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The policy of the law against the waste of irrigation water cannot be misconstrued or misapplied in such manner as to permit a junior appropriator to take away the water right of a prior appropriator. The fact that some of the water would be lost by evaporation or percolation would not afford the junior appropriator any right to divert it.
At the times here involved both parties were owners of rights to the use of water for irrigation from Spring Creek, in Lemhi County. Both rights were adjudicated by the Morrow-Wagoner decree in 1910. The right held by plaintiffs (appellants) was decreed to have a priority date of February 10, 1893, and the right held by defendant (respondent) was decreed to have a priority date of July 15, 1900. Plaintiffs brought this action for damages resulting from defendant's alleged interference with plaintiffs' water right and to enjoin future interference therewith. Running generally from southeast to northwest and roughly parallel to a bluff a short distance to the northeast, Spring Creek traverses a marshy, swampy area and is fed by springs on both sides. Mr. Wells' ditch also extends from the southeast to northwest, and lies between Spring Creek and the bluff roughly parallel to the creek, and varying from one-eighth to one-quarter mile distant from the creek. The ditch draws water from springs upstream from plaintiffs' point of diversion on Spring Creek. Defendant Wells has no other diversion from Spring Creek. The district court found that the springs were not tributary to the creek.
Was the water from the springs, along the upper side of the Wells ditch, which flows into the ditch, tributary to Spring Creek?
In reversing the judgment for the defendant, the court held there was no evidence to support the finding of the district court. To the contrary, the evidence, including some adduced by defendant, indicated a general flow of water from the springs and indeed from the surface to the creek. This natural flow was captured by levees and dykes built into the natural terrain and channeled into the ditch. The court also held that the defendant had not appropriated the water by prescription. Although this flow had been diverted continuously for five years, the diversion had affected the prior appropriators' rights in just three of these years, insufficient to satisfy the five-year period adverse use period. The defendant also failed to show any waste of water that would effect an abandonment of the right.