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Show 110 ARIZONA 3.2 Nature and Limit of Rights A. NATURE OF RIGHT ACQUIRED Once an appropriation of water is perfected, the owner has a vested right which cannot be interfered with.49 This right is a right to the use of the flow of the watercourse, but it is not private ownership in the stream itself.50 However, the priority of the water right is absolute and the first appropriator is entitled to have his right fully satisfied before a junior right holder may use any water.51 B. MEASURE OF THE RIGHT While the right to use water is a valuable property right, it is not without limitations. A user cannot exceed the quantity of water specified in his right and he is limited to his beneficial requirements. An Arizona statute provides that beneficial use shall be the basis, measure, and limit of the right to use water.52 A user can obtain no right to water he does not use for some beneficial purpose.53 Ordinarily, beneficial use contemplates a reasonably efficient use, so that water is not wasted, but the Arizona Court of Appeals ruled in a rather recent decision that a landowner who instituted water- savings practices on his land had no right to use the water saved and apply it to adjacent ground.54 The court said that the right of the appropriator was limited to that quantity of water which was beneficially used at the time the use was initiated, and that the original right could not be enlarged through increased efficiency in use. After water is used by an appropriator, it sometimes leaves his land and goes upon lands of another, or otherwise becomes avail- able for use by another, without returning to a natural watercourse. Such water is viewed as the "waste water"of the prior user, and sub- sequent users of such water cannot complain if this source of supply is curtailed or eliminated. If subsequent users could establish legal rights in the source of supply of such wastewater, it would freeze the pattern of use of the prior user so as to prevent him from chang- ing, or even modifying, his method of using the water. Wastewater is to be distinguished, of course, from "return flow" waters which return to a natural stream after use, and which may become subject to vested rights of downstream users. In any event, the Ari- zona court, speaking with respect to wastewater, lias said that the prior user may cease his use of water, alter it, or temporarily suspend it, without infringing any right of the person who subse- quently uses the wastewater generated from the prior use;55 but it has also said that when wastewater runs upon the lands of another, he may capture and use it, but that is the extent of his right.56 ^ Adams v. Salt River Valley Water Users' Ass'n., 53 Ariz. 374, 89 P. 2d 1060 (1939). 60 Wall V. Superior Court, 53 Ariz. 344, 89 P. 2d 624 (1939). » Hunning v. Porter, 6 Ariz. 171, 54 Pac. 584 (1898). sa Ariz. Rev. Stat. sec. 45-101. 53 dough v. Wing, 2 Ariz. 371, 17 Pac. 453 (1888). M Salt River Valley Water Users' Ass'n. v. Kovacovich, 3 Ariz. App. 28, 411 P. 2d 201 (1966). M Lamoeye v. Garcia, 18 Ariz. 178, 157 Pac. 977 (1916). M Wedgworth v. Wedgworth. 20 Ariz. 518, 181 Pac. 9512 (1919). |