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Show MEANS OF DIVERSION 211 downstream dam as to render the waterwheels inoperative. The court rejected the claim that the current was appurtenant to the water location and, furthermore, followed "the general principle that the right of appropriation must be exercised with some regard to the rights of the public."117 In other words, to devote the entire current of a river to lifting a small quantity of water over the banks is not a reasonable method of diversion. (3) The provision in a 1929 Oregon circuit court decree that the method of diversion by natural overflow that was so common for many years in parts of Oregon was "not a right, but merely a privilege to be enjoyed only until rendered impracticable by a fuller development and use of the unappropriated waters" was quoted with approval by the Oregon Supreme Court in a 1959 case, which then stated:118 "That time has come. We hold that the method of diversion by way of natural overflow is a privilege only and cannot be insisted upon by the objectors if it interferes with the appropriation by others of the waters for a beneficial use." Restrictions on Junior Appropriator (1) Statements about a Montana diversion (achieved by means of a wing dam constructed of brush, rocks, and dirt) as "suitable and efficient for the diversion of water," and "a reasonably adequate means of diversion and reasonably constructed and maintained," notwithstanding fluctuations inci- dental to reasonable and lawful use by others, were held to be statements of ultimate facts sufficient to support a statement of cause of action. The injury complained of was such a reduction of streamflow by reason of the defendants' upstream storage that the water would not flow into plaintiffs ditches, so that he could not now divert without large expenditures in construction of a new diversion or installation of a pumping plant. The Montana Supreme Court held that absolute efficiency was neither requisite nor practicable; that the necessity for minimizing waste of water resources does not extend to the abandonment of reasonably efficient diversion systems and the necessity of installing other systems "by which the last drop may be taken from the stream"; that the defendants cannot argue that they are limited by the amount but not the means of prior appropriations; and that the right of the plaintiff appropriator is to divert and use water, not merely to have it left in the streambed.119 (2) An appropriator of water from a surface stream in Arizona was held entitled to protection against depletion of the undercurrent to the extent of preventing the free flow of his appropriation in quantity and quality to the ^Schodde v. Twin Falls Land & Water Co., 161 Fed. 43, 45-48 (9th Cir. 1908), affirmed, 224 U.S. 107 (1912). 118 Warner Valley Stock Co. v. Lynch, 215 Oreg. 523, 537, 336 Pac. (2d) 884 (1959). The vested water rights of these appropriators were not affected by the fact that they no longer had the privilege of a natural overflow method of diversion. "'¦State ex rel Crowley v. District Court, 108 Mont. 89, 97-98, 88 Pac. (2d) 23 (1939). |
