§ 69. Appropriator may change place or manner of use.

Whenever a prior appropriation has been made for a certain kind of purpose or use, at a certain place, the appropriator may, as against other parties whose rights have accrued subsequently to his own, change the place of his use for the same purpose, if the amount of water taken by him is not thereby increased beyond that of his original appropriation; and it seems that he may, as against such parties, change the nature of the purpose or use to which the water was applied, provided the amount of water thereby taken is not increased, or the interference with or burden upon the subsequent claimants or appropriators is not augmented. But such a change of place or of purpose is not permitted, as against parties who have acquired subsequent rights, when it would enlarge the amount of water used beyond that of the original appropriation, or otherwise increase the burden imposed upon them by such appropriation. These conclusions seem to be established by the decisions. In Woolman v. Garringer it was held that a prior appropriator for mining pur

2

1[Fuller v. Swan Riv. Min. Co., 12 Colo. 12, 19 Pac. Rep. 836; Greer v. Heiser, 16 Coio. 306, 26 Pac. Rep. 770; Ramelli v. Irish, (Cal.) 31 Pac. Rep. 41. A riparian owner, having the right to divert a certain quantity of water from a stream, may take the same at any point on the stream, and may change the point of diversion at pleasure, provided he does not injuriously affect the right of other appropriators by such change. Junkans v. Bergin, 67 Cal. 267, s. c. 7 Pac. Rep. 684. An appropri ator may, as against a subsequent purchaser from the United States, carry his ditch through such purchaser's lands to a point higher up

the stream, where such a change is rendered necessary to enable him to obtain the supply he is entitled to. Ware v. Walker, 70 Cal. 591, 12 Pac. Rep. 475. And see Sieber v. Frink, 7 Colo. 148, s. c. 2 Pac. Rep. 901. This is also the doctrine of the common law. In Whittier v. Cocheco Manuf'g Co., 9 N. H. 454, it is stated that, where a right exists to use a certain quantity of water for propelling machinery, a change may be made in the mode and objects of the use. and in the place of using it, if the quantity is not increased, and the change is not to the prejudice of others.]

21 Mont. 535.

poses, at a certain place, may extend his ditch, and use his water, to the extent of his original appropriation, at any other place, for the same or for other purposes. Such an appropriator, who has duly constructed his dam and ditch, need not give an actual notice to subsequent appropriators of his intention to extend his ditch, and reclaim his waste water, and use the water at another place. In Maeris v. Bicknell1 the rule was stated that a mere change of the use from one mining place to another, where the appropriation was for mining purposes, does not forfeit nor abandon nor affect the prior right of the appropriator. In McDonald v. Bear River, etc., Co.," after declaring that the appropriation of water for mill purposes stands on the same footing as an appropriation for mining, the court said that when a party has erected a saw-mill, and appropriated the water of a public stream for it, he may use the water for a grist-mill which he subsequently erects. In Kidd v. Laird3 the doctrine on this subject was announced in the following broad and general manner: "A person entitled to divert a given quantity of the water of a stream may take the water at any point of the stream, and may change the point of diversion at pleasure, if the rights of others are not injured by such change. This right of change does not depend upon the mode of acquiring the right to use the water, whether by express grant or by prescription, or whether by parol license or presumed consent of the proprietor. The difference as to the origin of the right affects the mode of determining its existence and its extent, [i. e., the amount of water appropriated,] and not the manner of its exercise and enjoyment." The proper limitation upon this doctrine was stated in the subsequent case of Butte T. & M. Co. v. Morgan, which held that a party appropriating and diverting water at a certain point. cannot afterwards change the place of diversion so as to preju

