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Show 274 IDAHO a. IN GENERAL Ground water forming a part of a subterranean stream has always been considered subject to the appropriation doctrine in Idaho. However, some of the early decisions relating to percolating ground water indicated that this source of ground water was owned by the owner of the soil and not subject to appropriation.132 But in 1931 the Idaho Supreme Court expressly rejected the concept of absolute ownership of ground water and said, in effect, that all ground water was percolating ground water and subject to appropriation.133 This rendered meaningless any further legal distinction between under- ground streams and percolating ground water. Of course, ground water underlying a surface stream, or the "underflow" of the stream, constitutes a part of the supply of the surface stream and is subject to appropriation.134 The present Idaho statute simply declares that all ground waters are the property of the State.135 b. METHOD OF ACQUIRING RIGHTS Prior to 1963, ground water rights in Idaho could be acquired by either the statutory or constitutional method of appropriation.136 But in 1963 the Idaho Legislature provided that the right to use ground water could only be acquired thereafter pursuant to the statutory method of appropriation, excepting therefrom use of water for domestic purposes or wells drilled for the sole purpose of draining lands.137 Thus, the present procedure for appropriating ground water in Idaho is the same as the statutory procedure for appropriating surface water. C. PROTECTION OF MEANS OF DIVERSION The Idaho ground water statute provides that the rights of prior ground water appropriators shall be protected in the maintenance of reasonable ground water pumping levels, as may be established by the Director.138 In one Idaho case, the court stated that a ground water user did not have the right to insist that the water table be kept at an existing level for his sole benefit.139 However, in a subse- quent decision, the court enjoined subsequent appropriators where the evidence showed that the prior appropriator's pumps went dry when the junior appropriators operated their pumps. There was no showing whether the junior appropriators offered to pay the addi- tional costs of the prior appropriator in lowering his well and pump- ing from a greater depth.140 d. ADMINISTRATION OF GROUND WATER SUPPLY Recent legislation in Idaho has considerably broadened the au- thority of the Director in the area of ground water, as noted above. ]33Hutchins, The Idaho Law of Water Rights, 5 Idaho Law Review 112, 115 (1968). ™sHinton v. Little, 50 Idaho 371, 296 Pac. 582 (1931). 13i Union Central Life Insurance Co. v. Alorethsen, 50 Idaho 196, 294 Pac. 842 (1930). ]3S Idaho code, sec. 42-226. iae8ilkey v. Tiegs, 51 Idaho 344, 5 P. 2d 1049 (1931). 137 Idaho code, sees. 42-227, 42-228, and 42-229. 138 Idaho code, sec. 42-226. ™Nampa & Meridian Irr. Dist. v. Petrie, 37 Idaho 45, 223 Pac. 531 (1923). u°Noh v. Stoner, 53 Idaho 651, 26 P. 2d 1112 (1933). |