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Show CHANGE IN EXERCISE OF WATER RIGHT 623 On appeal-for which certiorari was substituted-the United States Supreme Court reversed the State court's decision. It was held that under the principle of an equitable apportionment of benefits between the States, the Colorado State decree could not confer upon the appropriator any rights in excess of Colorado's share of the streamflow, which was only an equitable portion thereof. The fact that the apportionment by means of rotation in periods of low streamflow was made by compact between the States with the consent of Congress made it binding to the same extent as would have been an apportionment by the Court itself. That such alternate rotating flow was then a more efficient use of the stream than if the flow had been steadily divided equally between the Colorado and New Mexico appropriators was conclusively established by the evidence. * * * The delegation to the State Engineers of the authority to determine when the waters should be so rotated was a matter of detail clearly within the constitutional power.148 CHANGE IN EXERCISE OF WATER RIGHT 149 Major Changes Questions of making substantial alterations in the exercise of one's appropriative right arose in the very early years of mining in the Sierra Nevada of California. This resulted from the "playing out" of mining claims and the necessity of either changing the point of diversion or place of use or purpose of use of the water-or of all three-to another mining location or to an agricultural use elsewhere or, if none of these possibilities were available, of abandoning the entire undertaking. Later changes came to embrace means of diversion, or use or time of use of the water such as from direct flow to storage. However, most of the activity in this field, and of legislation and case determination respecting it, centered in the three segments of point of diversion, place of use, and purpose of use of the appropriated water. State statutory provisions now in effect are summarized at the end of this topic. The exercise of the privilege is generally permitted by legislation and court decisions-but with important exceptions noted below-without loss of priority of the appropriative right, so long as the rights of others are not thereby impaired. It has been stated many times that the appropriator is entitled to have the stream conditions maintained substantially as they existed at the time he made his appropriation. (See, in chapter 8, "Elements of the Appropriative to provide for the equitable apportionment of waters in defiance of ownership and that it did not finally settle anything: Hinderlider v. La Plata River & Cherry Creek Ditch Co., 101 Colo. 73, 75, 70 Pac. (2d) 849 (1937). 141'Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U. S. 92,108-109 (1938). 149 A related but different subject, "Conveyance of Title to Appropriative Right," is discussed in chapter 8 under "Property Characteristics." |