dice another person whose rights have subsequently accrued. And it was further said that the case of Kidd v. Laird does not hold anything conflicting with this conclusion, and the decision in that case, as there explained and limited, was reaffirmed. In Davis v. Gale' the court again laid down the general rule in the most unequivocal manner: "A person who has appropriated the water of a stream, and caused it to flow to a particular place by a ditch, for a special use, may afterwards change the use, and the place at which he used it, without losing his priority as against one who dug a ditch from the same stream before the change was made. Such a person, appropriating water for the working of a particular mine, may, after he has worked out and abandoned said mine, extend the ditch, and use the water at other points, without losing his priority as against a person who acquired rights in the stream subsequently to his appropriation. Appropriation and use of water for beneficial purposes are the tests of right in such cases, and not the place and character of the particular use." In Nevada W. Co. v. Powell2 the negative side of the rule was again applied, and the court said: "If a person has appropriated a portion of the water of a stream, and has made a dam and ditch amply sufficient to render his appropriation available, and has thereby acquired the right to use said portion only of such water, and in said manner only, this will not prevent other persons from acquiring a right to the surplus water of the stream, or to its bed or banks, or to the adjacent land, to any extent which will not interfere with the right previously acquired. When rights of subsequent appropriators once attach, the prior appropriator cannot eneroach on them by extending his use beyond the first appropri

132 Cal. 26.

234 Cal. 109. The facts of this case, however, to which the decision applies, show an increase in

the quantity of water used,-in the extent of the appropriation,-rather than a change in the place or in the kind of the use.

ation. In such a case the first appropriator cannot extend his claims, or change the manner of his appropriation, to the injury of the second appropriator, any more than the second can do so to the injury of the first; each is, in respect to his own appropriation, prior in time and exclusive in right." On this ground, it was held that the prior appropriator was not authorized, by raising the height of his dam, to cut off or diminish the flow of the surplus water which had been thus appropriated by the defendants.

[A very important qualification of the foregoing rule is developed in a recent decision of the United States circuit court in the district of Idaho. By the law of that state the appropriator of water is required to post a written notice, stating the amount of water claimed and the purpose and place of intended use. It is also provided that he may change the place of diversion, if others are not injured thereby. In the case at bar it appeared that defendant had appropriated water, to be used at a specified place for the purpose of operating machinery and other works, and after so using it he returned it to its natural channel substantially undiminished in volume. It was held that he could not change the place of use and reappropriate the water, to the damage of one who appropriated it lower down on the stream, after it was returned to its original channel. In the course of its opinion the court observed: "The use for which the water is appropriated and to which it is applied is an important factor in the construction of the statute. The controlling question, in any case, is whether subsequent locators have had such notice of prior rights, and their extent and effect, as would guard them against making invalid locations. In illustration, suppose some certain amount of water is appropriated to be used as a power by its conversion into steam, or, by combination with other elements, is to be converted into articles of mer

chandise, or to be used upon some certain tract of land for the purpose of irrigation. Should the appropriator be precluded from thereafter changing either or both,-its use or the place thereof? The reply must be in the negative, for in all such cases the purpose of the appropriation is such that no subsequent appropriator can thereby be misled to his injury. Distinct notice is given in such cases, not only that so much water is drawn from the public supply, but that its appropriation is such that it cannot be used a second time. It is a notice that so much water is practically destroyed,-is eliminated from existence as water. A subsequent locator has actual notice that this amount of water is withdrawn from all public claim, is absorbed, and has become a vested right. He cannot base any claim upon it, or upon any expectation that, some time in the future, it will become the subject of appropriation. Should such prior right be subsequently forfeited, he gains nothing thereby, as his rights are measured alone by what he could, and actually did, claim at the time of his appropriation. Neither does he lose anything, nor is he in any way damaged, should the first appropriator change his use, or the place thereof, for, in either event, he still has left all he ever claimed, or was entitled to claim. The appropriation of water for placer mining purposes, at some specified place, involves a somewhat similar principle. It is such an actual appropriation of a definite amount, and for such purpose, as, in the nature of things, must operate as a notice to all that its place of use must, from time to time, as the ground is worked, be changed. Should one use the water as it passes from the works of the prior claimant, he must do so at his own risk, and he cannot complain that changes are made which he had full notice would likely occur. In this action, however, the facts are quite different. In 1886 the defendant located the water, specifying