The issues under the pleadings of this case are as to an appropriation for culinary, irrigation, and stock watering purposes. However, under the evidence and argument submitted to this court on appeal the issues of the use of water for irrigation and stock watering purposes have dropped by the wayside, and the controversy has centered upon the culinary use, and the use of water for power purposes to raise the culinary water to the height of some 32 feet for use in the culinary water system.
The evidence indicates that sufficient water for culinary use arrived at or near the surface of the ground by natural pressure, so that the question is not that of the necessity of raising water for appropriation, but is one of the right to use additional water (over and above the amount necessary for culinary use) to make the culinary water available for distribution throughout plaintiff's culinary water system.
Does this not amount to a claim of appropriation of water for power purposes, and if it does, then how much was so beneficially used? Is there not a difference between supplanting the loss of natural pressure to get water up to the diversion point; and supplanting the manner of its use after diversion? It seems to me that we are discussing, to some extent, the latter in this case. In other words, and using an hypothetical case, if a water user has established a right to 4 or 5 gallons of water for culinary use, but has used 45 gallons to circulate that 4 or 5 gallons through his water system, and the evidence is that his use of so much water for power purposes is 50% or a greater per cent inefficient and wastage, can he acquire any greater right to water for such power purposes, than would eliminate the amount of the wastage? If he acquires a right to the culinary water, plus the water for power purposes in an amount that excludes the wastage, then the question may develop as to whether or not these two quantities arrive at the point of diversion by natural pressure. If they do *Page 426 not, then we come to the picture that seems to be the main point presented by Mr. Justice WADE'S decision which deals with the right an appropriator may have to compel a subsequent appropriator to supplant the natural pressure sufficiently to produce at the point of diversion the quantity of water the first applicant has benefically appropriated.
What do some of the authorities say on this point?
In re Water Rights of Deschutes River and Tributaries,134 Or. 623, 286 P. 563, at page 577:
"An extravagant and wasteful application of water, even though a useful project, or the employment of water in an unbeneficial enterprise, is not included in the term `use,' as contemplated by the law of waters. (Citations) In the latter cases it was held, in effect, that one is entitled to use water only in such quantities and at such times as may be reasonably necessary for some useful purpose, either existing or fairly contemplated in the future, and cannot waste water even for a useful purpose. `Use of water by any one in a legal sense is always qualified by the condition that it must be restricted to such quantity and time of employment only as may be reasonably necessary for the accomplishment of some useful purpose.' The circuit court held that, to allow the company to use continuously a volume of water, such as that claimed for carrying off debris, would be to deprive a large body of land that might be irrigated for agricultural purposes. This of itself, under the code, is a greater use than the use that might be made by the water, as claimed, for carrying off debris. We concur in this finding."
Doherty v. Pratt, 34 Nev. 343, 124 P. 574, at page 576:
"We think, also, it appears from the evidence that the defendants' point of appropriation and diversion is at the dam where Pratt creek intersects Woods creek, and that their prior right to waters of Woods creek should be determined as at this point. Conceding that defendants have a prior right to so much of the waters of Woods creek as will deliver 11 cubic feet per second on the west line of defendant Pratt's land, an amount of water should be decreed at the dam on Woods creek as will supply such an amount of water under reasonable and economical methods of diversion. The rule as to reasonable and economical use of water applies as well to methods of diversion as it does to the application of the water to the land itself. The topography of the country and the character of the soil through which water is conveyed to the point of use must, of course, be *Page 427 taken into consideration in determining the amount of water to which an appropriator is entitled, but an appropriator has no right to run water into a swamp and cause the loss of two-thirds of a stream simply because he is following lines of least resistance. Such method of diversion would not be an economical use of the water providing another reasonable method, under all the circumstances, could be devised to avoid such loss, even though it occasioned some additional expense to the appropriator. It is as much the province and duty of the trial court to determine whether the methods adopted for diversion are reasonable and economical under all the facts of the case as it is to determine the amount of water required by the appropriator at the place of use. There is in most cases a certain amount of loss from the point of diversion to the place or places of use, and, as we have before indicated, this loss will vary according to local conditions. Where, however, in the absence of any showing whatever justifying it, there appears to be a loss of two-thirds of such a large volume of water in conveying it only about three miles, reasonable and economical methods of diversion will not be deemed to have been shown."
Town of Antioch v. Williams Irr. Dist., 188 Cal. 451,205 P. 688, at page 694:
"* * * By moving its pump a few miles up the river it could obtain water free from saline solution. * * * It is evident, from all these considerations, that to allow an appropriator of fresh water near the outlet of these two rivers to stop diversions above so as to maintain sufficient volume in the stream to hold the tide water below his place of diversion and secure him fresh water from the stream at that point, under the circumstances existing in this state, would be extremely unreasonable and unjust to the inhabitants of the valleys above, and highly detrimental to the public interests besides.
"Our conclusion is that an appropriator of fresh water from one of these streams, at a point near its outlet to the sea, does not by such appropriation, acquire the right to insist that subsequent appropriators above shall leave enough water flowing in the stream to hold the salt water of the incoming tides below his point of diversion."
