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Show 208 PROTECTION OF WATER RIGHTS IN WATERCOURSES settled upon the principal that "The prior appropriator is clearly entitled to pro- tection against acts which materially diminish the quantity of water to which he is entitled, or deteriorate its quality, for the uses to which he wishes to apply it."100 In 1942 the California Supreme Court again expressed its views on this question.101 It at first mistakenly said that102 "it is an established rule in this state that an appropriator of waters of a stream, as against upper owners with inferior rights of user, is entitled to have the water at his point of diversion preserved in its natural state of purity...." But the court went on to qualify this flat statement by adding that "any use which corrupts the water so as to essentially impair its usefulness for the purposes to which he originally devoted it, is an invasion of his rights. Any material deterioration of the quality of the stream by subsequent appropriators or others without superior rights entitles him to both injunctive and legal relief."103 In California and other dual system States, as discussed in chapter 10,104 the riparian right is also accorded protection against impairment of quality of the water. The riparian proprietor may be protected in his right to all the water of the stream, in both quantity and quality of its natural state, which he is able to put to a reasonable beneficial use.105 It is said further that if necessary to safeguard the exercise of his lawful riparian uses, the downstream proprietor is entitled as against both upstream riparians and prior appropriators "to a substantially unpolluted stream,"106 particularly where the downstream use is for domestic purposes.107 On the other hand, a '"serious and threatening' damage of pollution, in the absence of actual pollution," would not justify a prohibitory injunction, especially when protective measures short of absolute prohibition might, if necessary, be applied by the court.108 Some courts have indicated that as between riparians reasonableness of use in regard to water quality is primarily a question of fact, to be determined by consideration of all the circumstances of each particular case.109 i00Phoenix Water Co. v. Fletcher, 23 Cal. 481,487 (1863). 101 Wright v. Best, 19 Cal. (2d) 368, 378, 121 Pac. (2d) 702 (1942). See also Joerger v. Pacific Gas & Elec. Co., 207 Cal. 8, 25-26, 276 Pac. 1017 (1929); Dripps v. Allison's Mines Co., 45 Cal. App. 95, 99,187 Pac. 448 (1919); Antioch v. WilliamsIrr. Dist, 188 Cal. 451, 457-458, 465, 205 Pac. 688 (1922). 102 Wright v.Best, 19 Cal. (2d) 368, 378, 121 Pac. (2d) 702 (1942). 103Id. Emphasis added. But see Heil v. Sawada, 187 Cal. App. (2d) 633, 637-638,10 Cal. Rptr. 61 (1960), in which a California court of appeal restated this rule but indicated that an injunction will only be granted if the plaintiff would receive some advantage and harm would not accrue to the defendant. 104 See "The Riparian Right-Property Characteristics-Right to the Flow of Water- Quality of the water." 105Meridian v. San Francisco, 13 Cal. (2d) 424,447, 90 Pac. (2d) 537 (1939). 106Crum v. Mt. Shasta Power Corp., 220 Cal. 295, 312, 30 Pac. (2d) 30 (1934). 101'Joerger v. Pacific Gas & Elec. Co., 207 Cal. 8, 25-26, 276 Pac. 1017 (1929). imMeridian v. San Francisco, 13 Cal. (2d) 424, 451-452, 90 Pac. (2d) 537 (1939). 109McDonough v. Russell-Miller Mill. Co., 38 N. Dak. 465, 471-473,165 N.W. 504 (1917) |