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Show 626 EXERCISE OF THE APPROPRIATIVE RIGHT use of the original right.156 In New Mexico, no such change shall be allowed to the detriment of the rights of others having valid and existing rights in the stream system and it shall be subject to the rules and regulations of the State Engineer.157 The condition in the Utah statute centers in uncompensated injury; that is, changes are not to be rejected for the sole reason that they would impair vested rights of others, for if otherwise proper they may be approved as to part of the water involved, or on condition that the conflicting rights be acquired.158 Not many of the statutes specifically mention the item that a change in point of diversion, properly made, carries with it the priority of the right in question. However, it is a widely recognized judicial rule, as noted in the next subtopic. Judicial Decisions Independent of statutes.- As previously noted, in Alaska, Arizona, and Texas there is no express statutory authority for changes in point of diversion of appropriative rights. In Alaska, the supreme court has recognized that the prior appropriator may change the point of diversion or place of use of the water to which he has a right, without affecting the priority of his right, so long as such change does not prejudice the rights of later appropriators.159 The Arizona Supreme Court has sanctioned such changes by holding that if occasioned by abandonment of the original ditch and substitution of another, they were not evidence of intent to abandon the water rights and did not affect their validity.160 This court also stated that the means of appropriation may be 156IdahoCode Ann. § 42-108 and -222 (Supp. 1969). 1S7N. Mex. Stat. Ann. §§75-5-3 and 75-5-23 (1968). Section 75-5-23.1 (Supp. 1971) includes a procedure for granting temporary approval of changes in points of diversion or storage or in use of water in emergency situations. In W. S. Ranch Co. v. Kaiser Steel Corp., 79 N. Mex. 65, 439 Pac. (2d) 714, 718 (1968), the court noted that the State Engineer, having determined that a change could be made without detriment to existing rights, in granting the change nevertheless took the precautionary measure of imposing conditions that limited the amount of water to be diverted, required measurement and recording of water diversions and return flow, protected certain junior appropriators, and generally prohibited any detriment to existing rights. The court also noted that the appropriator making the change could take no more water than would have been available at the old point of diversion as provided in an adjudication decree. 1S8Utah Rev. Code Ann. § 73-3-3 (1968). Either permanent or temporary changes are defined as changes for definite periods of no more than one year. Somewhat different procedures, including requirements regarding notice to others, are specified for temporary changes. lS9Eglar v. Baker, 4 Alaska 142, 144-145 (1910); Miocene Ditch Co. v. Campion Min. & Trading Co., 3 Alaska 572, 584 (1908). i60Slosser v. Salt River Valley Canal Co., 7 Ariz. 376, 394-395, 65 Pac. 332 (1901); Gould v. Maricopa Canal Co., 8 Ariz. 429, 448, 76 Pac. 598 (1904). See Miller v. |
