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Show 640 EXERCISE OF THE APPROPRIATIVE RIGHT continuous flow for storage. Such a change would necessarily increase the ultimate consumption from the stream to the detriment of other appropria- tors. The district court ascertained the extent of historical usage of de- fendant's water rights during the period 1938 to 1959 on the basis of the state engineer's certified records. This data established that in this twenty-year period, average annual diversions were 306 acre-feet under the direct flow decrees and 123 acre-feet under the storage decrees. To eliminate fluctuations in availability from year to year, the court devised a ten-year moving average of 3060 acre-feet and 1230 acre-feet for the defendant's direct flow and storage rights respectively. Defendant main- tained adequate storage facilities for these diversions, so that the direct flow rights could be transformed into storage rights, with no greater quantity being diverted in any ten-year period for storage purposes than had been historically diverted for direct flow irrigation. Except as to the storage rights previously discussed, in light of the circumstances of the case, this method of ascertaining due restraints on defendant's altered use of the water rights is eminently reasonable.236 An obvious injury to downstream appropriators from upstream change of purpose of use may result from change of a nonconsumptive to a consumptive use. Thus, a change from a use in which none of the water is consumed, as for power purposes, to one in which nearly all is consumed, as in case of irrigation, is apt to affect others injuriously.237 Hence, a milling company, which had no appropriation for any purpose except operating the mill, could not change the use to irrigation of lands controlled by itself or of upstream lands of others to the detriment of a downstream appropriator who depended upon the stream after it passed the mill.238 The same result may flow from a change from mining to irrigation.239 In one instance, the holder of a prior appropriation for 236The court added that: "We also note that at the times free water is available in the river, the restrictions would not apply since all appropriators may then divert beyond the measure of their decree without infringing the rights of other persons." 445 Pac. (2d) at 58-59. In regard to effects of changing the water use upon direct flow rights, the court quoted and discussed an earlier case that involved a proceeding to change a diversion point by a city that had acquired decreed water rights formerly used for irrigation. Farmers Highline Canal & Reservoir Co. v. Golden, 129 Colo. 575, 584, 272 Pac. (2d) 629, 634 (1954), discussed in note 178 supra. 23nBroughton v. Stricklin, 146 Oreg. 259, 270, 28 Pac. (2d) 219 (1933), 30 Pac. (2d) 332 (1934). ""Cache la Poudre Res. Co. v. Water Supply & Storage Co., 25 Colo. 161, 169-171, 53 Pac. 331 (1898); Hutchinson v. Stricklin, 146 Oreg. 285, 296-297, 300, 28 Pac. (2d) 225 (1933). 239Head v. Hale, 38 Mont. 302, 307-308, 100 Pac. 222 (1909). An equitable adjustment was made in Featherman v. Hennessy, 43 Mont. 310, 316-317, 115 Pac. 983 (1911). |