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Show 580 THE APPROPRIATIVE RIGHT Oregon were removed during the period of water shortage, the streamflow would be quickly absorbed and lost in the gravel underlying the channel leading across the stateline into Washington.697 "To restrain the diversion at the bridge," said the United States Supreme Court, "would bring distress and even ruin to a long-established settlement of tillers of the soil for no other or better purpose than to vindicate a barren right. This is not the high equity that moves the conscience of the court in giving judgment between states." The Court expressed its conclusion thus:698 The case comes down to this: The court is asked upon uncertain evidence of prior right and still more uncertain evidence of damage to destroy possessory interests enjoyed without challenge for over half a century. In such circumstances, an injunction would not issue, if the contest were between private parties, at odds about a boundary. Still less will it issue here in a contest between states, a contest to be dealt with in the large and ample way that alone becomes the dignity of the litigants concerned. Accordingly, as the Montana Supreme Court observed in 1892, it is not the law that when none of the water in controversy could, if left in the stream, reach the prior appropriator's point of diversion at a distant point below, the junior upstream appropriator should be restrained from using the water on the sole ground that the downstream appropriation is prior in right. But, cautioned the court, these observations should not be so misconstrued or misapplied as to allow wrongful diversion or diminution of a stream on the pretense that the water would be lost, unless that possible result can be clearly substantiated.699 But downstream appropriator entitled to a usable quantity.-However, the prior appropriator is not to be penalized by junior diversions upstream if a useful or usable quantity could reach his headgate in its natural course.700 Quantitatively, if 45 inches of water were flowing at the upstream diversion and only 1 inch would reach the downstream diversion, 15 miles below, if the 45 inches were left in the stream, that residue of 1 inch would be of little or no use to the downstream irrigator.701 Furthermore, when a large quantity of water will be rendered useless and a large water surface area laid open to evaporation upstream in the complicated process of getting water from one 697 Washington v. Oregon, 297 U. S. 517, 522-523 (1936). In Mitchell In. Dist. v. Whiting, 59 Wyo. 52, 77-79, 136 Pac. (2d) 502 (1943), certiorari denied, 322 U. S. 727 (1944), the Wyoming Supreme Court quoted from this language of the United States Supreme Court and applied the Court's ruling to an analogous situation in the case at bar. 698 Washington v. Oregon, 297 U. S. 512, 529 (1936). 699Raymond v. Wimsette, 12 Mont. 551, 560-561, 31 Pac. 537 (1892). 700 Union Mill & Min. Co. v. Dangberg, 81 Fed. 73, 119 (C. C. D. Nev. 1897); Tonkin v. Winzell, 27 Nev. 88, 96-97, 73 Pac. 593 (1903); Dameron Valley Res. & Canal Co. v. Bleak, 61 Utah 230, 234-235, 211 Pac. 974 (1922). 701 Raymond v. Wimsette, 12 Mont. 551, 560-561, 31 Pac. 537 (1892). |
