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Show 166 the state" shall be governed by the same laws as control appro- priations from ditches constructed to utilize water of running streams, a statute frequently subject to judicial scrutiny.81 While it reserves a prior right in the owner of lands on which such waters arise, such a right has been held to attach only to waters not tributary to a natural stream, and the right may be lost by prescription.82 A recent case in point also holds that one asserting that water is not tributary has the burden of proof, the natural presumption being that all water finds its way to a stream.83 In another recent case, the Supreme Court of California re- jected a contention that leakage from the Rodriguez Dam in Mexico on the Tijuana River and return flow from an adjoin- ing irrigation project constituted "waste" or "foreign" waters.84 The Court held such waters to be portions of the natural stream flow which, after interruption by storage and use, find their way back into the surface and underground channel of the River and flow over the international boundary, becoming subject to appropriation under the laws of California.85 The foregoing considerations indicate a lack of uniformity in the law respecting return flow. Significant, however, are such recent holdings as that permitting prescription against a land- owner's unexercised right of use in favor of others willing and able to use the water, and the mounting insistence upon widest practicable use of return flow.86 811935 Colo. State. Ann., vol. 3, ch. 90, § 20 and cases there cited. SiLomas v. Webster, 109 Colo. 107, 110-112, 122 P. 2d 248, 250-251 (1942). 83 Be Haas v. Benesch, 116 Colo. 344, 350, 181 P. 2d 453, 456 (1947). 84 Allen v. California Water & Telephone Co., 29 Cal. 2d 466, 482, 176 P. 2d8,18 (1946). 85 Ibid. 88 The Supreme Court of California has said, "It is the policy of the state to foster the beneficial use of water and discourage waste, and when there is a surplus, whether of surface or ground water, the holder of prior rights may not enjoin its appropriation." Pasadena v. Alhambra, 33 Cal. 2d 908, 926, 207 P. 2d 17, 28 (1949). See also Lomas v. Webster, 109 Colo. 107, 111, 112,122 P. 2d 248, 250-251 (1942). Quoting from the Ide case, the United States Supreme Court said in Nebraska v. Wyoming, "The State law and the National Reclamation Act both contemplate that the water shall be so conserved that it may be sub- jected to the largest practicable use." 325 U. S. 589, 635 (1945). |