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Show 628 EXERCISE OF THE APPROPRIATIVE RIGHT * * * a water right is a property right and inherent therein is the right to change the place of diversion, storage, or use of the water if the rights of other water users will not be injured thereby. Hence, the statutes above referred to are a recognition rather than a grant of the right to make such changes and they merely lay down a procedure whereby it may be determined whether such changes can be effected without injuriously affecting the rights of other users." Exclusiveness of statutory procedure.-In most Western States in which there are statutory procedures for making changes in points of diversion, these procedures generally are exclusive. For example, the Utah Supreme Court has held that no change in place of diversion, place of use, or purpose of use "can be initiated or accomplished under our law" without approval of the State administrator or of the district court on review.169 The Idaho Supreme Court held that any change in point of diversion of water appropriated under the water administration act requires an application to the State administrator.170 In a later case, in which all water rights of which the origin is given in the opinion were initiated long before the 1903 enactment of the Idaho water administration statute and in which such a change had been made without authority of the State agency, the supreme court observed that such change without such approval "does not forfeit the water right."171 Although the supreme court failed to note in this case the significant difference between statutory and nonstatutory appropriations in Idaho, the statutory procedure for appropriating water in this State is not the exclusive procedure.172 The current Idaho statutes, however, apparently provide that an application be made to the State administrator for changes in diversion points of water rights acquired under either the statutory or constitutional methods.173 In Colorado, the current statutory procedure apparently is not exclusive. A person desiring a determination with respect to a change in point of diversion may obtain a decree from the water judge or his designated referee.174 The Rule Respecting Change of Diversion as Announced by the Courts The general rule.-In a very early decision, the California Supreme Court approved an instruction by the trial court to the jury to the effect that a l69United States v. District Court, 121 Utah 1, 5-6, 238 Pac. (2d) 1132 (1951). Procedural questions both before the State administrator and before the district court on appeal: East Bench In. Co. v. Utah, 5 Utah (2d) 235, 300 Pac. (2d) 603 (1956). 110Washington State Sugar Co. v. Goodrich, 27 Idaho 26, 40-41, 147 Pac. 1073 (1915). The State agency was correct in denying an application for a change in point of diversion that would interfere with the rights of others. 171Harris v. Chapman, 51 Idaho 283, 297,5 Pac. (2d) 733 (1931). 172See, in chapter 7,! "Methods of Appropriating Water of Watercourses-Current Appropriation Procedures-Exclusiveness of the Statutory Procedure." '"Idaho Code Ann. §§ 42-108 and-222 (Supp. 1969). 174Colo. Rev. Stat. Ann. § § 148-21-3(11) and 148-21-18 to 148-21-21 (Supp. 1969). |