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Show SPRING WATERS 605 In Nevius v. Smith, the court held that the prior right to use spring waters belonging to a stream (or which, if not diverted, would reach a stream) does not vest in the landowner, solely by virture of land ownership, regardless of any provision in the statute. Any appropriation of such water is subject to all prior appropriations from the stream. The supreme court, however, quoted the trial court's finding "that the water in question did not reach the river; and that said water, if not diverted but left to itself, would reach the river," and emphasized that the rule was limited strictly to such waters as "belong to the stream."202 Another decision, which preceded Nevius v. Smith by a few years, was to the effect that under the statute, the use of a spring is accorded to the owner of the land on which it arises, if capable of use thereon, where the flow is shown not to constitute a natural watercourse.203 In Cline v. Whitten, decided in 1960, the supreme court declared, "There are no Colorado constitutional or statutory inhibitions against a person on whose lands spring water arises, which water is not tributary to and does not enter a natural stream, from using said water on his lands."204 On the contrary, section 148-2-2 of the statutes, quoted at the outset of this topic, was quoted in full.205 The supreme court further declared, "An owner of water rights is entitled to injuctive relief against anyone who interferes with and threatens to continue to interfere with the exercise of such rights. Faden v. Hubbell, 93 Colo. 358, 28 P. 247."206 Section 148-2-3 of the Colorado statutes, quoted at the outset of this subtopic, among other things, provides that "If it shall be found that the water of any such spring is not tributary to any natural stream the determinations shall fix the rights of appropriators from such springs among themselves." This quoted provision does not appear to have been mentioned or construed in any reported decision of the Colorado Supreme Court. Hawaii Controversies that have reached the Supreme Court of Hawaii over rights to use water of springs have arisen, in the usual case, between the owner of the 202Neviusv. Smith, 86 Colo. 178, 182-183, 279 Pac. 44 (1928). In a 1962 case, the court said, "[OJnce such [spring] waters have been established as tributary to a stream * * * they cannot be interrupted in their course and diverted from the stream; they belong to the creek, which in turn belongs to the people of the state by Article 16, Section 5 of the Constitution. Nevius v. Smith, 86 Colo. 178, 279 P. 44 [1929]." Cline v. Whitten, 150 Colo. 179, 372 Pac. (2d) 145,148 (1962). 203Haver v. Matonock, 79 Colo. 194,195-197, 244 Pac. 914 (1926). M* Cline v. Whitten, 144 Colo. 126, 355 Pac. (2d) 306, 308 (1960), quoted in Pikes Peak Golf Club, Inc. v. Kuiper, 169 Colo. 309, 455 Pac. (2d) 882, 884 (1969). The 1960 Cline opinion preceded the 1962 Cline opinion, supra note 202, in the same case. 20SThe court quoted Colo. Rev. Stat. § 147-2-2 (1953) which was identical to and has since become § 148-2-2 (1963), the current version. 206Cline v. Whitten, 144 Colo. 126, 355 Pac. (2d) 306, 308 (1960). |
