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Show EFFICIENCY OF PRACTICES 645 water litigation are deemed to be questions of fact for the reasonable determination of the trial court."263 Diversion, Conveyance, and Distribution of Water The prior appropriator must use reasonable diligence, reasonable care, and reasonably efficient applicances in making his diversion and transporting the water to the place of intended use in order that the surplus water may not be rendered unavailable to those who are entitled to it.264 One whose means of diversion becomes insufficient, because of its inherent defects, when the surplus is diverted upstream must take the usual and reasonable measures to perfect such means. There is no requirement of absolute efficiency with respect to artificial appliances.265 Nor is it necessary that one should divert and distribute water according to the most scientific method known.266 But the appropriator is bound to the exercise of reasonable care in the construction and maintenance of his appliances to the end that others be not unnecessarily deprived of the use of the water.267 In a 1922 Idaho case, the Idaho Supreme Court said that an appropriator who had effected a saving of a 10 percent loss of water by changing the point of diversion has materially augmented the amount of water available from the stream for beneficial use and should have a prior right to its use. This is not the case with the saving of 50 per cent, which is brought about by eliminating the loss from the old Farmers' ditch____The loss of 50 per cent, in the Farmers' ditch between the old point of diversion of the individual appellants and the place where they applied the water on their land was not a reasonable loss. The farmers could not reasonably have been expected to build a cement lined ditch at the cost of $100,000, as suggested by one of the witnesses. But they could have been reasonably expected to prevent the water spreading out at several places____3ii 263Mt. Shasta Power Corp. v. McArthur, 109 Cal. App. 171, 183, 292 Pac. 549 (1930, hearing denied by supreme court). 264Natoma Water & Min. Co. v. Hancock, 101 Cal. 42, 51-52, 31 Pac. 112 (1892), 35 Pac. 334 (l%94); Kent v. Smith, 62 Nev. 30, 39, 140 Pac. (2d) 357 (l943);Tudorv.Jaca, 178 Oreg. 126, 141-143, 164 Pac. (2d)680 (1945), 165 Pac. (2d) 770 (1946);Hardy v. Beaver County Irr. Co., 65 Utah 28,41, 234 Pac. 524 (1924). 265State ex rel. Crowley v. District Court, 108 Mont. 89, 97-98, 88 Pac. (2d) 23 (1939). 266Tulare Irr. Dist. \. Lindsay-Strathmore Irr. Dist., 3 Cal. (2d)489, 547,45 Pac. (2d) 972 (1935); Worden v. Alexander, 108 Mont. 208, 215, 90 Pac. (2d) 160 (1939). 261Dern v. Tanner, 60 Fed. (2d) 626, 628 (D. Mont. 1932). Hence, if a less wasteful method can be devised, even at additional expense, "an appropriator has no right to run water into a swamp and cause the loss of two-thirds of a stream simply because he is following lines of least resistance." Doherty v. Pratt, 34 Nev. 343, 348,124 Pac. 574 (1912). 26*Basingerv. Taylor, 36 Idaho 591, 597, 211 Pac. 1085 (1922). |
