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Show 646 EXERCISE OF THE APPROPRIATIVE RIGHT The Arizona court of appeals held in 1966 that appropriators who had conserved water by improvement and concrete lining of their irrigation ditches did not have the right to use the saved water on adjacent lands for which they held no appropriative rights without applying for the right to do so from the State Land Department. The court said: Certainly any effort by users of water in Arizona tending toward conservation and more economical use of water is to be highly commended. However, commendable practices do not in themselves create legal rights. The appellees may only appropriate the amount of water from the Verde River as may be beneficially used in any given year upon the land to which the water is appurtenant even though this amount may be less than the maximum amount of their appropriation. . . . [I]n those years when water in excess of that which appellees may beneficially use upon the appurtenant land to which their water right attaches, all water which may flow to lower and subordinate owners of water rights is no longer of concern to appellees. Any practice, whether through water-saving procedures or otherwise, whereby appellees may in fact reduce the quantity of water actually taken inures to the benefit of other water users and neither creates a right to use the waters saved as a marketable commodity nor the right to apply same to adjacent property having no appurtenant water rights.269 The court noted that Arizona legislation had placed matters pertaining to application of waters to new lands or changes in use of waters under the jurisdiction of the State Land Department with certain prescribed standards to be followed. With Particular Reference to Diversions of Water The Utah Supreme Court held that it was the settled law of the jurisdiction that a junior appropriator could divert water from a stream at a point above the prior appropriator's diversion and return it into the latter's ditch if undiminished in quantity and unaffected in quality,270 at his own expense.271 But he has no right to cause frequent and substantial fluctuations in the streamflow to suit his own purposes, the result of which is to seriously impair the usefulness of the flow to prior appropriators downstream.272 269Salt River Valley Water Users' Ass'n v. Kovacovich, 3 Ariz. App. 28, 411 Pac. (2d) 201, 202-204 (1966), discussed in Dickenson, R. W., "Installation of Water Saving Devices as a Means of Enlarging an Appropriative Right to Use of Water," 2 Natural Resource Lawyer 272, 274 (1969); Case Note, 46 Oreg. Law Rev. 243 (1967). See chapter 18 regarding rights to use salvaged and other kinds of waters, which deals with related although different matters. 21aUnited States v. Caldwell, 64 Utah 490,497-498, 231 Pac. 434 (1924). "'Big Cottonwood Tanner Ditch Co. v. Shurtliff, 56 Utah 196, 204-205, 189 Pac. 587 (1919). "2Logan, Hyde Park & Smithfield Canal Co. v. Logan, 72 Utah 221, 224-226, 269 Pac. 776 (1928). |