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Show NATURAL CHANNELS AND RESERVOIRS 605 it concerns the public as well as private interests, and it must be strictly complied with.58 The Utah statute authorizing commingling and recovery or substitution of water requires prior written application to and approval of the State Engineer.5 9 The supreme court holds that one who seeks to take advantage of the statute by allowing surplus or waste water to enter a slough, but without complying with the statutory provisions, loses dominion over such water.60 A water appropriator who makes use of a natural channel for conveyance of water is responsible for any injury resulting from negligent or unlawful use, such as causing overflow above the accustomed high-water level.61 Burden of proof. -Early in the history of the appropriation doctrine in the West, it was established that the burden of proof is on the party who exercises the privilege of commingling, to show that he is not taking out more water than the quantity that belongs to him.62 In one of its earliest mining decisions, the California Supreme Court recognized the difficulty of determining with accuracy the quantity of water the parties are entitled to divert after commingling, and stated that:63 If exact justice cannot be obtained, an approximation to it must be sought, care being taken that no injury is done to the innocent party. The burden of proof rests with the party causing the mixture. He must show clearly to what portion he is entitled. He can claim only such portion as is established by decisive proof. The enforcement of his right must leave the opposite party in the use of the full quantity to which he was originally entitled. When commingling practices are carried out under supervision of a watermaster, and gains and losses in transit are determined by the administra- tive authority as a result of reliable measurements, the determination of what the opposing parties are entitled to is reduced to an impartial, scientific basis. "Little Cottonwood Water Co. v. Kimball, 76 Utah 243, 252-253, 289 Pac. 116 (1930). The supreme court affirmed a trial court order directing rejection by the State Engineer of an application to commingle water, on the ground that the inferior quality of the water proposed to be turned into a creek would render the entire stream below the place of entry unfit for domestic and culinary purposes. The scheme for supplying potable water for domestic use through a pipeline to all persons entitled thereto from the stream "does not meet the requirements of the statute" that the original water in the stream "must not be deteriorated in quality * * * for the purpose used." "Utah Code Ann. § 73-3-20 (1968). United States v. Caldwell, 64 Utah 490, 496-497, 231 Pac. 434 (1924). 60Lasson v. Seely, 120 Utah 679, 687, 238 Pac. (2d) 418 (1951). 61Blaine County Investment Co. v.Mays, 49 Idaho 766, 775-776, 291 Pac. 1055 (1930); Hagadone v. Dawson County In. Co., 136 Nebr. 258, 265, 285 N. W. 600 (1939). 62Herriman In. Co. v. Keel, 25 Utah 96, 115, 69 Pac. 719 (1902). " * * * it is an elementary principle, firmly established, that one who, without consent, intentionally confounds his property with the property of a stranger, though they be of the same kind, will lose the whole unless he can prove the true quantity belonging to himself." Herrimanln. Co. v. Butterfield Min. Co., 19 Utah 453, 464, 57 Pac. 537 (1899). 63Butte Canal & Ditch Co. v. Vaughn, 11 Cal. 143, 152-153 (1858). |