OCR Text |
Show ELEMENTS OF THE APPROPRIATIVE RIGHT 519 which the right had been acquired many years previously, it was said that:399 Waters primarily belong in the watershed of their origin, if there is land therein which requires irrigation. * * * Courts have many times sustained such foreign appropriation, and perhaps each case would be determined upon its own individual merit. It is sufficient here to say that the right to the use of this water for placer mining purposes by the appellants has been sustained, but it may be appropriate to remark that the burden placed upon the water should not be added to, to the detriment of appropriations made for irrigating lands within the area of the stream from which the water is diverted. * * * An objection to taking water away from its watershed is that the benefit from return flow from lands irrigated with such water will accrue to the new watershed, and thus be lost to the lands lying within the original watershed. This merges into the subject of changes in place of use of appropriated water, which is discussed in chapter 9 under "Change in Exercise of Water Right-Place and Purpose of Use." Under many circumstances, preexisting rights are not injured by a diversion out of the watershed of an appropriation specifically made for that purpose, which usually attaches only to the surplus in the streamflow above the requirements of these senior rights. Some Statutory Authorizations and Restrictions California.-The Water Code imposes certain restrictions upon the taking of water, pursuant to State and Federal plans, away from the localities in which it originates, aimed at protection of these localities from deprivation of water reasonably required for their beneficial needs and development. Statewide restrictions relate to counties of origin.400 Central Valley Project restrictions relate to watersheds or areas of origin.401 These restrictions have not yet been construed by the State supreme court. The California Attorney General has rendered opinions with respect to their scope and applicability.402 Federal '"Galliger v. McNulty, 80 Mont. 339, 356, 260 Pac. 401 (1927); Spokane Ranch & Water Co. v. Beatty, 37 Mont. 342, 351-352, 96 Pac. 727, 97 Pac. 838 (1908). In a case decided in 1942, an appropriator unsuccessfully claimed title to the return flow from water brought into the watershed by another party: Allendale Irr. Co. v. State Water Conservation Board, 113 Mont. 436, 439, 449, 127 Pac. (2d) 227 (1942). 400 Cal. Water Code § § 10500 to 10507 (West Supp. 1970). 401 Cal. Water Code § § 11128 (West 1956) and 11460-11463 (West Supp. 1970). 402 25 Cal. Op. Atty. Gen. 8 (1955); 29 Cal. Op. Atty. Gen. 136 (1957). |