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Show 608 EXERCISE OF THE APPROPRIATIVE RIGHT Burden of proof.-The person who seeks to exercise the privilege of exchanging water has the general burden of showing that no impairment of vested rights will result from the change.74 The earlier comments on burden of proof under "Commingling," would be either directly or impliedly applicable here. Substitution of prior appropriator's diversion.- This feature is stated as follows:75 An appropriator of water from a running stream is entitled to have it flow down the natural channel to his point of diversion undiminished in quantity and quality or, if diverted from the natural channel by other appropriators for their conveneince, to have it delivered to him at available points by other means provided by subsequent appropriators and at their expense. This seems to be a rule of general accommodation and utility and has been universally followed by the courts when applied to surface streams. * * * In adhering to this rule in several cases, the Utah Supreme Court emphasized that changes in established means of diversion of prior appropriators by junior claimants must be at the expense of the latter,76 and that the substitute water "be returned into the stream or into the ditch or canal of the prior appropriator, if that is done at a point where the prior appropriator can make full use of the water, and without injury or damage to him."77 Some statutory constructions. -Herein are judicial comments and construc- tions of several of the State statutes relating to uses of natural channels that are summarized and cited later under "Summary of State Statutory Provisions". (1) Colorado. The plan of exchange of water authorized by statute was operated extensively in Cache la Poudre Valley. This plan, which embraced a "Salt Lake City v. Boundary Springs Water Users Assn., 2 Utah (2d) 141, 143-144, 270 Pac. (2d) 453 (1954). nsPima Farms Co. v. Proctor, 30 Ariz. 96, 106-107, 245 Pac. 369 (1926). For administrative complications foreseen by the court, seeMaricopa County M.W.C. Dist. v. Southwest Cotton Co., 39 Ariz. 367, 370, 7 Pac. (2d) 254 (1932). Substitution of pipeline for headgates on a heavily losing channel by agreement of the parties: Basinger v. Taylor, 30 Idaho 289, 293, 164 Pac. 522 (1917), 36 Idaho 591, 596, 211 Pac. 1085 (1922). ""Salt Lake City v. Gardner, 39 Utah 30, 4547, 114 Pac. 147 (1911); Big Cottonwood Tanner Ditch Co. v. Shurtliff, 56 Utah 196, 204-205,189 Pac. 587 (1919). "United States v. Caldwell, 64 Utah 490, 497-498, 231 Pac. 434 (1924). A decree authorizing a power company entitled, for the purpose of operating its power plant to a secondary use of the water of a river, to take the water from the river above a prior appropriator's point of diversion and to convey it down to its powerhouse, and then to flume it into the canal of the former appropriator, does not destroy that part of the canal above the point where such water is thus discharged into it, nor take from such prior appropriator the right to control the flow of its own water; the prior appropriator having the right to convey the water which such power company does not use, and it also having the right to control its canal: Salt Lake City v. Salt City Water & Elec. Power Co., 24 Utah 249, 266, 67 Pac. 672 (1902), 25 Utah 456, 71 Pac. 1069 (1903). |
