titled to draw off by his means of diversion. (3) When a prior appropriator takes and uses the whole or any portion of the water of a stream, for milling or other similar purposes, by which the water is not consumed, and then after such use returns the water to the stream so that it thenceforth flows down its natural channel, a subsequent appropriator lower down the stream may appropriate and obtain a vested right to the whole or any part of the same water so discharged and flowing down the natural channel after its former use. [If the lower appropriator has appropriated only the water which the upper appropriator allows to pass, the lower appropriator does not acquire a right, as against the upper appropriator, to a supply of water sufficient to fill his ditch.1 Where the water in the ditch is more than sufficient for the wants of the upper proprietor, and greater in amount than he has appropriated, the lower proprietor is entitled to the flow of the surplus; but in a season of drought, during which the flow of the water is greatly diminished, the lower proprietor is not entitled to enjoin the upper proprietor from using such an amount of the water as is within his original appropriation, though such use leaves little or no surplus for the lower proprietor.2] (4) When a prior appropriator takes and uses a certain portion or quantity of the water from a stream, and by the nature of his use consumes the same without restoring it or any part of it to the stream, then the surplus or residue of the stream not so diverted but continuing to flow down the natural channel, or any part thereof, may be subsequently appropriated by another party lower down the stream, and his rights of appropriation in such surplus or residue will be vested and perfect. (5) In all these conditions, a subsequent appropriator may appropriate and obtain a vested right to use 1 Lakeside Ditch Co. v. Crane, 80 Cal. 181, 22 Pac. Rep. 76. the water during the fixed intervals of time when it is not taken and used by the prior appropriation. All the possible cases which can arise may be accounted for and explained by a combination among the foregoing general conditions of fact. Whenever successive appropriations have been properly and lawfully made on the same stream, each party is, with respect to the extent of his appropriation,—the amount included therein,—in the legal position of a prior appropriator towards all the others.' [In Colorado, the constitution provides that "priority of appropriation shall give the better right as between those using the water for the same purpose, but when the waters of any natural stream are not sufficient for the service of all those desiring to use the same, those using the water for domestic purposes shall have preference over those claiming for any other purpose." But it is held that this does not authorize an interference with the rights of prior appropriators for irrigation purposes, vested before the adoption of the constitution, in order to supply water for domestic purposes to later comers.2 Where, by common consent, a municipality has for many years regulated the appropriation of the waters of a certain river for irrigation purposes, by allowing a pro rata distribution among the appropriators in case of deficiency, it has no right subsequently to divide the appropriators into two classes, according as their use began before or after a certain arbitrary date, and to restrict only those of the second class; but all must be served alike.3] [Where old ditches are superseded by agreement by a new one, and nothing is said in regard to the division of the water, the rights of the parties are to be determined according to their original appropriations, and not according to their interests in the new ditch. Rominger v. Squires, 9 Colo. 327, 12 Pac. Rep. 213.] 2 Armstrong V. Larimer Co. Ditch Co., 1 Colo. App. 49, 27 Pac. Rep. 235. 3 Holman V. Pleasant Grove City, (Utah,) 30 Pac. Rep. 72. § 93. Division of increase in stream. In addition to the general doctrine thus stated and illustrated, the following special rules, applying to particular circumstances, have been the subject-matter of decision. If two persons successively appropriate water of a stream by means of their ditches, and a third person turns into the same stream, at a place higher up than the heads of both these ditches, additional water brought by means of his own ditch from another and different stream, without any intention of recapturing the same, the water thus discharged becomes publici juris,—to all intents a part of the natural waters of the stream into which it is emptied; and it belongs to the two appropriators according to their priority of right, -the one having made the prior appropriation is first entitled to the increased flow to the extent of his appropriation.' A person who had located