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Show 192 PROTECTION OF WATER RIGHTS IN WATERCOURSES JUDICIAL RECOGNITION OF THE NEED The owner of a water right acquires "a right gained to use water beneficially which will be regarded and protected as real property."3 The California Supreme Court has said that the rights of "the prior appropriator are entitled to the protection of the courts of law or in equity."4 In 1875 the United States Supreme Court stated that ever since a California decision rendered 20 years earlier,5 "it has been held generally throughout the Pacific States and Territories that the right to water by prior appropriation for any beneficial purpose is entitled to protection."6Likewise, "It is obvious that an action will lie to quiet title to riparian rights in a stream."7 And so "This [riparian] right to use the water of the stream we hold to be entitled to the same respect and protection at the hands of the law as any other vested property right."8 In 1954, in an action to change the point of diversion of certain municipal water rights and to change the manner of use from farmland irrigation to municipal purposes, the Colorado Supreme Court declared, "It is the purpose of the law, both statutory and by decision, to protect all appropriators and holders of water rights; to this end all elements of loss to the stream by virtue of the proposed change should be considered and accounted for; and thereupon such appropriate provisions of limitation inserted in the decree as the facts would seem to warrant."9 In a 1928 case, the New Mexico Supreme Court said:10 A water right is distinct from the property right in the canals, ditches, pipe lines, and reservoirs by which the water is diverted, stored, and carried to the land for use thereon, and each may exist without the other. * * * Considering this principle, we are satis- fied that a right to the continued use of a vested and accrued water right shall be maintained and protected as fully as the right to a continued use of the easements of the canal, pipe lines, etc., by which the use of the water and water rights is effectuated. Application ofFilippini, 66 Nev. 17, 21-22, 202 Pac. (2d) 535 (1949). 4Peabody v. Vallejo, 2 Cal. (2d) 351, 374, 40 Pac. (2d) 486 (1935). 5 Tarter v. Spring Creek Water & Min. Co., 5 Cal. 395 (1855). 6Basey v. Gallagher, 87 U.S. 670, 683 (1875). V. M. Howell Co. v. Corninglrr. Co., Ill Cal. 513, 518, 171 Pac. 100 (1918). 'Fall River Valley In. Dist. v. Mt. Shasta Power Corp., 202 Cal. 56, 65, 259 Pac. 444 (1927). 'Farmers Highline Canal & Res. Co. v. Golden, 129 Colo. 575, 586-587, 272 Pac. (2d) 629 (1954). 10First State Bank of Alamogordo v. McNew, 33 N. Mex. 414, 437, 269 Pac. 56 (1928). |