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Show CHANGE IN EXERCISE OF WATER RIGHT 639 A change of irrigated crops would be simply a substitution of one phase of irrigation agriculture to another and not a change in purpose of use. If it were, a farmer who practiced rotation of crops-which is widely done in irrigated areas-would be penalized to no purpose. Of course, a change that required more water-such as from alfalfa to rice-would call for an additional water supply not within the terms of the original appropriation. In an Oregon stream adjudication in which major changes were made from pasturing to raising hay, involving some reduction in use of water, a reverse effect was urged-that the testimony indicated abandonment of the right. The supreme court did not think it did.233 In a 1968 case, City of Westminster v. Church, the Colorado Supreme Court said: Plaintiffs' action against the City of Westminster is but one of several cases in this jurisdiction involving a municipality's purchase of agricultural water rights with the intention of devoting such rights to municipal and domestic purposes. The municipality, of course, has the legal right to devote its acquired water rights to municipal uses, provided that no injury accrues to the vested rights of other appropriators.... The principal dangers attending the municipality's altered use are that the city will attempt to use a continuous flow, where the city's grantor only used trie water for intermittent irrigation ... and that the municipality will enlarge its use of the water to the full extent of the decreed rights, regardless of historical usage.... To protect against the possibility of such extended use of the water rights, the courts will impose conditions upon the change of use and point of diversion sufficient to protect the rights of other appropriators. We have reviewed and upheld such restrictive conditions in numerous cases.234 The court also said: We hold that the trial court erred in ruling that the storage rights were limited to historical use. A reservoir right permits one filling of the reservoir per year.235 Change of use does not create a greater burden as to storage water. We believe the City of Westminster is entitled under its storage right decree to whatever water is available each year to fill that storage decree. Defendant City of Westminster could not enlarge upon its predecessors' use of the water rights by changing periodic direct flow for irrigation to a & Water Co. v. Beatty, 37 Mont. 342, 96 Pac. 727, 97 Pac. 838 (1908); milling to irrigation, Featherman v. Hennessy, 43 Mont. 310, 115 Pac. 983 (1911). 233In re Silvies River, 115 Oreg. 27,41, 237 Pac. 322 (1925). "It does not appear to have been the intention of the company to relinquish its rights to the use of these waters but rather to delay or partly suspend the application of the waters to a beneficial use." 234City of Westminster v. Church, 167 Colo. 1,445 Pac. (2d) 52, 58 (1968), citing earlier Colorado cases and Hutchins, W. A., "Selected Problems in the Law of Water Rights in the West," USDA Misc. Pub. 418 (1942), p. 384. 23sSee chapter 7 at note 644. |