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Show SPRING WATERS 593 ground-water supply. The essential difference between a spring and a well is that the former is a natural outlet for ground water, and the latter is an artificial excavation. Natural springs, however, are sometimes "developed" by artificial means in order to increase the flow. Springs often constitute important sources of supply of surface stream systems. In other cases they may form marshes or bogs, with no natural outlet. The ground water that supplies the spring has come from some higher elevation. The discharge from the spring may sink into the ground again, or it may evaporate, or it may create a seepage area and become diffused surface water, or it may flow away in a definite surface channel that constitutes a watercourse. Whether a landowner has the exclusive right to use a spring on his land depends, in various jurisdictions, upon whether the flow from the spring remains on his land. If the spring waters have been dedicated to the public, prior to the acquisition of a private right of use, the only way in which the landowner can acquire an exclusive right of use ordinarily is by appropriating the water, regardless of whether it remains on his land. And if the spring water flows away from his land in a defined stream which constitutes a watercourse, the law of watercourses generally applies, which means that he has no exclusive right to use the spring solely by virtue of land ownership. Source of Watercourse The uniform holding in most high-court Western cases in which the question has been litigated is that a spring that constitutes the source of a watercourse is subject to the law of watercourses. Statutes of Colorado and Oregon accord to the owner of land a prior right to spring waters arising on his land.142 A similar Washington statute was repealed in 1917.143 Notwithstanding these statutes, the courts in these States have held that if such waters constitute one of the sources of supply of a watercourse, they are subject to the law of watercourses. The landowner, therefore, has no exclusive rights to springs feeding definite streams, solely by virtue of the fact that the water comes naturally to the surface on his land.144 Thus, the doctrine of prior appropriation applies to the waters of such springs which supply watercourses throughout the West. In most Western 142Colo. Rev. Stat. Ann. § 148-2-2 (1963); Oreg. Rev. Stat. § 537.800 (Supp. 1969). Another Colorado statutory provision, § 148-2-3 (Supp. 1969), provides in part, "If it shall be found that the water of any such springs is not tributary to any natural stream the determinations shall fix the rights of appropriators from such springs among themselves." For a more detailed discussion of the situation in Colorado, see "State Situations-Colorado," infra. 143 Wash. Laws 1889-90, § 15, p. 710, repealed, Laws 1917, ch. 117, § 47, p. 468. 14ANevius v. Smith, 86 Colo. 178, 279 Pac. 44 (1928); Hildebrandt v. Montgomery, 113 Oreg. 687, 234 Pac. 267 (1925); Hollett v. Davis, 54 Wash. 326, 103 Pac. 423 (1909). |
