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Show RELATIVE RIGHTS OF SENIOR AND JUNIOR APPROPRIATORS 571 substantially as they were when he made his appropriation. This principle applies equally to the senior appropriator.652 The junior's grievance in most situations would be that changes in the exercise of the senior rights after the junior appropriates water interfere with the proper exercise of the latter!s subsequently acquired rights. The senior, on the other hand, is concerned with the effect that new junior projects may have on the continued operation of his own. (2) In 1953, the Colorado Supreme Court, while acknowledging the principle that an appropriator of waters of a stream "has a vested right to the continued maintenance of conditions on the stream as they existed at the time he made his appropriation," pointed out that "This doctrine, of course, applies only to interference by man with natural conditions upon the stream in existence at the time of the appropriation."653 (3) In 1939, the Oregon Supreme Court held that the rights of a downstream appropriator are not infringed by upstream construction of structures for the purpose of controlling soil erosion in the stream channel- provided water is not diverted, the streambed is restored as nearly as possible to its original condition, and the work can be done without material interference with the rights of the downstream appropriator. This question, it was held, depends largely upon the facts, "and we do not presume to determine it as a matter of law." As to the policy invoked, the court held that:654 To deny our water users the right to control such streams and prevent the erosion that would soon take place would mean the utter destruction of much of our most valuable irrigated lands throughout the state. It is the duty of the landowner to prevent the construction of dams to a point where diversion from the channel will occur, but the landowner has a right to use or permit such dams for the purpose of erosion control, where they do not divert water from the channel or from the diversion works of another appropriator. It is shown that if the erosion is permitted to continue the water would be drained from the lands bordering on the creek and they would become dry and worthless. A section added to the California Water Code in 1953 provides that:655 An appropriation of water of any stream or other source of water under this part does not confer authority upon the appropriator to prevent or interfere with soil conservation practices above the point of diversion in the watershed in which such stream or other source originates, which practices 6Si Vogel v. Minnesota Canal & Res. Co., 47 Colo. 534, 540, 107 Pac. 1108 (1910); East Bench Irr. Co. v. Deseret In. Co., 2 Utah (2d) 170, 177-178, 271 Pac. (2d) 449 (1954). 6S3Mendenhall v. Lake Meredith Res. Co., 127 Colo. 444, 446-447, 257 Pac. (2d) 414 (1953). 65*State ex rel. Johnson v. Stewart, 163 Oreg. 585, 605, 96 Pac. (2d) 220 (1939). 655Cal. Water Code § 1252.1 (West 1956). |