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Show 394 LOSS OF WATER RIGHTS IN WATERCOURSES of Appropriation-The Priority Principle in Operation-Location of diversion works on watercourse," there may be a physical advantage in the location of a junior diversion high up the stream at times when the late season flow at such diversion point is large enough to be taken out there, but not large enough to reach downstream appropriators in sufficient quantity to be useful to them if left alone. The law does not require the upstream junior appropriator to do such a vain thing as to release water that would simply be lost in the stream channel and hence be of no benefit to those downstream. But from a strict legal standpoint, location of diversion works on source of supply has nothing to do with priority of right. The first priority may be located near the headwaters or near the mouth of the stream or at any intermediate point, and each subsequent priority likewise at any point. (2) In determining acquisition of prescriptive rights, on the other hand, relative locations on a stream channel have an important bearing on relative possibilities of acquiring such rights. This results from the natural law of gravitation which causes water to constantly seek a lower level. Therefore, if left alone, water will flow down the channel past all diversions in turn from the highest upstream to the lowest downstream. After a given segment of the flow has passed a particular headgate or the lower boundary of the tract served thereby, the owner of the water right related to it ordinarily has no further interest in that segment of the flow in its inevitable course downstream. He has no claim upon the water after it has passed his physical control; consequently he generally is not injured by what is done with it by downstream water users and has no cause of action against them, provided, of course, that they do not back the water up over his land without having acquired a legal right to do so.709 By contrast, if this assumed riparian owner or appropriator does have a right to divert and use this particular segment of the flow and, therefore, to have it come down to his headgate substantially undiminished in quantity, he is very much concerned with anything that is done at upstream diversions that results in preventing him from receiving his rightful share of the water. In other words, he conceivably can be injured by wrongful operations upstream and thus have a cause of action against the offending parties. (3) As noted below, it is sometimes said that, in general, prescription or adverse use does not "run upstream."710 From the general physical upstream- downstream interrelationship, it may be appreciated that by far the largest number of claims of adverse possession are made by those upstream. In only exceptional cases is a prescriptive right established by a downstream user as against an appropriator or riparian owner above him on the stream. Prescriptive claimant usually upstream.-In the usual case in which the acquisition of prescriptive rights to the use of water is allowed by law, such 709 Regarding this and other possible exceptions, see "Downstream prescriptive claimant: Actual interference with upstream property or water right," infra. 710 Welhville East Field In. Co. v. Lindsay Land & Livestock Co., 104 Utah 448, 482, 137 Pac. (2d) 634 (1943). |