| OCR Text |
Show 624 EXERCISE OF THE APPROPRIATIVE RIGHT Right" and "Relative Rights of Senior and Junior Appropriators".) This applies equally to senior and junior appropriators. Not only is the senior appropriator entitled to protection against any impairment of his right by those who come later; the junior appropriator initiates his right in the belief that the water previously appropriated by others will continue to be used as it is then being used. Therefore, the junior has a vested right, as against the senior, to insist that such conditions be not changed to the detriment of his own right. Some examples of injury against which protection is afforded are noted below. Generally, changes in the point of diversion, place of use, or character of use of water, if made in conformity with any statutory requirements that may exist, and which do not impair the rights of others, do not affect the validity of the appropriation in question, nor do they forfeit or work an abandonment of the water right or alter the priority of the appropriation. The use simply continues with all its rights and obligations under the changed conditions. The changes in exercise of appropriative rights do not contemplate or countenance any increase in the quantity of water diverted under the original exercise of the right.150 In no event would an increase in the appropriated water supply be authorized solely by virtue of a change in point of diversion, place of use, or purpose of use of water. This is for the elemental reason that an enlargement in the quantity of water appropriated can be made only by acquiring a new appropriative right to the additional quantity, which new right is junior in priority to all other rights-by whomsoever initiated-intervening between the dates of the original appropriation and of this additional one. (See, in chapter 7, "Methods of Appropriating Water of Watercourses-Priority of Appropria- tion-Succeeding Appropriations by First User." Gradual development, if within the appropriator's original intent and carried out diligently, is not an enlargement.)151 150On the contrary, the New Mexico statute placing restrictions on the right to change the point of diversion do not apply to community acequias established and in operation before the water rights statute of 1907 went into effect, "Provided that by such change no increase in the amount of water appropriated shall be made beyond the amount to which the acequia was formerly entitled." N. Mex. Stat. Ann. § 75-14-60 (1968). 151 Rigidities of the appropriation doctrine respecting appurtenance of water rights, difficulties in effectuating transfers of the place or purpose of use or of diversion points, and effects upon the water economy, have been dealt with in a number of articles, papers, or reports. Contrasting views are expressed in Gaffney, M. M., "Diseconomies Inherent in Western Water Laws: A California Case Study," in "Water and Range Resources and Economic Development of the West," Conf. Proc, Comm. on Econ. of Water Resources Devel. and Comm. on Econ. of Range Use and Devel., of the Western Agric. Econ. Research Council, Report No. 9, p. 55 (Tucson 1961); Trelease, F. J., "Water Law and Economic Transfers of Water," 43 Jour, of Farm Econ. 1147 (1961); Gaffney, M. M., "Water Law and Economic Transfers of Water: A Reply," 44 Jour, of Farm Econ. 427 (1962); Trelease, F. J., "Water Law and Economic Transfers of Water: A Rejoinder," Id. at 435. Some other publications |
