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Show 596 EXERCISE OF THE APPROPRIATIVE RIGHT natural overflow in crop irrigation came to be recognized as wasteful. It was no longer to be regarded as a right, but as a privilege to be tolerated only while no injury resulted to others, no deprivation of the use by junior appropriators of water that simply served the purpose of lifting the flood flow over the banks for the benefit of prior appropriative overflow rights, and to be changed to a control system within a reasonable time.26 After reaffirming the previously recognized rule that "the law does not vainly require" artificial works if the overflow system is adequate, the supreme court insisted that "in most cases the building of some kind of an irrigation system" is eventually requisite "to effect an economical beneficial use of such water and prevent waste" and that this "should be accomplished within a reasonable time as circumstances permit and necessities require."27 And in 1959, the Oregon Supreme Court held squarely that the time had come when the method of diversion of water by way of natural overflow in Warner Valley was a privilege only, and that it could not be insisted upon if it interfered with appropriation by others of the waters for a beneficial use.28 Scenic beauty and other purposes.-A controversy in the Federal courts early in the present century involved relative appropriative rights to the use of a stream which flowed through a canyon several miles from Colorado Springs, Colorado. The canyon was about three-fourths of a mile long and very deep. Its floor and sides were covered with an exceptionally luxuriant growth of trees, shrubbery, and flowers produced by streamflow through the canyon and the mist and spray from its falls, which were almost continuous throughout the canyon. At this locality, complainant and its predecessors had owned and operated a summer resort for more than 20 years. Defendant proposed to divert water away from the stream above the canyon for the generation of electricity. The trial court held that maintenance of vegetation in the canyon by the flow and seepage of the stream and the mist and spray of its falls constituted a beneficial use of such waters, and had been appropriated for the purposes of serving complainant's properties in the manner indicated. The court relied on the Colorado rule that an appropriator was not required to construct artificial waterways through which water might be taken from the stream.29 26In re Willow Creek, 74 Oreg. 592, 621, 622, 144 Pac. 505 (1914), 146 Pac. 475 (1915). 21In re Silvies River, 115 Oreg. 27, 66, 237 Pac. 322 (1925). "Warner Valley Stock Co. v. Lynch, 215 Oreg. 523, 536-541, 336 Pac. (2d) 884 (1959). This does not mean, in the cited case, that these appropriators had no vested right to use the quantity of water they had appropriated from Hart Lake. They no longer had the privilege of a natural overflow method of diversion; but they were entitled to pump their appropriated quantity of water provided it would overflow if no water (other than the water appropriated under a prior right) were withdrawn from the lake or prevented from reaching it. "Cascade Town Co. v. Empire Water <£ Power Co., 181 Fed. 1011, 1016-1019 (C.C.D. Colo. 1910), reversed, 205 Fed. 123 (8th Cir. 1913). |