| OCR Text |
Show 24 CLASSIFICATION OF AVAILABLE WATER SUPPLIES may contain undivided segments of commingled waters to which different rights of use may attach. The point of diversion of water from a natural water supply is an element of the right to make such diversion. The exercise of this right at this place depends upon rules that pertain to the particular source of supply-for example, a watercourse-which in a given jurisdiction may be different from those that pertain to another source such as a supply of percolating ground water. In many instances, these rules have been formulated without due consideration for the physical interrelationships of the several components of common water supplies. This has come about in certain situations, for example, because rival claimants of rights in a ground water supply have litigated their rights as between themselves, without intervention by claimants of rights to waters of a surface stream to which the ground waters involved in the litigation were physically tributary; and the result of such decisions has been to establish a rule of property, repeated and reemphasized in subsequent decisions, and therefore difficult to overturn in later years when these physical relationships had become more clearly recognized. In some States there has been a measure of correlation between rights to the use of waters of various interconnected sources of supply-or common water supplies, while in others there has been little or none. Furthermore, in some jurisdictions, rights to some of these available sources of supply have not yet been adequately defined. Most water to which rights of use attach comprises (1) water of water- courses and (2) percolating ground water. Of these, by far the larger amount of statutory and case law relates to watercourses, although in the last few decades, with the marked development of pumped water supplies that has occurred in various jurisdictions, the ground water share of the total has materially increased. Principles governing rights to the use of water of surface streams were formulated, applied, and in greater or less degree established, and substantial experience in their administration was acquired, before the ever-increasing use of ground water was well underway. In the Western States, most of the legislation dealing with water rights in streams governs appropriative rights; and in some of them, much of the litigation over stream water rights has been concerned with conflicts between the appropriation and riparian philosophies. Likewise with respect to ground water rights in the West, there has been a somewhat comparable experience-much of the legislation and litigation has been concerned with efforts to apply to percolating ground water, often in the face of conflicting rules previously applied or claimed to have been applied thereto, the law of appropriation as developed with respect to surface watercourses in the particular jurisdiction, with only such variations as were required by differences in the physical occurrence and behavior of these surface and subterranean water supplies. |
