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Show 252 PROTECTION OF WATER RIGHTS IN WATERCOURSES plaintiffs must recover upon the strength of their own title and not upon the weakness of defendant's title."280 (2) The Idaho Supreme Court has indicated that one who diverts water, and who claims that such diversion will not injure a prior appropriator below him on the stream, has the burden of establishing that fact by clear and convincing evidence.281 (3) The Colorado Supreme Court held that "The presumption is that the water of a tributary of a stream, less the evaporation, if not interfered with, will naturally reach the main stream either by surface or subterranean flow."282 Hence, the burden of establishing a contention that water proposed to be diverted from an upstream tributary would not in its natural course reach the headgate of a prior appropriator on the main stream below, rests upon the junior claimant. (4) The Idaho Supreme Court in a 1966 case said that the defendant, who was a junior appropriator, "contends that not all of the water flowing in his ditch comes from springs and swamps along its course: that part of its [sic] arises by means of percolation from the irrigation of lands lying on the bench above the bluff. The burden was on defendant to show the water he takes through his ditch, was not tributary to Spring Creek."283 (5) In a California case, the mere location of a well in close proximity to a stream all the water of which had been appropriated, under circumstances tending strongly to show that the pumping from the well tapped water directly connected with the stream, was held to make out aprimafacie case in favor of the stream appropriators and to cast upon the well operator the burden of proving that his development of water had not interfered with the waters flowing in the stream.284 (6) The Texas Supreme Court has indicated that the burden is on those who seek affirmative relief to show, by pleading and proof, that they are entitled to it. If they fail to do this, it is fundamental error to grant a perpetual injunction.285 And to obtain relief in equity, one must come into court with clean hands. Injunction will not be granted if the effect will be to aid the complainant in the continuance of a legal wrong and trespass. Equity does not Water Co., 157 Cal. 256, 272, 107 Pac. 115 (1910); Smith v. Wheeler, 107 Cal. App. (2d) 451, 456, 237 Pac. (2d) 325 (1951). 2*°Tulare In. Dist. v. Lindsay-Strathmore In. Dist, 3 Cal. (2d) 489, 547-548, 45 Pac. (2d) 972 (1935). ™Josslyn v. Daly, 15 Idaho 137, 149, 96 Pac. 568 (1908); Silkey v. Tiegs, 54 Idaho 126, 128-129, 28 Pac. (2d) 1037 (1934). See also Neil v. Hyde, 32 Idaho 576, 586, 186 Pac. 710(1919). 2*2Petterson v. Payne, 43 Colo. 184,186-187, 95 Pac. 301 (1908); principle reaffirmed in DeHaasv. Benesch, 116 Colo. 344, 350-351, 181 Pac. (2d) 453 (1947). 2*3Martiny v. Wells, 91 Idaho 215, 419 Pac. (2d) 470, 471, 473-474 (1966). 284Larsen v. Apollonio, 5 Cal. (2d) 440,444, 55 Pac. (2d) 196 (1936). 28SMcGheeIn. Ditch Co. v. Hudson, 85 Tex. 587, 590, 593, 22 S.W. 398, 967 (1893). |