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Show 238 APPROPRIATION OF WATER definite channels."64 However, the California Supreme Court has held that sur- plus or excess percolating waters above the quantities to which the paramount rights of overlying landowners attach are subject to appropriation for nonoverly- ing uses, such as devotion to a public use or exportation beyond the basin or watershed.65 Nevertheless, as this ground water is excluded from the Water Code declaration just noted, the appropriation procedure provided in the Water Code does not apply to it. The only way in which percolating water can be appropriated in California is by taking the water from the ground and applying it to beneficial use.66 (5) Colorado. Ground waters physically tributary to a stream system, whether originating from seepage and waste from irrigation or coming from natural sources, are held by the courts to be a part of the stream and subject to appropriation to the same extent as waters of surface tributaries.67 This has been the consistent holding of the Colorado courts notwithstanding the proviso in a statute enacted in 1889-and still in effect-declaring that ditches constructed for the purpose of utilizing the waste, seepage, or spring waters of the State shall be governed by the same priority laws as those relating to stream waters, provided that the owner of the lands of origin has the prior right to the water if capable of being used on his lands.68 This point has been noted earlier under "Statutory Declarations-Miscellaneous." WHO MAY APPROPRIATE WATER The legislatures of all Western States which recognize the doctrine of appro- priation have something to say about the qualifications of those who are per- mitted to appropriate water. Some of the statutory provisions are brief, others detailed. Generally, appropriations of water may be made by various persons, public or private group organizations, or governmental agencies and entities. Nongovernmental Applicants Person In providing for appropriation of water within their jurisdictions, the uniform purpose of State legislatures is to subject waters of the State to acquisition of rights of diversion and use by the public generally-pursuant of 64Cal. Water Code § 1200 (West 1956). 6SPasadena v. Alhambra, 33 Cal. (2d) 908, 925-926, 207 Pac. (2d) 17 (1949). 66Katz v. Walkinshaw, 141 Cal. 116, 134-135, 70 Pac. 663 (1902), 74 Pac. 766 (1903). 61McClellan v. Hurdle, 3 Colo. App. 430, 434-435, 33 Pac. 280 (1893); Afewus v. Smith, 86 Colo. 178, 181-183, 279 Pac. 44 (1928); Black v. Taylor, 128 Colo. 449, 459, 264 Pac. (2d) 502 (1953); Genoa v. Westfall, 141 Colo. 533, 349 Pac. (2d) 370, 378 (1960). 68Colo. Rev. Stat. Ann. § 148-2-2 (1963). |