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Show NATURAL CHANNELS AND RESERVOIRS 607 Where a clear case of benefit and noninjury is made, the power to execute such an exchange may be exercised.66 It has been held in Utah that an application to make such an exchange cannot be rejected by the State Engineer without a showing that vested rights will thereby be substantially impaired.67 Limitations on exercise.--In Oregon, the supreme court cautioned that: "While an exchange of waters is permitted, such exchange cannot be given the effect of changing priority rights to the extent that one holding an older priority before such exchange thereafter should be deemed no longer the owner of a senior priority but only that of a priority junior to the other party to such exchange."68 The foregoing statement accords with the rule that under no circumstances can an exchange of water be lawfully brought about where it would be to the detriment of prior users, or would result in depriving them of a property right.69 Thus, an attempt to acquire the right to turn appropriated water into the lowline canal of an irrigation company, and to pump an equivalent quantity out of its highline canal far higher than the point of entry, was rejected by the Idaho Supreme Court.70 Another proposed exchange was disapproved because of excessive deterioration of the quality of streamflow that would result.71 In a fairly early Colorado case, it was held that the question of exchanges of water between the same or different owners of ditches or reservoirs is a matter wholly foreign to the object of a statutory adjudication proceeding, and should be determined in some other appropriate proceeding brought for that specific purpose. But, said the court, no such system of exchange that necessarily converts a junior into a senior right can be sanctioned by a court of equity.72 In Utah, one who proposes to exercise this privilege must first have the formal approval of the State Engineer.73 conflicting views as to the effect of informal transfer upon priority of water right, see in chapter 8 "Property Characteristics-Conveyance of Title to Appropriate Right- Some Aspects of Conveyance of Appropriative Titles-Formalities of Conveyance." 66Board of Directors of Wilder In. Dist. v. Jorgensen, 64 Idaho 538, 546-550, 136 Pac. (2d) 461 (1943);King v.Ackroyd, 28 Colo. 488, 495, 66 Pac. 906 (1901). 61Salt Lake City v. Boundary Springs Water Users Assn., 2 Utah (2d) 141, 143-144, 270 Pac. (2d) 453 (1954). 6*Dry Gulch Ditch Co. v.Hutton, 170 Oreg. 656, 684, 133 Pac. (2d) 601 (1943). "Daniels v. Adair, 38 Idaho 130, 135, 220 Pac. 107 (1923). In this case, an unsuccessful attempt was made to enforce an acceptance of undecreed waters in exchange for decreed waters. 10Berg v. Twin Falls Canal Co., 36 Idaho 62, 64-66, 213 Pac. 694 (1922). Further mention is made of this case in discussing statutory constructions, below. llLittle Cottonwood Water Co. v. Kimball, 16 Utah 243, 252-253, 289 Pac. 116 (1930). "Windsor Res.& Canal Co. v. Lake Supply Ditch Co., 44 Colo. 214, 226, 98 Pac. 729 (1908). "Utah Code Ann. § 73-3-20 (1968). United States v. Caldwell, 64 Utah 490, 496-497, 231 Pac. 434 (1924). |