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Show 212 PROTECTION OF WATER RIGHTS IN WATERCOURSES head of his ditch, which interference if allowed to continue would require him to install a new method of diversion. The solution of this problem (a) allowed the defendant, a public service corporation, to make its diversion from the underflow and (b) required it to deliver to plaintiff the quantity of water he had appropriated.120 The following two cases had to do with the water level of standing water: (3) A California water company which had acquired the right to pump water from a lake for irrigation of nonriparian land had the right to insist upon a reasonably ample quantity of water to last through the entire irrigation season; and the company had the right "also to enjoin a depletion of the lake which will lower the water surface so as to substantially increase the cost of making the diversion it is entitled to make."121 (4) In the other case, a prior appropriator diverted water from a Colorado reservoir by means of a gravity outlet pipe and also used the reservoir as a conduit for water entering by a ditch. Junior appropriators diverted water from the reservoir by pumping. The quantity of water in the reservoir above the level of the prior appropriator's outlet pipe was sufficient to satisfy his decreed right, and the quantity below the level of the outlet was sufficient for the junior appropriators. The latter threatened to lower the water level below the outlet pipe by means of their pumping. It was not feasible to lower the prior appropriator's pipe. Hence, if the water level were so lowered in the reservoir, the prior appropriator would be prevented from satisfying his right from the reservoir, and his ditch entering the reservoir would be rendered useless. The Colorado Supreme Court held that the senior ditch and reservoir rights were being unlawfully interfered with and practically nullified by the juniors, and that the senior could not, against its will, be compelled to bear the expense of pumping water upon its lands which by gravity would reach them were it not for this unwarranted interference with its prior rights. The lower court was given discretion to grant the junior appropriators the right to continue pumping if they made up the deficiency to the prior appropriator, both as to quantities of water and timeliness of delivery.122 Alteration of Senior Diversion by Junior Appropriator If a junior appropriator wishes to make some change in his senior's diversion works, provided they are reasonably efficient-not necessarily absolutely efficient, for 100 percent efficiency is seldom attainable-in order to benefit his own junior diversion, he must bear the cost and must accomplish the change without impairing the exercise of the senior's right. 120Pima Farms Co. v. Proctor, 30 Ariz. 96, 106-108, 110-113, 245 Pac. 369 (1926). inDuckworth v. Watsonville Water & Light Co., 150 Cal. 520, 527, 533, 89 Pac. 338 (1907). 122 Joseph W. Bowles Res. Co. v. Bennett, 92 Colo. 16, 22-24, 18 Pac. (2d) 313 (1932). |