THE IRRIGATION AGE. 



Recent Legal Decisions on Irrigation 

 and Related Rights 



BIGHTS AS TO CHANGING POINTS OF DIVERSION, AND 

 OF JUNIOR AFFROFRIATORS. 



The supreme court of Colorado says, in Vogel vs. Minne- 

 sota Canal & Reservoir Co., 107 Pacific Reporter, 1108, that 

 the right, in an owner of a water priority for irrigation, to 

 change the point of diversion is not absolute is well settled. 

 It is a qualified right, and its exercise is conditional upon 

 the fact that such change will not injuriously affect the 

 vested rights of others. Such has been the uniform holding 

 of this court through an unbroken line of decisions, beginning 

 with Fuller vs. Swan River Co., 12 Colo. 12, down to the 

 present time. 



\Vhile it is true that the right to change the point of 

 diversion is a property right, it is one which may not be 

 exercised without limitation, or at all, except upon terms, 

 where it appears that such change will impair the vested 

 rights of others. No inflexible rule, applicable in all cases 

 where such change is sought, can be laid down. The right 

 to have the change made depends upon, and must be con- 

 trolled by, the facts of each particular case. 



It seemed manifest in this case that if certain priorities 

 were diverted through certain ditches, as proposed, and us^d 

 constantly through the irrigating season, as was intended, 

 that, after the season of low water in each year set in, no 

 water would remain in the stream for the use of any junior 

 appropriator for any purpose, but on the contrary the stream 

 would become dry. In the face of the showing that, for from 

 fifteen to twenty years prior to the commencement of these 

 proceedings, all junior appropriators of water on the stream 

 had practically, at all times, been able to grow and mature 

 crops, the result above suggested, which the proof showed 

 was likely to occur, clearly established that such proposed 

 rhanye in the point of diversion would alter the conditions 

 theretofore, and at the time junior appropriators secured their 

 rights, existing on the stream, in such a way as to not only 

 injuriously affect, but completely destroy, those rights. 



Further, where one has the first priority on a stream, 

 taking water out at the lowest point thereon, it does not 

 follow that junior appropriators, up the stream, must at all 

 times and under all conditions, let sufficient water remain 

 therein to flow past their headgates to supply that priority. 

 The senior appropriator may lawfully demand that he have 

 at his headgate sufficient water to supply his present needs, 

 and if that result be obtained through return waters after first 

 11 so by junior appropriators up the stream, the senior appro- 

 priator has no just ground of complaint. 



This court has often said, in substance, that a junior 

 appropriator of water to a beneficial use has a vested right. 

 as against his senior, in a continuation of the conditions on 

 the stream as they existed at the time he made his appro- 

 priation. If this means anything, it is that when the junior 

 appropriator makes his appropriation he acquires a vested 

 right in the conditions then prevailing upon the stream, and 

 surrounding- the general method of use of water therefrom. 

 He has a right to assume that these are fixed conditions and 

 will so remain, at least without substantial change, unless 

 it appears that a proposed change will not work harm to his 

 vested rights. 



RIGHTS OF OWNER OF LAND CONTAINING WATER- 

 BEARING STRATUM AS AGAINST AFPROFRIATORS, 

 ESPECIALLY FOR USE BEYOND WATERSHED. 



The supreme court of California says that the precise 

 question raised in the case of Miller vs. Bay City Water Co.. 

 107 Pacific Reporter, 115, as to the respective rights of an 

 appropriator of water to he used beyond the watershed, and 

 of one claiming an uninterrupted flow of these waters to 

 supply, by percolation, a water-bearing stratum underneath 

 his land and connected with the stream, has not been hereto- 

 fore presented. 



It would be a waste of time to particularly discuss the 

 reasons which impelled the modification of the common-law 

 doctrine of an absolute right in each landholder" to abstract 

 all percolating waters underneath his land and dispose of 

 them as he saw fit, without regard to what extent he might 

 deplete these waters under the lands of his neighbors. The 

 climatic conditions of California, the great stretches of arid 

 and semi-arid lands, the uncertainty of the seasons and vary- 

 ing rainfall, the necessity of irrigation, and the vast supe- 

 riority of underground waters as a steady and ready means of 

 irrigation over the uncertainty of a similar supply from a 

 surface stream which, Tn many instances becomes dry at the 

 very time when irrigation is necessary; the vast areas of land 

 brought under cultivation and production by irrigation, and 

 additional areas still to be improved by it: the enormous 

 draft which this constant improvement and cultivation make* 

 on a supply which is limited, and which will become inad- 

 equate for all as population increases and additional lands are 

 to be brought under cultivation and improved by irrigation 

 these, and many other causes, impelled a departure from the 

 old doctrine and a limitation of it, and the adoption of the 

 just principle that a common and essential necessity water 

 when supplied to well-defined strata from whatever source, 

 should be preserved to lands overlying them for reasonable 

 use upon them. 



The right of a person owning land upon a channel of 

 underground water is not measured by whether the water is 

 under pressure or not. but by considering whether the waters 



come to him in a natural defined flow so as to constitute a 

 part or parcel of his lands. 



