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Show WASTE, SEEPAGE, AND RETURN WATERS 581 This general subject has been comprehensively litigated in Colorado, and to a lesser extent in some other States. Colorado.-The principle has been established in Colorado that return waters from a diversion under an appropriative right are a part of the streamflow from the time they escape from the premises or works of the appropriator, provided they would ultimately return to the stream system from which originally diverted if not artificially intercepted. Consequently, they belong to that stream system and are subject to the rights of appropriators thereon in the order of their priorities. Diligence in attempting to recapture the waters after leaving the boundaries is not material. In other words, such waters belong to the stream even before they commingle with the waters naturally flowing there.84 On the South Platte in Colorado, upstream development occurred first and the resultant increasing return flow made progressive downstream development possible and eventually added materially to the value of the junior downstream rights. Oregon.-ln the early 1930's the Oregon Supreme Court decided two important cases relating to return flow within the watershed. In one case the court stated that after water used to operate a mill had served its purpose and was allowed to flow back into the river, although often termed "waste water," it nevertheless became a part of the stream so that the milling company had no further control over it. "Such water has no earmarks to enable its former possessor to follow it and exercise ownership over it."85 Another case concerned the right of an appropriator who depended upon water released upstream (under an earlier right) after being used for power purposes. The power appropriator had no authority or right to change the place of use of the water for power purposes, a nonconsuming use, to another place upstream to be used for irrigation purposes, a consuming use, to the injury of this later appropriator.86 X 84 Development of the principle is found in Water Supply & Storage Co. v. Larimer & Weld Res. Co., 25 Colo. 87, 53 Pac. 386 (l898);*Clark v. Ashley, 34 Colo. 285, 82 Pac. 588 (1905);Vo^/ v. Minnesota Canal & Res. Co., 47 Colo. 534, 107 Pac. 1108 (1910); yComstock v. Ramsey, 55 Colo. 244, 133 Pac. 1107 (1913)-^Trowel Land & In. Co. v. Bijou In. Dist., 65 Colo. 202, 176 Pac. 292 (1918); conttdi^McKelvey \. North Sterling In. Dist., 66 Colo. 11, 179 Pac. 872 (1919), but distinguished rr^Fort Morgan Res. & In. Co. v. McCune, 71 Colo. 256, 206 Pac. 393 (1922); xPulaski In. Ditch Co. v. Trinidad, 70 Colo. 565, 203 Pac. 681 (1922); *Las Animas Consol. Canal Co. v. Hinderlider, 100 Colo. 508, 68 Pac. (2d) 564 (1937). But waters which could not have added to the waters of the natural stream are not available to appropriators on that stream, as against an appropriator of the waters flowing in a drainage ditch made 2 years after the construction of the drain. San Luis Valley In. Dist. v. Prairie Ditch Co. & Rio Grande Drainage Dist., 84 Colo. 99, 268 Pac. 533 (1928), discussed at note 126 infra. "Hutchinson v. Stricklin, 146 Oreg. 285, 294, 28 Pac. (2d) 225 (1933). S6Broughton v. Stricklin, 146 Oreg. 259, 267, 271, 28 Pac. (2d) 219 (1933), 30 Pac. (2d) 332(1934). |