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Show 574 THE APPROPRIATIVE RIGHT It follows, then, that rights acquired by juniors after senior rights attach are themselves senior, not only to subsequent appropriations by third parties, but also to further appropriations by the first one on the stream. Thus, if A should hold the first, third, and fifth priorities on a stream, B the second, and C the fourth, A cannot merge his later priorities with his first to the prejudice of the intervening rights acquired by B and C.664 Use of Water When not Needed by Senior (1) Not only may a junior claimant appropriate water in excess of the quantities to which prior appropriations attach, but he may also use water to which a prior appropriation attaches at such times as the water is not needed by the prior appropriator.665 Despite the fact that in many areas the waters of streams are overappropri- ated, "there are always times when prior appropriators do not need the water."666 At such times, "such prior right is temporarily suspended and the next right or rights in the order of priority may use the water until such time as the prior appropriator's needs justify his demanding that the junior appropri- ator or appropriators give way to his superior claim."667 No diversion or use of any surplus beyond the quantity which the prior appropriator has the ability to use for his needs is actionable by him.668 On the contrary, by court action, subsequent appropriators may compel a prior appropriator to release, for their use, water which he does not need for a beneficial purpose.669 664 Union Grain & Elevator Co. v. McCammon Ditch Co., 41 Idaho 216, 221-223, 240 Pac. 443 (1925); Quigley v. Mdntosh, 110 Mont. 495, 505, 103 Pac. (2d) 1067 (1940); Ophir Silver Min. Co. v. Carpenter, 4 Nev. 534, 542-544, 548 (1869); Gates v. Settlers' Mill, Canal & Res. Co., 19 Okla. 83, 91, 91 Pac. 856 (1907); Oliver v. Skinner & Lodge, 190 Oreg. 423, 438, 226 Pac. (2d) 507 (1951); Jensen v. Birch Creek Ranch Co., 76 Utah 356, 362, 289 Pac. 1097 (1930). 66SHufford v. Dye, 162 Cal. 147, 153-154, 159-160, 121 Pac. 400 (1912); Knutson \. Huggins, 62 Idaho 662, 668-669, 115 Pac. (2d) 421 (1941); Tudor v.Jaca, 178 Oreg. 126, 141, 164 Pac. (2d) 680 (1945), 165 Pac. (2d) 770 (1946); Biggs v. Miller, 147 S. W. 632, 636 (Tex. Civ. App. 1912); Johnston v. Little Horse Creek Irrigating Co., 13 Wyo. 208, 227-228, 79 Pac. 22 (1904). 666 Clay Spring Cattle Co. v. Bassett, 76 Colo. 510, 512-513, 233 Pac. 156 (1925). 667Cook v. Hudson, 110 Mont. 263, 282-283, 103 Pac. (2d) 137 (1940). '"Nevada County & Sacramento Canal Co. v. Kidd, 37 Cal. 282, 313 (1869); Clough v. Wing, 2 Ariz. 371, 377-378, 17 Pac. 453 (1888); Vineyard Land & Stock Co. v. Twin Falls Salmon River Land & Water Co., 245 Fed. 9, 22 (9th Cir. 1917). The upstream prior appropriator cannot complain of any use made of the water while permitted to flow downstream past his closed headgate: Lakeside Ditch Co. v. Crane, 80 Cal. 181, 187, 22 Pac. 76 (1889). 669 Clausen v. Armington, 123 Mont. 1, 17-18, 212 Pac. (2d) 440 (1949). Compare Wall v. Superior Court of Yavapai County, 53 Ariz. 344, 356, 89 Pac. (2d) 624 (1939), at note 672 infra. |