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Show 578 THE APPROPRIATIVE RIGHT water from a stream at a point above a prior appropriator's place of diversion and to turn water from the same stream, or from a different stream, if equal in quantity and quality, into the ditch of the prior appropriator if done at a point where the latter can make full use of the water and without injury to him, and at the expense of the junior appropriator.687 This aspect of the junior appropriator's right merges into the topic "Exchange or Substitution of Water," which is developed in chapter 9 under "Natural Channels and Reservoirs-Use of Natural Channel." Reciprocal Rights and Obligations of Appropriators No Encroachment by Either Party Early in the development of the appropriation doctrine in California, the supreme court said that: "When the right has once vested in the defendants, the plaintiff is no more justified, by extending its own claim, or changing the means of appropriation, in interfering with the full enjoyment of the right vested in the defendants, than the defendants would be, in encroaching upon the prior rights of the plaintiff."688 A half-century later, a California district court of appeal summarized these reciprocal rights thus: Of two or more appropriators on the same stream, each must so use his right as not to interfere materially with the others, the matter of superiority by reason of priority being of course considered. The excessive use of any right to the injury of others is against public policy. "The mere inconvenience, or even the matter of extra expense, within limits which are not unreasonable, to which a prior user may be subjected, will not avail to prevent a subsequent appropriator from utilizing his right. There must be a substantial as distinguished from a mere technical or abstract damage to the right of the prior appropriator by the exercise by the subsequent appropriator of his right to entitle the former to relief against any attempt of the latter to utilize his right."689 Relative Locations on Stream In an early decision, the California Supreme Court had occasion to re declare the principle that as against subsequent locators below the diversion point of the first appropriator, the latter had a superior right enforceable at law, and to state that the principle should be equally applicable whether subsequent '"United States v. Caldwell, 64 Utah 490, 497-498, 231 Pac. 434 (1924); Maricopa County M. W. C. Dist. v. Southwest Cotton Co., 39 Ariz. 367, 370, 7 Pac. (2d) 254 (1932); Reno v. Richards, 32 Idaho 1, 5, 178 Pac. 81 (1918). 688Nevada Water Co. v. Powell, 34 Cal. 109, 119 (1867). To the same effect: Proctor v. Jennings, 6 Nev. 83, 87-88 (1870). 689 Waterford In. Dist. v. Turlock In. Dist., 50 Cal. App. 213, 221, 194 Pac. 757 (1920). In Peabody v. Vallejo, 2 Cal. (2d) 351, 376, 40 Pac. (2d) 486 (1935), the California Supreme Court quoted the first sentence of the above quotation, with the words "within limits which are not unreasonable" italicized, and said that the rule with its appropriate limitations in the italicized words was correct as so stated. |
