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Show 582 THE APPROPRIATIVE RIGHT the state engineer, the division engineer, and the water commissioner of district 41 gave up trying to force this early priority water down to 2 and 3 headgates in times of scarcity, when the decrees had to be enforced. After personally investigating the conditions on the river they saw the impractica- bility of trying to bring so small a stream over so large a river bed with so great a loss, for the purpose of delivering 18 feet of early priority water at the headgates of 2 and 3. They were convinced that it would be a benefit to everyone on the river, and an injury to none, to have this early water transferred into the Montrose canal.* * * Burden of Proof (1) The New Mexico Supreme Court adopted the rule that in contests over water rights, prior appropriators who complain of injury must prove that their use of the water is reasonable and beneficial, and the junior appropriator then must show that there is a surplus in the source of water supply from which water may be taken without injuring prior rights.705 Previously, this rule had been applied by the California Supreme Court as between riparian claimants and prior appropriators on the one hand and junior appropriators on the other.706 (2) In 1908, the Colorado Supreme Court took the view that:707 Where a senior seeks to enjoin a junior appropriator of water from diverting the same to the injury of the former, and the junior appropriator seeks to avoid the same upon the ground that if the use which he threatens to make of it is restrained, the owner of the senior right will derive no benefit, such a defense ought to be established by clear and satisfactory evidence. The infringement of a prior by the owner of a junior right constitutes a legal injury, and, before the junior can justify his acts of interference with the prior right upon the ground stated, a strong showing should be made.* * * (3) A facet of the question of upstream interference by junior appropriators pertains to the flow of upstream tributaries. In a later 1908 opinion, the Colorado Supreme Court held that: "The presumption is that the water of a tributary of a stream, less the evaporation, if not interfered with, will naturally reach the main stream either by surface or subterranean flow."708 Hence, the burden of establishing a contention that water proposed to be diverted from an upstream tributary would not in its natural course reach the headgate of a prior 105Pecos Valley Artesian Conservancy Dist. v. Peters, 52 N. Mex. 148, 152-154, 193 Pac. (2d) 418 (1948). 706 Tulare In. Dist. v. Lindsay-Strathmore In. Dist., 3 Cal. (2d) 489, 535, 45 Pac.(2d) 972 (1935). ™Akmosa Creek Canal Co. v. Nelson, 42 Colo. 140, 149-150, 93 Pac. 1112 (1908). The evidence on this point was conflicting, and the defense was not established to the satisfaction of the trial court. The supreme court held that the evidence was legally sufficient to uphold the finding of the trial court in favor of the downstream seniors. ™Petterson v. Payne, 43 Colo. 184, 186-187, 95 Pac. 301 (1908). |
