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Show WASTE, SEEPAGE, AND RETURN WATERS 585 return waters that are still part of the natural flow of the stream, by diverting the original supply out of the watershed, applies to depriving a California appropriator of the use of return waters upon which he has been depending for the enjoyment of his appropriative right.110 The right of a California riparian owner to the natural flow of the stream to which his lands are contiguous extends to the tributaries that enter the stream above his land. Hence the riparian owner has rights in the return flow from waters diverted upstream, taken into another watershed for use there, and allowed thence to escape into a tributary which enters the main stream above his riparian lands.111 In such a case, the waters are not deemed to have been taken out of the aggregate watershed tributary to the riparian lands. Distinguished from right to convey water in watercourse. -This question of the right to recapture return waters from a watercourse is not to be confused with the right to use a watercourse to convey appropriated water. Where one has clear title to water, the general rule is that a natural channel may be used to convey it from one point to another. This right is recognized in Colorado as well as in other States; denial of the right to recapture return waters after they have left one's land is based, in Colorado, upon the point that the appropriator's interest is such waters has ceased and he no longer has any title to them.112 Return Flow From Foreign Waters Foreign water is water brought by artificial means into an area from a different watershed.113 These waters are termed "foreign" in that they are not naturally a part of the water supply of the area in which used. In the first reported decision of the California Supreme Court in the field of water law, it was held that a party cannot reclaim water that he has lost.114 And with respect to this decision, the supreme court several years later stated that "it regarded the water as having been abandoned."115 In 1939, the California Supreme Court sustained the right of an irrigation district to recapture from a creek, at a point within the boundaries of the district, seepage, waste, and spill waters that had drained into the creek from lands irrigated by the district with water brought from another watershed, as ^3See Scott v. Fruit Gorwers'Supply Co., 202 Cal. 47, 51, 55, 258 Pac. 1095 (1927). 111 Crane v. Stevinson, 5 Cal. (2d) 387, 399-400, 54 Pac. (2d) 1100 (1936). See Holmes v. Nay, 186 Cal. 231, 240-241, 199 Pac. 325 (1921); Rancho Santa Margarita v. Vail, 11 _^_Oal. (2d) 501, 529-532, 81 Pac. (2d) 533 (1938). ^Port Morgan Res. & In. Co. v.McCune, 71 Colo. 256, 206 Pac. 393 (1922). 113In E. Clemens Horst Co. v. New Blue Point Min. Co., Ill Cal. 631, 634, 171 Pac. 417 (1918), it was said, "It was found by the court that Wolf Creek receives, and for more than half a century has received, in addition to its natural flow, water coming from sources without its watershed and known as 'foreign water.'" u*Eddy v. Simpson, 3 Cal. 249, 252 (1853). U5Butte Canal & Ditch Co. v. Vaughn, 11 Cal. 143,151-152 (1858). |