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Show 326 SUMMARIES OF THE STATE WATER RIGHTS SYSTEMS for domestic use and for watering livestock-"the so-called natural pur- poses."118 The supreme court rejected this claim. Ground Waters Definite underground stream.-Subsurface water flowing in a reasonably ascertainable confined channel is subject to the same rules as water flowing in surface streams.119 There is no presumption that any subsurface water in any form is tributary to any stream; one who asserts this to be a fact has the burden of proving his assertion.120 Sub flow of surface stream.-The subsurface supply of a stream, whether it comes from tributary swamps or flows through the porous soil and rocks constituting the bed of the stream, is as much a part of the stream as is the surface flow and is subject to the same rules.121 Percolating ground waters. -Prior to the 1961 legislation discussed below, the Montana Supreme Court announced in dicta that percolating ground waters were subject to use by the overlying landowner, without malice or negli- 199 gence. Legislative provisions.-In 1961, the legislature adopted a prior appropriation 118 Wallace v. Goldberg, 72 Mont. 234, 244, 231 Pac. 56 (1925). il9Ryan v. Quinlan, 45 Mont. 521, 531, 533-534, 124 Pac. 512 (1912). See Hilger v. Sieben, 38 Mont. 93, 94-99, 98 Pac. 881 (1909). 120In Ryan v. Quinlan, 45 Mont. 521, 534, 124 Pac. 512 (1912), the Montana Supreme Court indicated its belief that the stream tributary matter might be established by circumstantial evidence, but stated that the evidence must have so much of substance and probative value as would reasonably exclude the contrary hypothesis. 121 Smith v. Duff, 39 Mont. 382, 390, 102 Pac. 984 (1909). 122Ryan v. Quinlan, 45 Mont. 521, 533, 124 Pac. 512 (1912). See Hutchins, W. A., "The Montana Law of Water Rights" (1958). In a 1970 case regarding the pollution of an adjoining landowner's well, the court, inter alia, said that in Perkins v. Kramer, 148 Mont. 355, 362, 423 Pac. (2d) 587 (1966), involving seepage waters, it had cited the Ryan case, supra, for its quoted statement that " 'The fact that groundwater is not easily traced in its movement is the reason why this court has said: "The secret, changeable, and uncontrollable character of underground water in its operations is so diverse and uncertain that we cannot well subject it to the regulations of law, nor build upon it a system of rules, as is done in the case of surface streams." ' " Nelson v. C & C Ply wood Corp., 154 Mont. 414, 465 Pac. (2d) 314, 321 (1970). But the court also quoted a statement in the 1966 Perkins case that: " 'Modern hydrological innovations have permitted more accurate tracing of groundwater movement. For this reason, we feel that traditional legal distinctions between surface and groundwater should not be rigidly maintained when the reason for the distinction no longer exists. The use of chemical dyes, chloride solutions, and radioisotopes to trace groundwater migration is well-established. More recent tech- niques include the use of electric analogs and computer analysis. These tracing methods require the drilling of test wells as well as geological analysis of the water-bearing structure.' " 465 Pac. (2d) at 321. Nevertheless, in the 1970 Nelson case, the court indicated that the Pennsylvania court in a 1963 case had retained its prior law including an early case relied on by the Montana Supreme Court in the Ryan case. 465 Pac. (2d) at 323-324. |
