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Show WASTE, SEEPAGE, AND RETURN WATERS 5 91 Return Waters in International Stream Waters, which having been stored and used in Mexico find their way back into the surface and underground channel of a river and flow therein across the international boundary into California and thence to the sea, upon entering the United States, are held subject to appropriation under the laws of California just as any other waters of the State.137 Return Waters in Interstate Stream In a Federal case arising in Nevada, the effect of return flow from irrigation upon downstream water rights was considered in a controversy over the waters of an interstate stream. Of a quantity of water to which the upper appropriator had the prior right, about two-thirds found its way back into the stream by reason of percolation. Use of the water by the upstream prior appropriator was confined by the court decree to the locality in which it was being used at the time the downstream appropriation was made, the junior appropriator being entitled to a continuance of conditions then existing.138 Claim of Equivalent Diversion for Return Flow Two cases arising in Montana, one decided by the Montana Supreme Court and the other by the United States Court of Appeals, involved appropriators who claimed that they were entitled to divert water in excess of their decreed appropriative rights as compensation for return flow from their lands during the period of such excess diversions. In the case decided by the Montana Supreme Court in 1919, an appropriator had been adjudged guilty of contempt for opening his headgates and using water after the commissioner had closed them for the benefit of prior appropriators. Zosel, the relator, claimed that his use of the water did not impair the right of any prior appropriator; that by means of early irrigation of his land there was created on his land a subterranean storage system from which, during the later irrigation season, as much water as he was using through his ditches seeped back to the stream; and that this condition prevailed at the time of the alleged contemptuous action.139 The supreme court stated that for the purpose of exonerating himself from a charge of contempt, and for that purpose only, it was competent for the relator to show that by his own efforts he had developed an independent source of supply and that the quantity of water used by him did not exceed the amount so developed. He could not, in this proceeding, establish his right to the use of the so-called developed water as against prior appropriators, 137Allen v. California Water & Tel. Co., 29 Cal. (2d) 466,482,176 Pac. (2d) 8 (1946). 138 Vineyard Land & Stock Co. v. Twin Falls Salmon River Land & Water Co., 245 Fed. 9, 28-29 (9th Cir. 1917). 139 State ex rel. Zosel v. District Ct., 56 Mont. 578,580-581,185 Pac. 1112(1919). |