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Show 632 EXERCISE OF THE APPROPRIATIVE RIGHT downstream irrigator, and harmful diminution in the flow of the main stream. The supreme court applied the oft-repeated rule that a junior appropriator of water has a vested right, as against his senior, to a continuation of the conditions on the stream as they existed at the time he made his appropriation.189 On the other hand, under the complicated circumstances of another Colorado case, the evidence showed that the change in point of diversion was a benefit to everyone concerned.190 To bar a proposed change of point of diversion of water, the injury that threatens to accrue must be to a water right191 and must be a readily determinable injury, not merely a possible injury that might result.192 Proof is indeed required that vested rights will not be impaired; but this is not carried to the point "where every remote but presently indeterminable vested right must be pinpointed" and a beneficial change denied because it could interfere with vested rights.193 In other words, it must be "not merely a fanciful injury but a real and actual injury."194 The action in a Nevada case centered solely in a construction of a decree of adjudication. An order authorizing a change in point of diversion and place of use was made long after the decree was issued and bore no relation to it. The supreme court felt that such suit was not a proper action in which to try the question of injury from the change. That matter, said the court, should be determined in a proper proceeding involving that specific issue, in which all parties whose rights might be affected could be given a change to be heard.195 In an Idaho case, a change of point of diversion and use, "whether regular and legal or not, was actually accomplished and thereafter used and enjoyed adversely."196 Burden of proof of injury. -The applicant for permission to change the point of diversion of water has the burden of establishing the necessary facts to make out a prima facie case that vested rights will not be thereby adversely affected.197 On the other hand, the party who affirmatively alleges injury as a result of the change of place of diversion thereby assumes the burden of proving such injury.198 The rule was thus restated in a 1954 case: "While the lt9Vogelv.Minnesota Canal & Res. Co., 47 Colo. 534, 537-542,107 Pac. 1108 (1910). 190Ironstone Ditch Co. v.Ashenfelter, 57 Colo. 31,45-46, 140 Pac. 177 (1914). 19iColthorpv.Mountain Home Irr. Dist., 66 Idaho 173, 180-182, 157 Pac. (2d) 1005 (1945). Plaintiff did not plead that the change would in any way injure the water or the decreed right to use the water on his land. For this and other reasons, it was held that the complaint failed to state a cause of action. ^Application ofBoyer, 73 Idaho 152,160-161, 248 Pac. (2d) 540 (1952). 193American Fork Irr. Co. v. Linke, 121 Utah 90, 94-95, 239 Pac. (2d) 188 (1951). 194Beecher v. Cassia Creek Irr. Co., 66 Idaho 1,1, 8,154 Pac. (2d) 507 (1944). 19SKent v. Smith, 62 Nev. 30, 39^0, 140 Pac. (2d) 357 (1943). 196Hillcrest Irr. Dist. v. Nampa & Meridian Irr. Dist., 57 Idaho 403, 412,66 Pac. (2d) 115 (1937). '"Tanner v. Humphreys, 87 Utah 164,171,48 Pac. (2d) 484 (1935). 19*Thrasher v. Mannix & Wilson, 95 Mont. 273, 276, 26 Pac. (2d) 370 (1933);Lokowich v.Helena, 46 Mont. 575, 577,129 Pac. 1063 (1913). |
