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Show PROTECTION OF SOURCE OF SUPPLY 203 Whether one stream or other source of water supply is a tributary of another is a question of fact.69 In a controversy over the question of whether a certain stream was a tributary of the Platte River on which plaintiff had prior rights, it was incumbent upon the plaintiff, in order to show that it was entitled to relief, to establish the fact that the stream in controversy was a tributary of the Platte River. The burden of proof was on the plaintiff to show that the stream was such a tributary, not on the defendants to show that it was not a tributary.70 A Federal court stated the relationship of main stream and tributaries thus:71 Tributary waters, branches, are inseparable parts of the main stream, and with it are subject to common appropriation and control in so far as reasonably necessary in irrigation as in navigation. The first may not be diverted to the impairment of prior rights in the last. The proprietor of the trunk owns the branches, and safety of the first requires protection of the last. (4) Circumstances under which an appropriator might claim a right of protection with respect to tributaries flowing into the stream below his point of diversion were thus stated by the Montana Supreme Court:72 He also has the right to require appropriators subordinate to him and his water right, who have appropriated and who take water from the stream or its tributaries below his point of diverson, to forbear using such water when such use will deprive appropriators prior to him, downstream, of the use of water to which they are entitled; otherwise he might be required to forbear the use of water to which he is entitled in order to supply the appropriator first in order of priority. Other Tributary Sources Of other tributary sources of supply of watercourses, springs have been involved in many controversies that have reached the high courts. Other sources of great practical importance are return flow and percolating ground waters. The various facets of these other sources are discussed later in chapters 18 to 20. In connection with the present subject of protection in tributary sources of supply, mention will be made of only one point relating to springs-the general rules as to tributary springs in States in which the appropriation doctrine is "Loyningv.Rankin, 118 Mont. 235, 246,165 Pac. (2d) 1006 (1946). 70Buckers Irr., Mitt. & Improvement Co. v. Platte Valley In. Co., 28 Colo. 187, 189-191, 63 Pac. 305 (1900). 71 Dent v. Tanner, 60 Fed. (2d) 626,628 (D. Mont. 1932). 73Helena v. Rogan, 26 Mont. 452,470,68 Pac. 798 (1902). |
