OCR Text |
Show ELEMENTS OF WATERCOURSE 61 must be moving in a course and confined within a space reasonably well defined, so that the existence and general direction of the body of water moving through the ground may be determined with reasonable accuracy.197 There was evidence in one California case that, because of the geological formation in a valley, the creek traversing it was not only a surface but a subsurface stream as well.198 The subsurface stream extended a considerable distance on either side of the trough through which the surface stream flowed. When rights to the use of the underflow are in issue, it becomes necessary to establish the lateral limits of this water by competent evidence-often a difficult task. As stated by the California Supreme Court, there may be a point of distance from the stream at which a diversion of such ground water will have so little effect on the stream that it will not be actionable; it is ordinarily a question for the trial court to determine whether or not this is true in the particular case before it.199 The Underflow is a Part of the Watercourse Affinity of surface and subsurface flows. -The portion of the water of a stream that goes along through the ground in association with the surface flow, under the conditions above noted, is as much a part of the watercourse as is the part that flows on the surface.200 Water "passing through the voids of any loose permeable material filling or partially obstructing the channel of a stream is still water of the stream." In an interstate suit over the waters of Arkansas River, the United States Supreme Court disagreed with what "seems to be the contention" of Kansas that beneath the surface of the river there was a second river, with the same course as that on the surface, but with a distinct and continuous flow as of a separate stream.201 The Court was of opinion that the testimony did not warrant the finding of "such second and subterranean stream," and that it was not properly so denominated. Rather, it was to be regarded as merely the accumulation of water in the porous bed of the stream, percolating along either side of the stream as well as in the course of the stream itself. The California Supreme Court has said, "With reference to a stream of the sort that Mill Creek is shown by the evidence to be-that is, a mountain creek flowing in a rocky and precipitous canyon partially blocked by detritus and having many 'narrows'-it is not possible logically to consider the flow and the underflow as separate and distinct sources of water supply."202 It is "well established that the underground and surface portions of the stream constitute one common supply."203 197 Los Angeles v. Pomeroy, 124 Cal. 597, 623-624, 57 Pac. 585 (1899). 198 Peabody v. Vallejo, 2 Cal. (2d) 351, 375, 40 Pac. (2d) 486 (1935). 199 San Bernardino v. Riverside, 186 Cal. 7, 14, 198 Pac. 784 (1921). 200 Los Angeles v. Pomeroy, 124 Cal. 597, 623-624, 631, 57 Pac. 585 (1899). 201 Kansas v. Colorado, 206 U.S. 46, 114-115 (1907). 202 Barton Land & Water Co. v. Crafton Water Co., 171 Cal. 89, 95, 152 Pac. 48 (1915). 203Rancho Santa Margarita v. Vail, 11 Cal. (2d) 501, 555, 81 Pac. (2d) 533 (1938). |