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Show 730 remains or has remained for many years as to the repudiation of the riparian doctrine in Idaho.100 The appropriation statute, as noted above, includes "subterranean waters" in the classes of waters named as subject to appropriation. The supreme court has rendered several decisions with respect to rights to the use of ground waters which, while not uniform in the development of principles, with one exception have tended toward the doctrine of appropriation101 and finally have embraced that doctrine completely.102 Percolating waters, like waters of surface streams, may be appropriated either by the statutory permit method or by actual diversion and appli- cation to a beneficial use; and "a valid appropriation first made under either method will have priority over a subsequent valid appropriation however made." 103 Water rights in Idaho may be adjudicated only in proceedings ini- tiated by claimants of rights to the use of water. The water-rights statute originally provided for the bringing of suits by State water com- missioners for the adjudication of water rights, but the sections in ques- tion were declared unconstitutional by the State supreme court.104 However, the supreme court has upheld the validity of a section author- izing the judge, if a suit is brought for the purpose of adjudicating water rights, to request the State Department of Reclamation to make and furnish a hydrographic survey of the stream in litigation.108 The statutes provide for the distribution of water under the immediate direction and control of the Department of Reclamation; for the crea- 100 Jones v. Mclntire, 60 Idaho 338, 352, 91 Pac. (2d) 373 (1939); Schodde v. Twin Falls Land & Water Co., 224 U. S. 107 (1912). 101 For decisions prior to 1922, apparently leaning toward the appropriation doctrine, see: LeQuime v. Chambers, 15 Idaho 405, 413-414, 98 Pac. 415 (1908); Bower v. Moorman, 27 Idaho 162, 181, 147 Pac. 496 (1915); Jones v. Vanausdeln, 28 Idaho 743, 156 Pac. 615 (1916). In Public Utilities Commis- sion v. Natatorium Co., 36 Idaho 287, 300, 305, 306, 211 Pac. 533 (1922), it was held that percolating water, as distinguished from water in a defined under- ground stream, was not public water but belonged to the owner of the soil, hence a company delivering such water to consumers was not a public utility. In Union Central Life Insurance Co. v. Albrethsen, 50 Idaho 196, 202-204, 294 Pac. 842 (1930), waters of a natural ground-water storage basin supplying the flow of a stream were held subject to appropriation. ™Hinton v. Little, 50 Idaho 371, 379-380, 296 Pac. 582 (1931); Noh v. Stoner, 53 Idaho 651, 652-653, 26 Pac. (2d) 1112 (1933). ™Silkey v. Tiegs, 51 Idaho 344, 351-353, 5 Pac. (2d) 1049 (1931). 101 Bear Lake County v. Budge, 9 Idaho 703, 75 Pac. 614 (1904). 10B Idaho Code, § 42-1401. The section states that the judge "shall" request the Department to make the examination. The supreme court, in Boise City Irr. & Land Co. v. Stewart, 10 Idaho 38, 57, 77 Pac. 25, 321 (1904), held that this legislative declaration was directory, the question of making the request being left to the sound discretion of the judge. See Blaine County Investment Co. v. Gallet, 35 Idaho 102, 204 Pac. 1066 (1922), for a construction of the legislative provision for payment of costs. |