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Show PROTECTION OF SOURCE OF SUPPLY 205 flows away from it.78 This means that as against a lower riparian owner, the owner of the land on which the spring is located is "entitled only to a reasonable use of the waters of all parts of the stream including the spring."79 The same result was reached in the Texas courts in according to the owner of land containing a head spring only the right of a riparian owner to make reasonable use of the water for irrigation as against similar rights of owners of lands contiguous to the stream flowing from the spring.80 The Washington Supreme Court differentiated between old and new springs thus:81 While one may have riparian rights in a stream even though its source be a spring upon the land of another * * * yet it must be a stream that was wont to flow from time immemorial. The owner of land upon which a new spring breaks out may make such use of the waters as he pleases, notwithstanding it would, if unmolested, cause a stream to flow across another's land. Any other rule would make his estate involuntarily servient to a use to which it was not subject when he acquired it. QUANTITY AND QUALITY OF THE WATER A century ago the California Supreme Court stated that: "The prior appropriator is clearly entitled to protection against acts which materially diminish the quantity of water to which he is entitled, or deteriorate its quality, for the uses to which he wishes to apply it."82 Statements to this effect have been made in one form or another by a number of courts.83 Likewise, the riparian proprietor in California, whose right of reasonable beneficial use of water was preserved and declared in the constitutional amendment of 1928,84 "is entitled to all of the water of the stream, both in the quantity and quality of its natural state, which he is able to put to a 78Holmes v. Nay, 186 Cal. 231, 234-235, 199 Pac. 325 (1921). 19Gutierrez v. Wege, 145 Cal. 730, 734, 79 Pac. 449 (1905). ^Fleming v. Davis, 37 Tex. 173, 194-201 (Semicolon Ct. 1872); implicit in WatkinsLand Co. v. Clements, 98 Tex. 578, 585-590, 86 S.W. 733 (1905). "Mason v. Yearwood, 58 Wash. 276, 280,108 Pac. 608 (1910). "Phoenix Water Co. v. Fletcher, 23 CaL 481,487 (1863). "Arizona Copper Co. v. Gillespie, 12 Ariz. 190, 202-203, 100 Pac. 465 (1909); Larimer County Res. Co. v. People ex rel. Luthe, 8 Colo. 614, 617, 9 Pac. 794 (1886); Crane v. Winsor, 2 Utah 248, 253 (1878); Ravndalv. North fork Placers, 60 Idaho 305, 311-313, 91 Pac. (2d) 368 (1939); Helena v. Rogan, 26 Mont. 452, 469-470, 68 Pac. 798 (1902). The prior appropriator is entitled to the use of his appropriated waters, as against subsequent appropriators, "without material interruption in the flow thereof, or in quantity or quality." Atchison v. Peterson, 1 Mont. 561, 569 (1872), affirmed, 87 U.S. 507 (1874). 84 Cal. Const, art. XIV, § 3. |