Tudor v. Jaca, 178 Or. 126, 164 P.2d 680, at page 686,165 P.2d 770:
"* * * The amount of water which has been applied to a beneficial use is, of course, a measure of the quantity of the appropriation. Waste of water must not be practiced. Wasteful methods *Page 428 common among the early settlers do not establish a vested right to their continuance. Such methods were only a privilege, `permitted merely because it could be exercised without substantial injury to any one.' (Citations) The use must not only be beneficial to the lands of the appropriator, but it must also be reasonable in relation to the reasonable requirements of subsequent appropriators. * * *
"The best methods for the application of water to the land should be used. No person should be allowed more water than is necessary when applied by a proper system; this, in order that a large area may be made productive by the extended application of such water. All the rights adjudicated in these proceedings are subject to this rule. (Citation)"
Hough v. Porter, 51 Or. 318, 98 P. 1083, at page 1102:
"It is also argued that since, under the old methods in use before the substantial depletion of the flow by subsequent appropriators, Hough and some others, by reason of the excessive water supply, with the aid of a few dams in the channels and sloughs, could irrigate with but little trouble or expense, the recognition by this court of the appropriations made by subsequent locators will thrust upon Hough and others, in order to avail themselves of the quantity awarded them, the necessity of changing their methods of application and use of the water by the construction of ditches, etc., at great expense, all of which would be avoided, were it not for the interference of such subsequent claimants. For this reason it is maintained that the rights of the later settlers and appropriators were acquired subject to the methods in use at the time of the inception of their interests. This feature, however, is similar in principle to that of the farmer who at first may have needed but 100 inches of water and yet constructed ditches carrying three times that quantity, using it in a wasteful manner, and which right he still insists upon by reason of the ditch, when first constructed, being of sufficient capacity to carry the excessive supply. It is well settled that such a claim cannot be successfully maintained. (Citation) It is true, however, that no certain method is necessary to constitute a valid appropriation, so long as the water has been applied to a beneficial use; and this may be done either by ditches or by other methods of diversion and application, such as the placing of dams in the streams and sloughs, and thereby overflowing the land, or subirrigating it, as the case may be. * * * But will it do to say, because in some cases irrigation was had by damming the sloughs, with but little expense and work, causing the large excess of water supply to spread over the premises, that the old methods, which had their origin when there was but little demand for water and its *Page 429 supply correspondingly abundant, may be continued? In this arid country such manner of use must necessarily be adopted as will insure the greatest duty possible for the quantity available. * * * The wasteful methods so common with early settlers can under the light most favorable to their system of use, be deemed only a privilege permitted merely because it could be exercised without substantial injury to any one; and no right to such methods of use was acquired thereby.
"Owing to the little demand and large proportionate supply in use by those along Silver creek and its branches in the early 80's, together with the lack of general knowledge and experience on the subject throughout the state, wasteful methods at that time were, no doubt, common; but of recent years improved means throughout the West have come into use, and a scarcity of the supply has made a more economic use necessary. The result is that the law has become well settled that beneficial use and needs of the appropriator, and not the capacity of the ditches or quantity first applied, is the measure and limit of the right of such appropriators. (Citations.)"
Tulare Irr. Dist. v. Linsay etc., 3 Cal. 2d 489,45 P.2d 972, at page 997:
"An appropriator, as against subsequent appropriators, is entitled to the continued flow to the head of his ditch of the amount of water that he, in the past, whenever that quantity was present, has diverted for beneficial purposes, plus a reasonable conveyance loss, subject to the limitation that the amount be not more than is reasonably necessary, under reasonable methods of diversion, to supply the area of land theretofore served by his ditch. The appropriator is limited to reasonable beneficial uses. A reading of the many cases on the law of appropriation indicates a gradual and consistent tightening of the rule measuring the rights of appropriators. The early cases measured the appropriator's right by the capacity of his ditch, but that rule has long since been repudiated in this state. * * * As the pressure of population has led to the attempt to bring under cultivation more and more lands, and as the demands for water to irrigate these lands have become more and more pressing, the decisions have become increasingly emphatic in limiting the appropriator to the quantity reasonably necessary for beneficial uses. (Citing cases) If the appropriator uses more than the amount so required, he gains no right thereto. An excessive diversion of water for any purpose cannot be regarded as a diversion for a beneficial use. In so far as the diversion exceeds the amount reasonably necessary for beneficial purposes, it is contrary to the policy of the law and is a taking without right and confers no title, no matter for how long *Page 430 continued. (Citing cases) In determining what is a reasonable quantity for beneficial uses, it is the policy of the state to require within reasonable limits the highest and greatest duty from the waters of the state. * * * However, an appropriator cannot be compelled to divert according to the most scientific method known. He is entitled to make a reasonable use of the water according to the general custom of the locality, so long as the custom does not involve unnecessary waste."
Hardy v. Beaver County Irr. Co., 65 Utah 28, at page 41,234 P. 524, 529:
"* * * In fact, the appellant concedes the priority of the respondents' rights to the extent which we have indicated; its contention with respect to the same being only as to the amount of water which the respondents require and beneficially use on the land, for which the water had been appropriated during such period when applied in a reasonably efficient manner.
"Not only the expert witnesses called by appellant, but also the expert witness called by respondents themselves, testified that, with reasonably efficient systems of canals and laterals, the land on both the Milford and Beaver Bottoms, while seemingly unusual in some respects, can be irrigated in the usual manner. Such being the case, it is the duty of respondent so to prepare their land, by leveling or otherwise, that it may be irrigated with reasonable economy in the use of water, to provide themselves with reasonably efficient means for diverting and applying the water to their land * * * and to use the same in the customary manner, at the usual season of the year, to the end that the greatest possible use may be made of the natural resource."
If applicant is not asking for any water for power purposes — and his complaint rather indicates he is not — then the only question is whether or not the amount he does ask for, arrives at his point of diversion. If it does, and that seems to be the fact absent any claim of appropriation for power purposes, then as to how he raises it after appropriation, to a particular use, is his own business. It would seem that a decision upon a variation of location of diversion point is premature.