| OCR Text |
Show 606 EXERCISE OF THE APPROPRIATIVE RIGHT Exchange or Substitution of Water Interrelationships.-This topic is closely related to (a) use of a natural channel for conveyance of water and (b) commingling and recapture of water. Acts of exchange or substitution may involve one or both of these previous topics, or neither of them. For example: (a) Acts of discharging impounded water or direct flow into a stream, and rediverting an equivalent quantity of water at a distant point below, involves them both. Although there is no pretense-or even a legal fiction-that the same particles of water are recaptured, the processes of using the channel for transportation, for commingling and recapture, and for exchange of stored or direct flow waters for waters already in the stream are all carried out. This is the case, regardless of whether the downstream diversion is made at the same time as the upstream discharge into the channel, or at an earlier or a later date. (b) On the other hand, the acts of discharging into a stream either stored water or direct flow from another source, and of diverting comparable quantities at a higher point or from an upstream tributary, involve neither channel transportation nor commingling and rediversion of this artificial increment. The principle. -A good abridgment of this long recognized principle appears in a decision of the Oregon Supreme Court in 1943:64 A subsequent appropriator may assert the right to take the waters of the stream from which the prior appropriation has been made and give the prior appropriator in return therefor other water from a different source, but of like quantity and quality delivered at such a place that the prior appropriator can make full use thereof without being injured in any way.* * * * * * the substitution of impounded water in the same quantity and of the same quality for water normally flowing in the natural stream does not constitute a trespass or infringement upon or a restriction of the rights of lower appropriators. Nor does such an exchange or substitution of water constitute an abandonment of the water rights involved. "Abandonment is a matter of intention."6S "Dry Gulch Ditch Co. v. Hutton, 170 Oreg. 656, 675, 681, 133 Pac. (2d) 601 (1943). Exchange of water in artificial ditch for right-of-way: Methow Cattle Co. v. Williams, 64 Wash. 457, 460, 117 Pac. 239 (1911). Water exchange agreements between Salt Lake City and mutual irrigation companies: Baird v. Upper Canal Irr. Co., 70 Utah 57, 257 Pac. 1060 (1927); Salt Lake City v. McFarland, 1 Utah (2d) 257, 265 Pac. (2d) 626 (1954). "Middle Creek Ditch Co. v. Henry, 15 Mont. 558, 560-565, 572-581, 39 Pac. 1054 (1895). In this case, the exchange contract was in writing, but was not acknowledged or recorded. The court held that by conveying, by an instrument in writing sufficient for the purpose, the use of water for a valuable consideration, the acts of the parties indicated an intention precisely opposite to that of abandonment. For some one-time |
