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Show 600 OTHER WATERS AT THE SURFACE has been held entitled to the increased quantity of water thus developed as against a downstream claimant.179 In another case involving a similar situation, the court said:180 It may be that the fact that the defendant as a riparian proprietor had worked upon the spring and increased its flow would entitle him to a greater portion of the water on a fair division of the same than would otherwise fall to his lot. But he certainly did not by increasing the flow become the owner of all the flow. The question as to whether the water so "developed" would have reached the stream by percolation in its natural course, had it not been artificially drawn into the spring by the riparian owner's work, apparently was not raised in these two cases. If this portion of the water would have eventually entered the stream in any event by natural processes, then, according to the present water law philosophy of California, it is not subject to the rules governing developed water, but is part of a common water supply in which all rights of use are now coordinated. Spring not flowing from land on which located. -Springs are fed by ground water, which has emerged on the surface at a particular place. If there is not sufficient water to constitute a definite flow from the spring, or if the flow is not sufficient to pass beyond the boundaries of the tract on which located-and if it does not appear from the evidence that water percolating from the spring is tributary to a watercourse-questions of relative rights to the use of spring and connected stream waters do not arise. These kinds of questions may arise between the landowner and a claimant of appropriative rights in the spring who shows no privity of title with the owner, or between the landowner and persons claimed by him to be intercepting the ground waters tributary to the spring. On public lands, there may be controversies between conflicting claimants of appropriative rights in the spring, or between a spring water appropriative claimant and an entryman of the tract on which the spring rises. There has been little litigation in the higher courts of California on this phase of the general subject. A district court of appeal observed in 1920, in a case that involved conflicting appropriative rights to use springs situated on vacant public lands, that "There no more could be private ownership in the springs themselves than there could be private ownership in the corpus of a stream of running water. There could be but a usufructuary right." The supreme court, although denying a petition for hearing of this case, withheld its approval from two points, including the following:181 179 Churchill v. Rose, 136 Cal. 576, 578-579, 69 Pac. 416 (1902). l*°Gutierrez v. Wege, 145 Cal. 730, 734, 79 Pac. 449 (1905). 181 Simons v. Inyo Cerro Gordo Min. & Power Co., 48 Cal. App. 524, 535, 192 Pac. 144 (1920), hearing denied by supreme court. See 48 Cal. App. at 542 for the supreme court's comments. |