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Show ARIZONA 113 water right of equal priority, he is estopped from subsequently denying the other's right.69 Also, the long-continued use of a ditch to conduct water which was claimed under an absolute and permanent right and acquiesced in not only by silence but by affirma- tive acts and conduct gave more than a mere revocable license, and the doctrine of estoppel by acquiescence prevented the landowner from denying plaintiff's right to use the ditch.70 3.5 Storage Waters, Artificial Lakes, and Ponds Unappropriated water may be stored upon the filing and approval of an application to appropriate. The person proposing to apply the stored water to beneficial use is required to file an application for a secondary permit and shall obtain a written agreement from the owners of the reservoir for the use of the water. When the beneficial use has been accomplished, a final certificate is issued which shall refer to both the conduit described in the secondary permit and the reservoir described in the primary permit.71 3.6 Springs The Arizona Supreme Court, in one relatively early case, ex- pressed the view that a spring which did not constitute the source of a watercourse belongs to the owner of the land who may appropriate its entire flow.72 However, with the enactment of the Arizona water code in 1919, springs on the surface were declared to be property of the public and subject to appropriation pursuant to the statutory procedure.73 In a decision following the enactment of this legisla- tion, the Arizona Supreme Court held that the water of a spring, which had a flow insufficient to flow beyond a landowner's bound- aries, was nevertheless subject to appropriation.74 Springs on the sur- face, within the purview of the statute, are those which emerge naturally from the earth without artificial assistance, as distin- guished from percolating ground water developed by tunnels or wells.75 However, in a recent decision it was held that a spring is appropriable if its waters do no more than ooze or percolate out of the ground, if its waters form the basis for a stream. It was further held that a valid appropriation of a spring could be ac- complished prior to 1919 by putting the water to beneficial use.76 3.7 Diffused Surface Waters Diffused surface water, or "surface water" as it is characterized by the Supreme Court of Arizona, is water falling upon the land from seasonal rains or melting snows. Such waters naturally spread over the land before finding their way to a natural watercourse.77 «• Dalton v. Rentaria, 2 Ariz. 275, 15 Pac. 37 (1887). ""> Wedgworth v. Wedgworth, 20 Ariz. 518, 181 Pac. 952 (1919). ™ Ariz. Rev. Stat. sees. 45-142, 151. ™McKeneie v. Moore, 20 Ariz. 1, 176 Pac. 568 (1918). 73 Ariz. Rev. Stat. sec. 45-101. i* Parker v. Mclntyre, 47 Ariz. 484, 56 P. 2d 1337 (1936). ^Fourzan v. Curtis, 43 Ariz. 140, 29 P. 2d 722 (1934). ™ England v. Ally Ong Sing, 105 Ariz. 65, 459 P. 2d 498 (1969). ""Southern Pac. Oo. v. Proeoatel, 61 Ariz. 412, 150 P. 2d 81 (1944) ; Kirkpatrick v. Butler, 14 Ariz. App. 377, 483 P. 2d 790 (1971). |
