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Show Chapter 13 PROTECTION OF WATER RIGHTS IN WATERCOURSES NEED FOR PROTECTION As mentioned in chapter 5 under "Water Rights," a valid water right- whether appropriative or riparian1 -is a right of property. It is real property, a usufruct, a right to make beneficial use of water1. The lawful acquisition and disposition of water rights are entitled to protection. In the exercise of his right to the use of water of a watercourse, the holder also is entitled to legal protection in his lawful acts of diverting, storing, distributing, and using the water. Necessarily, to make the right effective, the water must reach his headgate or land in the quantity and quality and at the times required for the uses to which the holder may lawfully put it. His right of protection may be invoked against acts of persons holding lesser rights, or without right, that result in materially diminishing the quantity or depreciating the quality of the water for his proper purposes, or that interfere with the streamflow at the times he is entitled to receive it. Under various circumstances and in various ways, his right of protection also may be invoked against acts of those with equal rights, or even against those with greater rights. To be entitled to this protection of a claim of right to the use of water, one who asserts impairment or injury or improper interference must first establish his right. If he cannot do this, he has no water right that he can invoke the courts to protect.2 '' These are the two principal water rights doctrines applicable to watercourses in the Western States. Pueblo rights and ancient Hawaiian water rights have been discussed in the immediately preceding chapters and are not further discussed in this chapter, although a number of its topics may be applicable, in various ways, to such rights. The general principles applicable to water rights doctrines as between certain parties, may be altered by such complicating factors as voluntary contractual agreements, condemnation, prescriptive rights, and estoppel. Such factors were involved in some of the court decisions discussed in this chapter. The latter factors are discussed in chapter 14. See, e.g., "Prescription-Loss of Prescriptive Rights." 3 A city that had been pumping water from a stream for service to its inhabitants failed to show that it had any water right in the premises, hence was not entitled to a preliminary writ of injuction against upper riparian owners to protect its customary use of the water. Miller v. Ballinger, 204 S. W. 1173,1174 (Tex. Civ. App. 1918). (191) |