| OCR Text |
Show 34 SURFACE WATERS Such applicant would be entitled to have his application approved over the protests of those owning "senior" rights, because such water is not subject to the senior rights since those rights did not contem- plate the new source of water when they were acquired. An analogous situation would be that of an appropriator who ac- quired an approved application to appropriate from a tributary and then discovered that during certain periods of the year he could not obtain the water applied for; and who then attempted to change his point of diversion to divert the balance from the main stem, as supplied from other tributaries. He would not be permitted to do this, since his application limits him to the water available in the tribu- tary upon which he filed his application to appropriate. (2) AVOIDING WASTE IN DIVERSION AND USE The concept of beneficial use has two aspects. One relates to the type of use and the other relates to the method of use. With respect to the type of use, it has already been observed that any water use must be beneficial before rights can be acquired, and that such uses historically were for irrigation, mining, manufacturing, industrial, municipal, domestic, and other economic-related purposes. With re- spect to method of use, appropriation law has always required water to be used beneficially, that is, with reasonable efficiency. If water is used inefficiently, so that the use is wasteful, it is an il- legal use, and is beyond the scope of the appropriation right. There is considerable confusion in some cases and treatises in distinguish- ing between a beneficial kind of use and a beneficial method of use, and it is frequently said that a wasteful use is not a beneficial kind of use and therefore no water right can be acquired. This is a mis- conception. If the kind of use is beneficial (and this does not involve a question of waste), then a valid water right may be acquired; and then the question is whether the method of use under the right is rea- sonably beneficial (that is, whether it is efficient and nonwasteful). If the method of use is unreasonably inefficient, then the differ- ence between the amount of water actually diverted and the amount reasonably required under an efficient use is the amount that is being wasted. Thus, the water right is valid, but the appropriator can be required to improve his efficiency and to avoid committing waste. And this applies to waste of water by excessive or unnecessary appli- cation (as an unneeded irrigation) as well as inefficient facilities (such as ditches that lose exhorbitant amounts to seepage). More difficult questions are encountered with respect to rights of use in the water that previously was being wasted but is salvaged through improved efficiency. While the cases are not uniform, the most logical rationale requires a further distinction: If the water in question was truly water that had been wasted in the legal sense, the appropriator never acquired a right to use it because he never applied it to a beneficial use, and the water so saved must be returned to the stream system for use by others; however, if the sal- vaged water results from increased efficiency in a use which was not wasteful in the legal sense (inefficient uses are legal if they are not unreasonably inefficient), then such water may properly belong to |
