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Show 602 EXERCISE OF THE APPROPRIATIVE RIGHT point of discharge, or (b) diversion of water from a stream and substitution therefor of water taken from storage or another source. The first two functions, then, relate to uses of natural channels for conveying water from one place to another and thus avoiding costs of building artificial ditches over such distances. In the first case, the channel carries little or no natural streamflow; in the second case, the flow already there is substantial. The third function emphasizes substitution of water supplies, in the course of which conveyance from one point to another in the natural channel is either incidental or nonexistent. The three functions are discussed separately below. Inasmuch as to some extent they overlap, with a particular transaction involving more than one function, another section summarizing the separate State statutory provisions includes them all. Conveyance of Water The well settled rule.-The California Supreme Court stated in 1906 that:48 A person who is making an appropriation of water from a natural source or stream, is not bound to carry it to the place of use through a ditch or artificial conduit, nor through a ditch or canal cut especially for that purpose. He may make use of any natural or artificial channel, or natural depression, which he may find available and convenient for that purpose, so long as other persons interested in such conduit do not object, and his appropriation so made will, so far as such means of conducting the water is concerned, be as effectual as if he had carried it through a ditch or pipe-line made for that purpose and no other. * * * Responsibility for injury. -The person who takes advantage of this privilege is responsible for any injury resulting from the negligent or unlawful use of the channel.49 Such limited use of natural channels to the extent that nature has 4SLower Tule River Ditch Co. v. Angiola Water Co., 149 Cal. 496, 498, 86 Pac. 1081 (1906). Much earlier the court had said, "It would be a harsh rule * * * to require those engaged in these enterprises to construct an actual ditch along the whole route through which the waters were carried, and to refuse them the economy that nature occasionally afforded in the shape of a dry ravine, gulch, or canyon." Hoffman v. Stone, 7 Cal. 46, 49 (1857). Miller v. Wheeler, 54 Wash. 429, 436, 103 Pac. 641 (1909). One may adopt as a part of his ditch a depression or slough and thus save construction cost: Bennett v. Nourse, 22 Idaho 249, 255, 125 Pac. 1038 (1912); Barker v. Sonner, 135 Oreg. 75, 79, 80, 294 Pac. 1053 (1931); Clark v. North Cottonwood In. & Water Co., 79 Utah 425, 432, 11 Pac. (2d) 300 (1932). 49Blaine County Investment Co. v. Mays, 49 Idaho 766, 775-776, 291 Pac. 1055 (1930). Such use of the channel as to wash excessive quantities of soil into it and to cause winter overflow was enjoinable. One whose use causes overflow is liable in damages under the statute: Hagadone v. Dawson County Irr. Co., 136 Nebr. 258, 265, 285 N. W. 600 (1939). |
