| OCR Text |
Show 246 PROTECTION OF WATER RIGHTS IN WATERCOURSES injunction should be granted if its effect would be to waste water that could be beneficially used.256 (2) A Federal court cautioned that the constitutional amendment does not permit an appropriator to disregard the rights of riparian owners and others having prior or paramount rights to the use of all waters of a stream which they can put to reasonable beneficial use under reasonable methods of use. If under such circumstances "one seeks to appropriate the water wasted or not put to any beneficial use, it is obligatory that he find some physical solution, at his expense, to preserve existing prior rights, or if this cannot be done, and the water is to be appropriated, nonetheless, under the right of eminent domain, the riparian owners, prior appropriators and overlying landowners must be compensated for the value of the rights taken."257 (3) The Arizona Supreme Court has suggested physical solutions, in the interest of economy of water and equity to all parties under the circumstances involved, in the settlement of conflicting claims to water rights. In each case it was recommended that the organization obligated to yield water to other parties do so through its own canal system at no greater expense to the prevailing parties than would be occasioned by their own methods of diversion, rather than to release the water through natural channels with resulting losses.258 The matter of physical solutions is discussed in more detail in chapter 15. Declaratory Decree and Reservation of Continuing Jurisdiction In a contest between the holder of a paramount riparian right and an appropriator, the riparian owner, even if not materially injured, is entitled to a judgment declaring his paramount right and enjoining the assertion of an adverse right that might otherwise become a prescriptive right.259 His prospective reasonable beneficial uses likewise may be protected by a declaratory decree pending the time he is ready to use the water.260 In giving declaratory relief, the court has the powers of a court of equity.261 2S6Rancho Santa Margarita v. Vail, 11 Cal. (2d) 501, 559, 81 Pac. (2d) 533 (1938). 2S1Gerlach Livestock Co. v. United States, 76 Fed. Supp. 87, 94-95 (Ct. Cl. 1948), affirmed, 339 U.S. 725 (1950). See particularly 339 U.S. at 752-755. 2S*Pima Farms Co. v. Proctor, 30 Ariz. 96, 112-113, 245 Pac. 369 (1926); Maricopa County M. W. C. Dist. v. Southwest Cotton Co., 39 Ariz. 367, 370, 7 Pac. (2d) 254 (1932). 2S9Peabody v. Vallejo, 2 Cal. (2d) 351, 374, 382-383, 40 Pac. (2d) 486 (1935). This has been noted above in the discussion of the impacts of the 1928 California constitutional amendment under the subtopic "Injunction or Damages or Both-Some State Riparian-Appropriation Situations-California." See note 239 supra regarding riparian versus appropriative rights. 260Tulare In. Dist. v. Lindsay-Strathmore Irr. Dist., 3 Cal. (2d) 489, 525, 529-530, 45 Pac. (2d) 972 (1935). Compare Rank v. (Krug) United States, 142 Fed. Supp. 1, 104-115 (S.D. Cal. 1956). 261 Los Angeles v. Glendale, 23 Cal. (2d) 68, 81, 142 Pac. (2d) 289 (1943). |
