Water rights laws in the nineteen western states, Vol. 1

page 512

512 THE APPROPRIATIVE RIGHT (c) In both Nevada and New Mexico, prior to amendment in 1945 and 1955, respectively,379 the statutes prescribed quantitative limitations upon irrigation water rights. Conveyance losses.-(I) Place of measurement of appropriated water. Water is measured to appropriators at the point at which it is diverted from the stream. This was the practice of the early water users, and the courts recognized it as practicable.380 The measurement at the point of diversion not only includes the quantity of water intended to be delivered at the place of beneficial use, but it is also so regulated as to compensate for necessary transmission losses.381 (2) Reasonable conveyance loss allowable. Always and inevitably there is a difference between the quantity of water diverted from a stream and the quantity that reaches the place of use through an open ditch or flume.382 Particularly is this true in the case of a large and long ir" rigation system.383 Hence, an appropriator "is entitled to hold and di- vert, as incident to his appropriative rights, such amount of water as may be reasonably necessary to take care of normal storage and transporta- tion losses."384 (3) Obligation imposed on water user. Granted, then, that some convey- ance loss in an open ditch is generally unavoidable, a water user who expects 379Nev. Stats. 1945, ch. 56; N. Mex. Laws 1955, ch. 91. 380Caruthers v. Pemberton, 1 Mont. Ill, 117, (1869); Kleinschmidt v. Greiser, 14 Mont. 484, 498, 37 Pac. 5 (1894); Bennett v. Nourse, 22 Idaho 249, 254, 125 Pac. 1038 (1912); Basinger v. Taylor, 30 Idaho 289, 300, 164 Pac. 522 (1917);Ramelli v. Sorgi, 38 Nev. 552, 559, 149 Pac. 71 (1915). 381 In re Althouse Creek, 85 Oreg. 224, Ilk-Ill, 162 Pac. 1072 (1917); Wheat v. Cameron, 64 Mont. 494, 501-502, 210 Pac. 761 (1922). 382Barrows v. Fox, 98 Cal. 63, 66, 32 Pac. 811 (1893). 383 Thayer v. California Development Co., 164 Cal. 117, 137, 128 Pac. 21 (1912). 38*Oliver v. Skinner and Lodge, 190 Oreg. 423, 440-441, 226 Pac. (2d) 507 (1951); Bennett v. Salem, 192 Oreg. 531, 544, 235 Pac. (2d) 772 (1951); Tulare In. Dist. v. Lindsay-Strathmore In. Dist., 3 Cal. (2d) 489, 546-547, 45 Pac. (2d) 972 (1935). "In offering evidence as to the duty of water, the inquiry is properly directed to the amount of water necessary to be diverted from the stream in order to properly irrigate the land, and the question of reasonableness or unreasonableness of the loss from the ditch through seepage and evaporation is a proper subject for inquiry." Clark v. Hansen, 35 Idaho 449, 455, 206 Pac. 808 (1922). In holding that a party, whose right of appropriation for 0.96 second-foot dated back to 1858, was entitled to have enough additional water diverted at the headgate to compensate for seepage, evaporation, and loss necessarily resulting from proper conveyance of the water in order to produce 0.96 second-foot at the irrigated land, the Oregon Supreme Court explained by saying that: "Under existing conditions to measure out at the place of diversion the exact amount which the claimant is entitled actually to put on the land is for all practical purposes equivalent to admitting a right and at the same time denying part of it."/« re Althouse Creek, 85 Oreg. 224, 226-227, 162 Pac. 1072 (1917).