quantity of water and requirements therefor vary so greatly from time to time, its application must be left to the judgment of the irrigator, subject to control by the court's water master. Shortly after the start of the 20th century, a Federal court in Nevada approved the general rule followed by the courts of the State, but held that under the facts of the instant case the appropriation had been made without 342Northern California Power Co., Consolidated v. Flood, 186 Cal. 301, 306, 199 Pac. 315 (1921). This case dealt with acquisition of rights by prescription, but the principle is equally applicable to appropriation without the element of adverse use. For some examples of division of water supply based on period of use, see Smith v. O'Hara, 43 Cal. 371, 372 (1872); Santa Paula Water Works v.Peralta, 113 Cal. 38, 44, 45 Pac. 168 (1896); Suisun v. De Freitas, 142 Cal. 350, 351-353, 75 Pac. 1092 (1904); Thome v. McKinley Bros., 5 Cal. (2d) 704, 710-712, 56 Pac. (2d) 204 (1936); Cache la Poudre Res. Co. v. Water Supply & Storage Co., 25 Colo. 161, 162-167, 53 Pac. 331 (1898); In re North Powder River, 75 Oreg. 83, 94-95, 144 Pac. 485 (1914), 146 Pac. 475 (1915); Smyth v. Jenkins, 148 Oreg. 165, 168-169, 33 Pac. (2d) 1007 (1934); Oliver v. Skinner & Lodge, 190 Oreg. 423, 436, 442443, 226 Pac. (2d) 507 (1951); Cleary v. Daniels, 50 Utah 494, 500, 167 Pac. 820 (1917). In South Dakota, an injunction was issued against the injurious practice of a junior appropriator in withholding by a dam three-fourths of the streamflow during the daytime for the purpose of discharging in large quantities at night for power purposes: Lone Tree Ditch Co. v. Rapid City Elec. & Gas Light Co., 16 S. Dak. 451, 455, 462, 93 S. W. 650 (1903). 343McGinness v. Stanfield, 6 Idaho 372, 374-375, 55 Pac. 1020 (1898). 3A4Dunn v. Boyd, 46 Idaho 717, 721-723, 271 Pac. 2 (1928). Ms United States v. American Ditch Assn., 2 Fed. Supp. 867, 869 (D. Idaho 1933). |