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Show 194 PROTECTION OF WATER RIGHTS IN WATERCOURSES subsequent appropriator may take any."18 Various other courts have held to the same general effect.19 Priorities of appropriation ordinarily govern the respective rights thereto regardless of whether the senior appropriator diverts water at a point above or below the points at which junior appropriators make their diversions from the stream.20 This, one of the cardinal principles of the doctrine of prior appropriation, was established in an early California case.21 Exercise of this principle is sometimes complicated by matters of loss of water in long stream channels, return flow accretions, and comparable practical difficulties, as noted in chapter 8 under "Relative Rights of Senior and Junior Appropriators- Reciprocal Rights and Obligations of Appropriators." As a result of statutory preferences and restrictions that now prevail generally in the West with respect to permits for the appropriation of streamflow, the first applicant is not necessarily the one who acquires the first priority (see the discussions of restrictions and preferences at the end of chapter 7). With respect to such appropriations, it is more nearly correct to say that the one who holds the highest priority-who may or may not have been the earliest applicant-is first in right. Furthermore, the appropriator ordinarily has no right to or interest in the water after it has left his premises, and so he usually cannot complain of any uses of the water made by others downstream. (See, in chapter 8, "Property Characteristics-Right of Property-Right to the Flow of Water.") Hence the right of protection of an appropriator against unlawful interference by a downstream junior appropriator or riparian owner would ordinarily relate to some act or threat of hostile physical interference with the upper appropria- tor's works or use of the water.22 Probably it would not encompass an action "Pasadena v. Alhambra, 33 Cal. (2d) 908, 926, 207 Pac. (2d) 17 (1949). This right of protection was acknowledged by the California Supreme Court in one of the earliest cases in 1855. Stiles v. Laird, 5 Cal. 120, 122 (1855). "Bailey v. Idaho In. Co., 39 Idaho 354, 358, 227 Pac. 1055 (1924). In an action brought by a prior appropriator with respect to a diversion that interferes with the exercise of his rights, it is not necessary that he aver ownership of the waters, the averment of his own prior appropriation and of defendant's diversion being enough, for an allegation of ownership of the water would be a conclusion of law and would add nothing to the pleadings. Jerrett v. Mahan, 20 Nev. 89, 98, 17 Pac. 12 (1888). (Of course it is now recognized that the appropriator does not "own" the water until he takes it into private possession. See chapter 5.) Gates v. Settlers'Mill, Canal & Res. Co., 19 Okla. 83, 88-89, 91, 91 Pac. 856 (1907). Low v. Schaffer, 24 Oreg. 239, 244, 33 Pac. 678 (1893). Protection of the right is afforded only to the extent that the appropriator makes a beneficial use of the water. Sullivan v. Jones, 13 Ariz. 229, 233, 108 Pac. 476 (1910). It extends only to the reasonable use of water by the prior appropriator, after which he has no right to the use of the surplus. Bolter v. Garrett, 44 Oreg. 304, 308, 75 Pac. 142 (1904). 20Beecher v. Cassia Creek In. Co., 66 Idaho 1, 9-10,154 Pac. (2d) 507 (1944). 21 Hill v. King, 8 Cal. 336, 337-339 (1857). "For example, in Spargur v. Heard, 90 Cal. 221, 230, 27 Pac. 198 (1891), an appropriator |