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Show WASTE, SEEPAGE, AND RETURN WATERS 573 water-his private property while in his possession-may collect and recapture it before it leaves his possession.43 And so the landowner cannot be compelled, by the party using waste water from the landowner's land, to continue conditions resulting in waste of the water, or be prevented from draining his land in such manner as to cut off the flow of waste water.44 "This court, by a series of decisions, has adhered to the view that the ownership of land where water has its source does not necessarily give exclusive right to such waters so as to prevent others from acquiring rights therein."45 Seepage water that has its rise along the bed of a stream and that forms a natural accretion thereto belongs to that stream as part of its source of supply. An appropriator on the stream has the right to all such tributary flow even as against the owner of the land.46 As said by a Federal court, "It is established in Montana that the prior appropriator of water is entitled to the use of all the water in the stream to satisfy his appropriation, whether such water came from seepage or from the water naturally flowing in the stream."47 But the owner of land on which waste water arises has no right to its use after it leaves his land and gets beyond his physical control.48 Nevada.- Waste water was defined by the Nevada Supreme Court as consisting of surplus water running off from irrigiaged land, not consumed by the process of irrigation, or which the irrigated land would not take up.49 So long as waste water exists upon the lands of those who have been using the original flow, it is the property of such persons. They may consent to the acquisition of rights therein by other persons upon their own property and in ditches constructed on their own property for the purpose of conveying such rights to the lands of such other parties. But without the original landowner's consent, such water is not subject to appropriation by anyone else.50 The rights of the owner of land from which waste water flows-that is, the "Rock Creek Ditch & Flume Co. v. Miller, 93 Mont. 248, 268, 17 Pac. (2d) 1074 (1933). "Popham v. Holloron, 84 Mont. 442,449-450, 275 Pac. 1099 (1929). 45 Woodward v. Perkins, 116 Mont. 46, 53, 147 Pac. (2d) 1016 (1944). 46/d "Marks v. Hilger, 262 Fed. 302, 304 (9th Or. 1920). 48Rock Creek Ditch & Flume Co. v. Miller, 93 Mont. 248, 268, 17 Pac. (2d) 1074 (1933). Appropriators for mining purposes who allowed water to drain away from their land after its use in placer mining had no longer any jurisdiction over the water or ownership of it, and an attempt on their part to sell any further right of use in the water was wholly void because they had nothing to sell. Galiger v. McNulty, 80 Mont. 339, 357-358, 260 Pac. 401 (1927). After water has been turned back by the appropriator into the channel from which it was diverted, without any intent to recapture, after having been used and having answered the purposes of the first appropriator, it thereby became publici juris. Woolman v. Garringer, 1 Mont. 535, 545 (1872). A9Ryan v. Gallio, 52 Nev. 330, 344, 286 Pac. 963 (1930). Water seeping from irrigated land onto the adjoining land of another person was subsequently held to be waste water as so defined. In re Bassett Creek & Its Tributaries, 62 Nev. 461, 465-466, 155 Pac. (2d) 324 (1945). S0Bidleman v. Short, 38 Nev. 467, 471,150 Pac. 834 (1915). |