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Show REMEDIES FOR INFRINGEMENT 227 Rights of junior appropriator. -The junior appropriator, as well as the senior, is entitled to equitable relief and to the protection of his right against impairment. This protection is afforded the junior appropriator against infringements by holders of other rights, whether senior or junior to his own, or by persons without right.174 In 1941 the Colorado Supreme Court held that in order to invoke the well-established doctrine that a junior appropriator has a vested right, as against his senior, in a continuance of the conditions on the stream as they existed at the time the junior made his appropriation, an actual impairment or irreparable injury to the legal rights of the junior appropriator must be demonstrated by evidential facts and not by potentialities. In this class of cases, said the court, injunction will not issue until it is demonstrated clearly and conclusively that a diminution in the water supply to which the complaining party is lawfully entitled is occasioned by reason of the diversion and use to which objection is made.175 The interrelationships of senior and junior appropriators are discussed at some length in chapter 8 under "Relative Rights of Senior and Junior Appropriators." Some local situations.-(1) Utah. Several parties were sued in an equity proceeding, and it appeared that others who had not been made parties had also diverted water from the same stream during the same period. This had been done to such an extent as to preclude a sufficient showing that but for the acts of the parties who were sued, no injury would have resulted to the plaintiff. On these facts, an injunction would not be granted in an action brought solely for that purpose. "In such cases it must appear that the acts of those sued caused the injury, and that if such acts are continued damages will follow." Further:176 A court of equity could not be expected to enjoin an appropriator of water furthest up the stream without satisfactory proof that the water so claimed to be diverted would have, had it been allowed to pass down the stream, reached plaintiffs ditch. parties where the action is solely for injunctive relief and the rights are not clear or certain." 174In the early California case of Higginsv. Barker, 42 Cal. 233, 235 (1871), plaintiff first appropriated all the original ditch would carry, which the trial court found was 300 inches. Defendants afterward appropriated the whole or a portion of the surplus water flowing in the creek. Subsequently plaintiff constructed a new ditch of larger capacity. The judgment limiting plaintiffs right to 300 inches and enjoining defendant from interfering therewith, but leaving the surplus for the use of defendant, was affirmed by the supreme court as being consistent with justice. "sDel Norte In. Dist. v. Santa Maria Res. Co., 108 Colo. 1, 7, 9, 113 Pac. (2d) 676 (1941). 176 West Point In. Co. v. Moroni & Mt. Pleasant In. Ditch Co., 21 Utah 229, 237, 238, 61 Pac. 16 (1900). |
