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Show 725 right to such waters if capable of being used upon his lands." 74 The supreme court has held that where the waters of a spring form no part of a natural stream, and cannot reach a stream except when carried along by a flood, the proviso above quoted is applicable;7B but that not- withstanding the proviso, where such water would reach a natural stream if not intercepted, it does not belong to the landowner but is a part of the stream and subject to prior rights thereto.76 A considerable part of the percolating water that feeds the streams flowing through irrigated regions consists of return flow from irrigation. All such water that escapes from the control of the original appropriator, and that would, if left to itself, reach a natural stream by underground percolation, is a part of the stream to the same extent as tributary percolating water originating from natural sources.77 No rule appears to have been announced by the courts with respect to rights of use of percolating water occurring naturally in the ground but not tributary to any watercourse, such as water cut off from a stream by an impervious formation. If such waters are added to a stream as developed, or foreign waters, they may be taken by the person so making them available, or appropriated independently, according to the circumstances.78 Otherwise, however, in view of the consistent water-law philosophy of Colorado, it is reasonable to assume that the 74 Colo. Stats. Ann. 1935, ch. 90, § 20. n Haver v. Matonock, 79 Colo. 194, 196-197, 244 Pac. 914 (1926); Lomas v. Webster, 109 Colo. 107, 110; 122 Pac. (2d) 248 (1942); Webster v. Lomas, 112 Colo. 74, 75,145 Pac. (2d) 978 (1944). nNevius v. Smith, 86 Colo. 178, 180-183, 279 Pac. 44 (1928, 1929); Faden v. Hubbell, 93 Colo. 358, 368-369, 28 Pac. (2d) 247 (1933); De Haas v. Benesch, 116 Colo. 344, 351,181 Pac. (2d) 453 (1947). "In Fort Morgan Res. & Irr. Co. v. McCune, 71 Colo. 256, 261, 206 Pac. 393 (1922), the supreme court stated: "Beginning with the Ramsay case the principle upon which the decisions are based appears to be that water escaping from a reservoir, or ditch, underground, and becoming percolating water which will naturally reach a public stream, must be regarded as a part of the stream. * * * These cases show that it has been held by this court that the question of diligence in attempting a recapture, or the time during which the seepage has run, or the question whether or not the water was appropriated when not needed for direct irrigation, is not material. When it has become, potentially, under the rule above stated, a part of the river, it belongs to the appropriators in the order of their priorities whenever needed." The decision usually referred to as the starting point of the Colorado rule is Comstock v. Ramsay, 55 Colo. 244, 133 Pac. 1107 (1913). For the development of the Colorado rule, see National Resources Planning Board, "State Water Law in the Development of the West", pp. 30-32 (1943). nRipley v. Park Center Land & Water Co., 40 Colo. 129, 133, 90 Pac. 75 (1907); San Luis Valley Irr. Dist. v. Prairie Ditch Co. and Rio Grande Drainage Dist., 84 Colo. 99, 106, 268 Pac. 533 (1928). A person who claims that by his own efforts he has increased the flow of a stream has the burden of proving his contention: Leadville Mine Development Co. v. Anderson, 91 Colo. 536, 537- 538,17 Pac. (2d) 303 (1932). |