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Show 206 PROTECTION OF WATER RIGHTS IN WATERCOURSES reasonable beneficial use, and to be protected in that right by the injunctive processes of the court."85 Quantity of the Water The reasoning of the California Supreme Court in reaching its conclusion as to the appropriator's protection in quantity of water appears in a decision rendered during the rather extensive gold mining litigation. This was to the effect that the appropriator is entitled to have the water flow without material interruption in its natural channel to his point of diversion, such right being essential to his protection; for otherwise, if the rule were followed that the subsequent upstream users might so use the water as to diminish the quantity, it would be difficult to set any practical limits to such diminution, and so the downstream property with the earlier right might be rendered entirely worthless.86 "An appropriator is entitled to have the full quantity of water called for by his appropriation flow in the natural stream, or in his ditch or canal, in such a way that he can enjoy its use," and he is entitled to protection from the courts against any material interference with this flow of water by which his right to its use is substantially impaired.87 The injury or threat of injury arises in various ways. Some that have been litigated are interference with the natural flow of a watercourse;88 irregularity of flow, from complete detention to over-rapid discharge;89 obstruction of streamflow;90 allowing water to run to waste without substantial beneficial use;91 diverting excessive quantity of water;92 removal of natural dam in stream;93 and maintenance of dams for purpose of controlling soil erosion.94 8SMeridian v. San Francisco, 13 Cal. (2d) 424,447, 90 Pac. (2d) 537 (1939). "Bear River & Auburn Water & Min. Co. v. New YorkMin. Co., 8 Cal. 327, 336 (1857). "Bailey v. Idaho In. Co., 39 Idaho 354, 358, 227 Pac. 1055 (1924). The interruption in flow of the water and the diminution of quantity must be material in order to constitute an invasion of the rights of the prior appropriator; and these are matters of fact. Atchison v. Peterson, 87 U.S. 507, 514-515 (1874);Montana Co. v. Gehring, 75 Fed. 384, 388 (9th Cir. 1896). 88 Weidmeier v. Edelman, 75 S. Dak. 29, 58 N.W. (2d) 306 (1953); Willadsen v. Crawford, 75 S. Dak. 161, 60 N.W. (2d) 692 (1953). 89Lone Tree Ditch Co. v. Rapid City Elec & Gas Light Co., 16 S. Dak. 451, 93 N.W. 650 (1903). 90Lasson v. Seely, 120 Utah 679, 238 Pac. (2d) 418 (l95iy,Kano v.Arcon Corp., 7 Utah (2d) 431, 326 Pac. (2d) 719 (1958); Monroe Mill Co. v.Menzel, 35 Wash. 487, 77 Pac. 813 (1904); Kalama Elec. Light & Power Co. v. Kalama Driving Co., 48 Wash. 612, 94 Pac. 469 (1908); Hutchinson v. Mt. Vernon Water & Power Co., 49 Wash. 469, 95 Pac. 1023 (1908). 91 Campbell v. Grimes, 62 Kans. 503, 64 Pac. 62 (1901). 92Handy Ditch Co. v. Louden Irrigating Canal Co., 27 Colo. 515, 62 Pac. 847 (1900). 93Broady v. Furray, 163 Okla. 204, 21 Pac. (2d) 770 (1933). "State ex rel. Johnson v. Stewart, 163 Oreg. 585, 96 Pac. (2d) 220 (1939). |
