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Show CHANGE IN EXERCISE OF WATER RIGHT 641 operation of a sawmill attempted to transfer his appropriation to others upstream for irrigation purposes. Here, the proposed change was injurious to downstream junior appropriators on two counts: (a) purpose of use, from nonconsumptive to consumptive; and (b) place of use, upstream above the diversions of holders of junior rights who had appropriated water for irrigation purposes, which if accomplished would have defeated their rights.240 A logical interpretation of the Montana nonadministration statute, the State supreme court believed, was to hold that the burden is on the party who insists that such change affected him adversely, to allege and to prove the facts; the restrictive words "If others are not thereby injured" being matters of defense. This is consonant with rules disclosed earlier under "Point of Diversion-The Question of Resulting Injury-Burden of proof of injury" that (a) under a nonadministration statute the party who affirmatively alleges injury has the burden of proving it; and (b) one who applies for permission to make a change under an administration statute has the burden of establishing the facts necessary to make out a prima facie case of noninjury. In the instant case, the court explained that the statute does not apply or by implication declare that a change, even if it affects others adversely, shall impair the appropriative right in any respect; what it might do if injurious is to give rise to an action for damages or for an injunction.241 A person who is not injured by a change in purpose of use is in no position to complain. Thus, a change from mining to agriculture does not impair the rights of others for use of the water on upstream lands.242 Nor may one be heard to complain of a change in use of a water right in which he had no legal interest.243 Summary of Statutory Authorizations and Restrictions Following is a summary of the salient features of statutory authorizations to make changes in point of diversion, place of use, and purpose of use of appropriated water, and of restrictions thereon: Alaska.- Place and purpose of use. State administration approval re- quired. Instrument of change must be filed with State administrative agency and recorded in the county of the appropriation.244 Arizona.-(1) Place of use. For prescribed uses only, without loss of priority, with State administration approval, no injury to other rights, and, ""Washington State Sugar Co. v. Goodrich, 27 Idaho 26,44,147 Pac. 1073 (1915). i4iHansen v. Larsen, 44 Mont. 350, 353, 120 Pac. 229 (1911). "2Handv. Carlson, 138 Cal. App. 202, 208, 31 Pac. (2d) 1084 (1934). 243Campbell v. Goldfield Consolidated Water Co., 36 Nev. 458,462, 136 Pac. 976 (1913). The contested water supply was a spring, the source of a natural watercourse, the spring being located allegedly within the boundaries of a mining claim owned by the contestor. Under Nevada law, he could have no right in such a spring otherwise than through appropriation; and he had made no claim of appropriation. 344Alaska Stat. § 46.15.160(b) (Supp. 1966). 450-486 O - 72 - 43 |