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Show 586 OTHER WATERS AT THE SURFACE against downstream appropriators of water from this increased flow in the creek.116 The court summed up its views as follows:117 To summarize, one who produces a flow of foreign water for beneficial use and thereafter permits it to drain down a natural stream channel, is ordinarily under no duty to lower claimants to continue importing the supply or to continue maintaining the volume of discharge into the second stream channel at any fixed rate. The rule may have exceptions, as perhaps where the artificial condition has become inherently permanent and there has been a dedication to the public use, or where the drainage is stopped wantonly to harm a lower party, without other object. But as a general proposition, an irrigation district, after importing water from one river, passing it through irrigation works, and discharging it into a natural creek bed in the second watershed, may change the flow of water imported or the volume of water discharged from its works into the second stream, or stop the flow entirely, so long as this is done above the point where the water leaves the works of the district or the boundaries of its land. An exception to the rule is not created by the fact that the district may act upon the water a second time while in its possession, by retaking it at a point of drainage for further beneficial application. Waters brought into an area from a different watershed and reduced to private possession, then, are private property during the period of possession. There may be a mere abandonment of specific parcels of the water that are discharged or have escaped from control, but this is not the abandonment of a water right. Past abandonment of certain water, as distinguished from a water right, does not confer upon lower claimants any right to compel a like abandonment in the future. The question of the right to use return flow from foreign waters by appropriators or riparians is the subject of the ensuing discussion. Appropriators.-The California decisions are to the effect that where those who have imported foreign waters and released them into a watercourse make no claim to their further use, such waters become subject to appropriation in order of priority by those who can have access to them. These appropriative rights attach only to such foreign waters as have been abandoned, and are always subject to the right of the importer or producer to cease his abandonment thereof in whole or in part. In 1918 the California Supreme Court in the Horst case stated, in discussing riparian rights, "The court does not construe the opinion herein as deciding the question as to what rights may be acquired in so-called 'foreign waters,' as ll6Stevens v. Oakdale In. Dist, 13 Cal. (2d) 343, 350-353,90 Pac. (2d) 58 (1939). Several years later the rule so announced was approved and applied in Los Angeles v. Glendale, 23 Cal. (2d) 68, 76-78, 142 Pac. (2d) 289 (1943). See/toi/H v.De Vaurs, 97 Cal. App. (2d) 841, 844, 218 Pac. (2d) 996 (1950). 11713 Cal. (2d)at352. |
