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Show REMEDIES FOR INFRINGEMENT !253 adjust differences between wrongdoers; the complainant is first judged, and not until he has been found free from taint does equity proceed to determine whether he has been wronged.286 (7) A Colorado statute enacted in 1899-and still in effect-authorized the owners of ditches and water rights, taking water from the same stream, to exchange with and loan to each other, for a limited time, the water to which each might be entitled, for the purpose of saving crops or of using the water in a more economical manner.287 Several years later the Colorado Supreme Court had occasion to decide two controversies in which operations under the statute were involved. The first decision was to the effect that any such exchange or loan, if permissible at all, cannot be allowed if it injuriously affects the rights of others; and that it is the duty of a senior appropriator who disregards the strict rule of priority and passes over one or more junior appropriators, in order to loan his water to another appropriator junior to the latter, to show the facts that justify his departure from the priority rule.288 The second decision referred to the first as authority for a construction of the statute "which permits an exchange or loan of water under circumstances and conditions which do not injuriously affect the vested rights of other appropriators," and held that in the instant case "the burden of establishing such facts resting upon plaintiffs, the complaint should make apt averments in that behalf."289 Riparian Owners (1) The riparian owner is under the same burden as is the appropriator in proving the extent of his right when an attempt is made to establish a right to appropriate part or all of the surplus in a water field. According to the California Supreme Court:290 This rule, placing the burden on the appropriator who seeks to take water from a particular water field to show that there is a surplus, does not relieve the riparians and appropriators, who are already in the field, from the burden of proving the quantity of water that they have been using, and that such amount is necessary for their reasonable beneficial purposes. The rule throws on the new appropriator the burden of proving the existence of a surplus from which it can extract the quantity it desires from either the surface or subterranean flow without injury to the uses and requirements of those who have prior rights. In the present case, while it is true 286Humphreys-Mexia Co. v.Arseneaux, 116 Tex. 603, 612-615, 297 S.W. 225 (1927). 287 Colo. Laws 1899, p. 236, Rev. Stat. Ann. § 148-6-5 (1963). ™FortLyon Canal Co. v. Chew, 33 Colo. 392, 400, 404-405, 81 Pac. 37 (1905). 289Bowman v. Virdin, 40 Colo. 247, 249-251, 90 Pac. 506 (1907). 290Tulare In. Dist. v. Lindsay-Strathmore In. Dist., 3 Cal. (2d) 489, 535,45 Pac. (2d) 972 (1935). |