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Show CHANGE IN EXERCISE OF WATER RIGHT 631 183 appropriation. This is recognized as an essential component of the general rule.184 The Question of Resulting Injury Resulting injury bars a change of diversion. -That this is an essential condition of the right to make such a change in exercising one's water right is stated repeatedly in the decisions, as reflected in the foregoing discussion. Specifically, this right of change is not an absolute or vested right, but is only a conditional or qualified one. "No such change can be made if thereby the public, or any other appropriator, prior or subsequent, is adversely affected." Nor can a prior appropriator prevent a junior from appropriating any unappropriated water merely because the former in the future may wish to change his place of diversion. But when no material injury is in sight, a mere exchange of water violates no property rights.185 Hence, where a change caused or threatened to cause injury to others, the right to make the change was not sustained. This occurred in a very early Montana case in which a senior appropriator wished to transfer his point of diversion above the headgate of a junior appropriator,186 and likewise in a case decided decades later in Washington.187 In the Montana case, the junior appropriator had located his mill at a point where he could validly use the water previously appropriated but without consuming it, which conditions he was entitled to have continued. The change upstream in Washington was denied because it would result in depriving the lands through which the stream flowed of the benefits of subirrigation and of domestic use from springs fed by the stream. A Wyoming situation differed from the foregoing in that between the junior diversion and the downstream senior headgate the volume of water in the stream was substantially increased by springs-a benefit to the upstream junior. If the senior carried out his proposed change, the spring accretion would no longer be available so that the difference would have to be deducted from the junior's water supply-a material alteration of the conditions under which the latter made his appropriation, with a resulting substantial injury.188 The question of injury to lands dependent upon the continuance of return flow conditions which would result from changes in exercise of upstream rights has arisen in situations in which changes in either point of return or place of use-or both-were sought. A Colorado case involved both loss of return flow, in that the lands proposed to be irrigated were outside the drainage of the main stream and hence would contribute no return above the diversions of the lt3Sieber v. Frink, 7 Colo. 148, 154, 2 Pac. 901 (1884). 18*/« re Ahtanum Creek, 139 Wash. 84,100, 245 Pac. 758 (1926). The quantity of water covered by the original right is not affected. 185United'States v. Caldwell, 64 Utah 490,499-503, 231 Pac. 434 (1924). 18<Columbia Min. Co. v.Holter, 1 Mont. 296, 299-300 (1871). ^Haberman v. Sander, 166 Wash. 453,460-463,7 Pac. (2d) 563 (1932). 188Grao v. Sights, 22 Wyo. 19, 31,134 Pac. 269 (1913). |
