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Show 570 THE APPROPRIATIVE RIGHT rights in litigation were ground water rights, not subject to the administrative procedure in the Water Code. (2) As a result of statutory preferences and restrictions that now prevail generally in the West with respect to permits for the appropriation of streamflow, the first applicant is not necessarily the one who acquires the first priority (see the discussions of restrictions and preferences at the end of chapter 7). With respect to such appropriations, it is more nearly correct to say that the one who holds the highest priority-who may or may not have been the earliest applicant-is first in right. (3) However, the rule as it was emphasized in the early decisions was recognized throughout the West. "The senior appropriator may lawfully demand that he have at his headgate sufficient water to supply his present needs,"647 so that "Each junior appropriator is entitled to divert water only at such times as all prior appropriators are being supplied under their appropria- tions under conditions as they existed at the time the appropriation was made."648 Many other decisions from many States stated or applied this historic fundamental facet of the appropriation doctrine.649 Except where statutory exceptions intervene, the principle is still valid. In fact, the Utah water appropriation statute provides that, subject to a proviso concerning statutory preferences in time of scarcity of water, "Appropriators shall have priority among themselves according to the dates of their respective appropriations, so that each appropriator shall be entitled to receive his whole supply before any subsequent appropriator shall have any right; * * * ,"650 Maintenance of Stream Conditions (1) One of the most important of the junior appropriator's safeguards, discussed later,651 is his right to have the stream conditions maintained '"Vogel v. Minnesota Canal & Res. Co., 47 Colo. 534, 540, 107 Pac. 1108 (1910). 64*Beecher v. Cassia Creek In. Co., 66 Idaho 1, 9-10, 154 Pac. (2d) 507 (1944). "The right of a prior appropriator of water is paramount." In re Rogue River, 102 Oreg. 60, 65, 201 Pac. 724 (1921). The right of defendants (junior appropriators) "is at all times subservient to the primary right of plaintiffs, and can be exercised only after plaintiffs' needs have been supplied." Harkey v. Smith, 31 N. Mex. 521, 530, 247 Pac. 550 (1926). Subsequent appropriators are bound to take notice of the accrued rights of prior appropriators: Kearney Water & Electric Powers Co. v. Alfalfa In. Dist., 97 Nebr. 139, 145, 149 N.W. 363(1914). 649Some typical cases are Mettler v. Ames Realty Co., 61 Mont. 152, 159, 169, 201 Pac. 702 (1921); Jerrett v. Mahan, 20 Nev. 89, 98, 17 Pac. 12 (1888); Gay v. Hicks, 33 Okla. 675, 682, 124 Pac. 1077 (1912); Scoggins v. Cameron County W. I. Dist. No. 15, 264 S. W. (2d) 169, 173-174, (Tex. Civ. App. 1954, error refused n.r.e.);McNaughton v. Eaton, 4 Utah (2d) 223, 225-226, 291 Pac. (2d) 886 (1955); Avery v. Johnson, 59 Wash. 332, 335, 109 Pac. 1028 (1910). 650 Utah Code Ann. § 73-3-21 (1968). 651 Under "Rights of Junior Appropriator-Maintenance of Stream Conditions." |