The owner of land having an underground water-bearing 

 stratum supplied by the flood waters of a steam has a 

 primary right to the full flow of such waters, in order to 

 bring his stratum up to its water-bearing capacity. In 

 torrential streams floods vary in extent with different sea- 

 sons and in different years, and those of one season or one 

 year may be insufficient to supply the underground stratum 

 connected with the stream, while those of another season 

 or year may be more than sufficient. While the owner of 

 the underground stratum is only entitled to the flow of the 

 flood waters to the extent that they may replenish his water- 

 bearing stratum, still his right to the accustomed flood flow 

 of the stream for that purpose is paramount to that of the 

 right of an appropriator to divert any of the waters beyond 

 the watershed. If the accustomed flow is more than neces- 

 sary to supply the underground stratum, the burden of proof 

 is upon the appropriator seeking to appropriate the sur- 

 plus to show that there is a surplus. 



As between riparian owners, it was conceded, as the law 

 declares, that one riparian owner is not entitled to divert 

 the waters of a stream for use at some distant point for 

 commercial purposes so as to prevent another riparian owner 

 to whom they would otherwise be available from using them 

 on his lands, and it is established by the authorities that, 

 as between owners of land overlying a common substratum 

 of percolating water, this cannot be done. This beiiiK su. 

 the court perceives no reason why the same rule should not 

 be applied as between owners of land overlying a substratum 

 of water directly connected with either the surface or sub- 

 surface flow of the stream, and deriving practically its ex- 

 clusive supply from that source. The theory upon which 

 tin- right of a riparian owner to be protected in the use of 

 the waters of a stream to which his lands are riparian is 

 that, nature having given these lands the benefit of the 

 (low. and the natural advantage of its use on the lands, one 

 riparian owner may not divert these waters to lands not 

 riparian, to the injury of another riparian owner who can 

 use them. The same principle has been applied to the use 

 of waters as between the owners of lands overlying a com- 

 mon stratum of percolating waters. And the court per- 

 ceives no reason why the same principle should not be 

 applied as between an appropriator of the waters of a 

 stream to be taken beyond the watershed for commercial 

 purposes and the owners of lands overlying an artesian 

 stratum which is conclusively shown to be so connected 

 with the stream as to derive its supply of water by per- 

 colation therefrom to this stratum. Why, in principle 

 should there be any distinction? With the common-law doc- 

 trine modified to meet the conditions in this state necessi- 

 tating it, and modified so as to preserve to each owner of 

 lands overlying a common stratum of percolating waters 

 a right to a fair and reasonable use of these waters of which 

 their lands have a natural advantage, no reason suggests its"lt" 

 why the same rule should not apply as between the appro- 

 priators of the waters of a stream for use elsewhere than on 

 riparian lands and the owners of lands overlying a water- 

 hearing channel, so directly connected witli the stream as 

 to be supplied by percolation from it. 



Ijands are invariably purchased in view of the benefits 

 which they may derive from being riparian to a stream or 

 overlying well-supplied strata of water, the right to the 

 flow or extraction of which is a part and parcel of the land, 

 and there is no rational basis for any distinction between the 

 classes as to the right to prevent a diversion of waters for 

 use elsewhere, whether it be attempted by a riparian owner 

 against another riparian owner, or by one owner of land 

 over a common stratum of underlying water against another 

 owner, or by an appropriator of the waters of a stream as 

 against the owner of land overlying the water-bearing stratum 

 directly supplied by percolation from the stream. As far 

 as the owner of lands overlying a gravel stratum is con- 

 cerned, it makes no difference in his rights, as against an ap- 

 propriator of the water, from what source the supply comes 

 which directly supplies his water-bearing stratum whether 

 from a stream or a saturated plane or other body of water 

 which by natural flow or percolation, either surface or sub- 

 terranean, clearly supplies his underground stratum. It would 

 present an anomalous condition of the law were it the rule 

 that, while a riparian owner may prevent an appropriator 

 from diverting to his injury the waters of the stream for use 

 beyond the watershed, and one owner of land overlying a 

 common stratum of percolating water may restrain another 

 owner similarly situated from making a like diversion. I lie 

 owner of lands whose underlying stratum of water is directly 

 and clearly supplied by percolation from the waters of the 

 stream, and who will be greatly injured by a diversion, is 

 not entitled to prevent it. There is no reason or any dif- 

 ference in the rule between the classes and none should exist. 

 Such landowner has a right to restrain a diversion from the 

 stream or saturated plane, or other well-defined supply, by 

 an appropriator or any one else who seeks to divert such 

 stream or other supplying waters from their natural per- 

 colating flow, for use elsewhere than upon lands to which, as 

 waters of the stream, they are riparian, or which, as waters 

 of an underground stratum, may reasonably and usefully be 

 applied to the overlying land. 



There can be no question but that an appropriator of 

 water may divert for use, to any point beyond the watershed, 

 any portions of the waters of a stream which can serve no 

 useful purpose either to the riparian owners, or which might 

 serve no such purposes in supplying the underground stratum 

 of a landowner, or which are in excess of the quantity neces- 

 sary for that purpose. But it is quite obvious that merely 

 because waters are flood or storm waters of a stream -that 

 is. on account of unusual rains the waters of a stream are 

 increased beyond the normal flow these flood or storm waters 

 are not therefore surplus waters of the stream which serve 

 no useful purpose, and are subject to appropriation. 