a mill-site on a stream, and appropriated the water for the purposes of his mill, sold and conveyed all his interest in the water of the stream to the proprietor of a ditch above him. Held, that he had not thereby lost his prior right to the water which still flowed down the stream after such sale, as against a third party who had appropriated the water below him subsequently to his original appropriation, but before his said sale and conveyance.2 § 94. Wrongful diversion of springs. In the case of Strait v. Brown3 the supreme court of Nevada decided a point which may be of much practical importance. Although no distinction, in general, exists between waters running under the surface in defined channels, and those running in such channels upon the surface; and although water percolating through the ground below the surface is not governed by 1 Davis v. Gale, 32 Cal. 26. 2 McDonald v. Askew, 29 Cal. 200. 316 Nev. 317. the same rules which pertain to running streams,—still, subsequent appropriators cannot, as against the prior appropriator of the same stream, lawfully acquire rights to the waters of the springs which constitute the source of such stream, simply because the means through which the waters are conveyed from the springs to the stream are subterranean, and not well understood nor defined. In other words, the subsequent appropriators on a stream cannot cut off and destroy or impair the rights of the prior appropriators by tapping the very springs themselves which constitute the sources of the stream, under color of a right to reach subterranean and percolating waters.1 [Where a stream, from time immemorial, has flowed through plaintiff's land in a perceptible current and in a well-defined channel, his right to have such flow continued is not affected by the fact that the source of the stream is a spring on defendant's land.2 (But the supreme court of California, in a recent case, has decided that the fact that a person has appropriated water from a stream fed by a spring on another's land cannot prevent the owner of the land from digging trenches for a useful purpose, and thereby diverting the percolating waters which supply the spring.3] § 95. Right to tributaries of stream. [In the case of a natural water-course fed by tributary streams, the appropriator of water from the main stream must be regarded as vested with the right to control the tributaries to the extent of his appropriation. That is to 1 For further special applications, see Nevada W. Co. v. Powell. 34 Cal. 109; Reynolds v. Hosmer, 51 Cal. 205. The particular facts and rulings in these cases have been sufficiently described under previous sections. See, also, Leonard v. Shatzer, 11 Mont. 422, 28 Pac. Rep. 457. 2 Chauvet v. Hill, 93 Cal. 407, 28 Pac. Rep. 1066. 3 Southern Pac. R. Co. v. Dufour, 95 Cal. 615, 30 Pac. Rep. 783. say, if he has acquired the right to divert and use all the water of the main stream, no other persons can subsequently appropriate the waters of the tributaries, except upon the condition that they return the whole of the water taken, not diminished in volume and not deteriorated in quality, before it reaches the place of the prior appropriator's diversion. And if he has appropriated a part of the water of the main stream, any subsequent appropriations from the tributaries must be subject to the condition that the flow of water in the main stream be not thereby diminished below the extent of the prior appropriation.1 Thus, in Idaho, it is said that prior appropriation of all the waters of a stream, applied to a useful purpose, gives the better right to the tributaries and all the direct and immediate sources of supply of the stream, and when this right once vests, it must be protected and upheld. Rights cannot be acquired to the waters of springs situated along the channel of the stream, and which constitute its direct source of supply, by entering upon and cleaning out the same, and thereby increasing the water-supply, as against prior appropriation in good faith of the whole of the waters of the stream.2 In a case in Utah, the action being brought to establish a right to all the waters of a certain creek, it appeared that it was fed by two tributaries which furnished about one-third of the water. Plaintiff's grantors had not appropriated all of the waters of the creek prior to the appropriation by defendant's grantors of nearly all the waters of the tributaries, and the water appropriated by defendant ran off his land into the creek, so that its flow was not materially lessened during part of the irrigation season. It was held that plaintiff was entitled only to the amount of water appropriated by his grantors, 1 Strickler v. City of Colorado Springs, 16 Colo. 61, 26 Pac. Rep. 313. 2 Malad Val. Irr. Co. v. Campbell, (Idaho,) 18 Pac. Rep. 52. LAW W. R.-12 (177) |