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Show 202 PROTECTION OF WATER RIGHTS IN WATERCOURSES stream, provided such interference materially infringes his prior rights.61 Likewise the right of the riparian owner includes the right to protection on tributary sources of supply of the stream to which his land is contiguous. This right of protection includes tributary streams that enter the main stream above the riparian land.62 (2) The reason for the rule seems fairly obvious, but it had to be litigated in various cases. In its earliest reported decision in controversies over water rights, the Idaho Supreme Court said that:63 If persons can go upon the tributaries of streams whose waters have all been appropriated and applied to a useful and legitimate purpose, and can take and control the waters of such tributaries, then, indeed, the sources of supply of all appropriated natural streams may be entirely cut off, and turned away from the first and rightful appropriators. To allow this to be done would disturb substantial vested rights, and the law will not permit it. "It seems self-evident," said the same court in another case, "that to divert water from a stream or its supplies or tributaries must in a large measure diminish the volume of water in the main stream * * *.'564 (3) This protective right of the appropriator extends to water flowing in tributaries above his point of diversion.65 And it extends from the head of each such tributary down to his point of diversion.66 But it extends only to waters of a tributary that reach the appropriator during the time he has need of the water.67 "An appropriator from a main channel can complain of a diversion from a 'tributary' only if and when such tributary would, if not interfered with, make a valuable contribution to the main stream."68 61 Weaver v. Eureka Lake Co., 15 Cal. 271, 274 (1860). Such acts of interference are a trespass upon the rights of the prior appropriator-"exactly the same kind of trespass as though the creek was tapped and that amount of water directly taken therefrom without any molestation of the lakes." Baxter v. Gilbert, 125 Cal. 580, 582, 58 Pac. 129 (1899). "See Holmes v. Nay, 186 Cal. 231, 240-241, 199 Pac. 315 (1921); Crane v. Stevinson, 5 Cal. 387, 399-400, 54 Pac. (2d) 1100 (1936). 63Malad Valley Irr. Co. v. Campbell, 2 Idaho 411,415, 18 Pac. 52 (1888). "Josslyn v. Daly, 15 Idaho 137, 149, 96 Pac. 568 (1908). See Strickler v. Colorado Springs, 16 Colo. 61, 66-67, 26 Pac. 313 (1891); Farmers Independent Ditch Co. v. Agric. Ditch Co., 22 Colo. 513, 521, 45 Pac. 444 (1896); Dry Gulch Ditch Co. v. Hutton, 170 Oreg. 656, 679, 133 Pac. (2d) 601 (1943); Low v.Schaffer, 24 Oreg. 239, 244, 33 Pac. 678 (1893). 65Marks v. Hilger, 262 Fed. 302, 304 (9th Cir. 1920). 66Helena v. Rogan, 26 Mont. 452, 469-470, 68 Pac. 798 (1902). "Anderson v. Spear-Morgan Livestock Co., 107 Mont. 18, 29-30, 79 Pac. (2d) 667 (1938); Leonard v. Shatzer, 11 Mont. 422,426^27, 28 Pac. 457 (1892). 68 United States v. Haga, 276 Fed. 41,43 (D. Idaho 1921). See Tonkin v. Winzell, 27 Nev. 88, 96-97, 73 Pac. 593 (1903). |