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<br />ti01547
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<br />LEGAL ASPECTS
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<br />Most legal problems affecting or resulting from the development
<br />of stock ponds in the West, revolve around the question of interference
<br />with existing rights on sources of supply which are assumed to be fully
<br />appropriated. Any development of stock ponds must be made with due
<br />regard for the legal rights of the pr ior appropriators on the source in
<br />question.
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<br />Where unappropriated water is available, it may be used for
<br />stock ponds by complying with the law of the particular State where the
<br />appropriation is being made. Water is available for stock pond use in
<br />any given area only if it has not been previously appropriated for bene-
<br />ficial use. One type of unappropriated water available for stock ponds
<br />might be that acquired through savings. However, to protect the prior
<br />appropriators on any system, such savings development should be made
<br />only after careful planning. Such planning should guarantee, as far as
<br />possible, a protection of all prior rights before development is made.
<br />Further, the burden rests upon the individual asserting the development
<br />of savings to prove that he is not interfering with prior rights.
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<br />State R equ irements
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<br />Generally flood waters captured and stored on a "dry wash, "
<br />from which surface runoff has never historically reached a live stream,
<br />could not injure downstream water users. Whether capturing flood
<br />waters on any drainage, would deplete the stream at a downstream point
<br />of divers ion or us e is dependent on the particular facts in each case.
<br />Depending on the State statu,tes wheth,er "to proceed under a change of
<br />application which moves an exist ing right to the new development, or
<br />whether to proceed under a completely new application depends on the
<br />results of determinations of interference. If a new application to appro-
<br />priate is not proper and if the economics of the proposed development
<br />are sound, then an existing right can often be purchased, and in most
<br />States, a change filed or transfer of the right made to take care of the
<br />new us e.
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<br />Many decisions in We~tern water law deny to a downstream prior
<br />appropriator the right to enjoin upstream diversion under a junior right
<br />if the resulting streaIDflow would 'not reach the senior's headgate or
<br />point of diversion, or if the quantity reaching it is so small that it would
<br />have no beneficial value to the latter. At certain seasons, stock ponds
<br />might be replenished under a junior right and the flow, if uhinterrupted.
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