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Show 584 OTHER WATERS AT THE SURFACE juris and subject to appropriation.101 In 1896, this court stated:102 It will not be disputed, we think, that a prior appropriator of water cannot so change the use of the water as to deprive the subsequent appropriator of his rights. If the prior appropriator cannot encroach upon the rights of the subsequent appropriator by changing the use, we think, for the same reasons, he cannot do so by changing the place of the use. This view, we think, is in accordance with the authorities, as well as reason and justice. The New Mexico State Engineer is authorized by statute to approve applications to appropriate flood waters upstream under conditions that would result in a considerable return flow above the works of other appropriators and thus not deprive the latter of water to the extent of their reasonable requirements.103 Another New Mexico statute provides that waste and seepage waters from constructed works are primarily private and subject to the owner or developer thereof. However, if such waters are returned to a natural watercourse and are not applied to beneficial use within 4 years of their first appearance, the return waters are subject to appropriation.104 The California Water Code contains a declaration as to what constitutes unappropriated water, including "Water which having been appropriated or used flows back into a stream, lake or other body of water."1OS Riparian lands in California benefit from the return to the stream of that portion of the water diverted upstream that is not consumed.106 The riparian rights of such lands entitle the owners to the natural flow in the stream, including such portions of the natural flow diverted upstream as are allowed to flow back into the stream after use.107 The fact that such water has once been used on upstream land does not deprive it of the character of natural flow when it has returned to the stream from which diverted.108 The claim of the California riparian owner upon the natural flow of the stream is such that he may enjoin an upstream diversion of water out of the watershed, to a point from which the excess waters after their use cannot return to the stream above his riparian lands, to the injury of his riparian right.109 The same inhibition against injuring the riparian owner by depriving him of 101 Woolman v. Garringer, 1 Mont. 535, 545 (1872). 102Gassert v. Noyes, 18 Mont. 216, 223, 44 Pac. 959 (1896). 103 N. Mex. Stat. Ann. § 75^5-28 (1964). l04Id. § 75-5-25. The entire section is set out at note 55 supra. 105Cal. Water Code § 1201(d) (West 1956). 106Anaheim Union Water Co. v. Fuller, 150 Cal. 327, 330, 88 Pac. 978 (1907). ^Southern Cal. Inv. Co. v. Wilshire, 144 Cal. 68, 72-73, 77 Pac. 767 (1904). 108 A California case regarding salt impregnation from irrigation return flow is discussed in chapter 10 at note 158. 109 See Southern Cal. Inv. Co. v. Wilshire, 144 Cal. 68, 72-74, 77 Pac. 767 (1904);Huffner v. Sawday, 153 Cal. 86, 90, 91, 94, 94 Pac. 424 (1908); Scott v. Fruit Growers'Supply Co., 202 Cal. 47, 51, 55, 258 Pac. 1095 (1927). |