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Show 648 EXERCISE OF THE APPROPRIATIVE RIGHT prior appropriators found themselves penalized when they finally attempted to correct a long-time wastage of water.279 The ditch owner has the duty of exercising ordinary care in keeping the conduit clean and free from debris.280 He has the right, as against the owner of the servient estate, to recondition the ditch by making reasonable improve- ments for the purpose of increasing its efficiency.281 A long drawn-out lawsuit in San Joaquin Valley, California, culminated after many years in a decision rendered by the California Supreme Court, in which a long opinion was written and many important matters were covered.282 Appropriators had been conveying water in earth ditches for long periods of time-some of them for more than 50 years-and it appeared that in many instances conveyance losses amounted to 40 to 45 percent. Insofar as the instant topic is concerned, the supreme court held that these appropriators as a matter of law had the right to divert and distribute the water by means of earth ditches and could not be compelled to construct impervious conduits in order that seepage water might be made available to a junior appropriator. The supreme court appeared to be sympathetic toward any feasible plan of affecting a substantial saving of water at a reasonable cost, to be apportioned as justice might require, but refused to hold that the prior appropriators' methods were wasteful. It was stated that: "if appellant sincerely desires to save some of the conveyance loss, on the retrial, it can offer to defray the expenses of straightening some of the major ditches, or of building, in some cases, impervious ditches." The court summarized the California rule as to efficiency of appliances and practices in diverting and distributing water by declaring that in determining what is a reasonable quantity for beneficial uses the State policy requires "within reasonable limits" the highest duty from the public waters, but that on the contrary the appropriator is not restricted to the most scientific method known.383 "He is entitled to make a reasonable use of the water according to the general custom of the locality, so long as the custom dees net involve unnecessary waste."384 2>J9Dannenbrink v. Burger, 23 Cal. App. 587, 593-595, 138 Pac. 751 (1913, hearing denied by supreme court). For a long time, these parties diverted water by means of an imperfect dam and flume through which substantial quantities of water were wasted into the stream. When they eventually repaired and replaced the structures, they were held to be not thereby entitled to withhold from downstream appropriators who, for a period of about 25 years had been making use of the wastage, the quantities of water claimed thereby to be saved. 2S0Big Cottonwood Tanner Ditch Co. v. Hyland Realty, Inc., 8 Utah (2d) 341, 344, 334 Pac. (2d) 755 (1959). 2&1Big Cottonwood Tanner Ditch Co. v. Moyle, 109 Utah 213, 231-238, 174 Pac. (2d) 148 (1946). Compare Harvey v. Haights Bench In. Co., 7 Utah (2d) 58, 68-69, 318 Pac. (2d) 343 (1957). 2B2Tulare In. Dist. v. Lindsay-Strathmore In. Dist., 3 Cal. (2d) 489, 45 Pac. (2d) 972 (1935). 283/d. at 572-574. 284Id. at 574. |