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Show RELATIVE RIGHTS OF SENIOR AND JUNIOR APPROPRIATORS 575 The policy reason for the rule is thus explained by the Nebraska Supreme Court:670 The use of water for irrigation in this state is a natural want. The inadequacy of supply to meet the demands of the public requires strict administration to prevent waste. It is therefore the policy of the law that junior appropriators may use available water within the limits of their own appropriations so long as the rights of senior appropriators are not injured or damaged. (2) In view of this long recognized right of junior appropriators, it is obviously to their advantage-as well as in the interest of water conservation generally-that the practices of their seniors be carried out without unnecessary waste. As then the senior appropriator's right does not include the reasonably avoidable waste of water,671 by a proper action a junior appropriator may so limit the use by his senior as to avoid unnecessary waste.672 The New Mexico Supreme Court held, however, that a downstream senior appropriator must have demanded the water in order to have a cause of action.673 Otherwise, said the court, water may be wasted.674 (3) An appropriator of water, therefore, has no surplus which he can either sell or give to another party as against subsequent appropriators.675 It follows 610State ex rel. Gary v. Cochran, 138 Nebr. 163, 172-173, 292 N. W. 239 (1940). 671 Santa Cruz Res. Dist. v. Rameriz, 16 Ariz. 64, 70, 141 Pac. 120 (1914). The right of a prior appropriator with respect to a later one does not extend to use of a wasteful method of diversion, nor of ditches and structures that are not in good serviceable condition: Warner Valley Stock Co. v. Lynch, 215 Oreg. 523, 536-542, 336 Pac. (2d) 884 (1959). "When his requirements have been satisfied, he no longer has a right to the use of water, but must permit others to use it." Snow v. Abalos, 18 N. Mex. 681, 695, 140 Pac. 1044 (1914). In the arid State of Utah, to waste water is to injure the public welfare; hence, it is "the duty of the user of water to return surplus or waste water into the stream from which it was taken so that further use can be made by others." Brian v. Fremont Irr. Co., 112 Utah 220, 224-225, 186 Pac. (2d) 588 (1947). 672 Wall v. Superior Court of Yavapai County, 53 Ariz. 344, 356, 89 Pac. (2d) 624 (1939). Compare Clausen v.Armington, 123 Mont. 1, 17-18, 212 Pac. (2d)440 (1949), at note 669 supra. '"Worley v. U. S. Borax & Chemical Corp., 78 N. Mex. 112, 428 Pac. (2d) 651, 653-655 (1967), citing, at 654, Vogel v. Minnesota Canal & Reservoir Co., 47 Colo. 534, 107 Pac. 1108 (1910), and Cook v. Hudson, 110 Mont. 263, 103 Pac. (2d) 137 (1940). The court said, at 654, "We are not required to decide whether the demand must be made upon the State Engineer (see § § 75-2-1 and 75-2-9, N.M.S.A. 1953), the water master (see §§ 75-3-1 and 75-3-2, N.M.S.A. 1953), the upstream junior appropriators or one or more of them. Here, it is undisputed that no demand of any kind was made." 674 "Once the water passes the diversion point of the upstream appropriator, his opportunity to use the water is lost If the downstream appropriator does not use the water, the opportunity to use this water is wasted." 428 Pac. (2d) at 654, citing N. Mex. Const., art. XVI, § 3 which provides "Beneficial use shall be the basis, the measure and the limit of the right to use water." '"Johnston v. Little Horse Creek Irrigating Co., 13 Wyo. 208, 227-228, 79 Pac. 22 (1904);Manningv.Fife, 17 Utah 232, 238, 54 Pac. Ill (1898). |