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Show SPRING WATERS 607 question of the source of supply of the spring was not in issue. The spring was located on the land of the defendant, and the sole issue was whether plaintiff had acquired by prescription an exclusive right to the flow of water from the spring. On the facts, it was held that a prescriptive right had not been established. In discussing the ownership of the spring, and the fact that rights in the water had been acquired for individual ancient kalo patches, the court stated:213 One thing we find to be proved-that the Kupunaokane water was situated in and appurtenant to the land of Halawa and properly speaking "belonged" to its owners, and to the holders of the kalo patches within its boundaries, for it is conceded that ancient kalo patches have acquired easements in the water for their sustenance. Idaho Spring tributary to watercourse.-In Idaho, it is well settled that waters of a natural spring which form a natural stream flowing off the premises on which the spring rises are public waters of the State, subject to acquisition by appropriation.214 The fact that the spring and the stream flowing therefrom into a watercourse are located wholly on private land does not alter the rule.215 Furthermore, the water from a natural spring located on one's land and flowing therefrom in a natural channel upon the land of another was held subject to appropriation by the lower landowner on his own land, as against the claim of the owner of the land on which the spring arose, where the lower landowner had first applied the water to beneficial use in 1885 and had continuously and uninterruptedly made such beneficial use ever since.216 In the first reported decision of the Idaho Supreme Court in a controversey between claimants of rights to the use of water, it was held that prior appropriation of all waters of a stream carried with it waters of tributaries, including springs.217 Subsequently, it was held that an adjudication of stream waters carried with it waters of tributaries and tributary springs above the 213Kohala Sugar Co. v. Wight, 11 Haw. 644, 651 (1899). 214 Jones v. Mclntire, 60 Idaho 338, 352-353, 91 Pac. (2d) 373 (1939); Maher v. Gentry, 67 Idaho 559, 566,186 Pac. (2d) 870 (1941);Martiny v. Wells, 91 Idaho 215, 419 Pac. (2d) 470 (1966). See also Village of Peck v. Denison, 92 Idaho 747, 450 Pac. (2d) 310, 312-313 (1969). 2lsMarshall v. Niagara Springs Orchard Co., 22 Idaho 144, 154, 157, 125 Pac. 208 (1912); Bachman v. Reynolds In. Dist, 56 Idaho 507, 513, 55 Pac. (2d) 1314 (1936). "It is only when the waters of natural srpings flow off privately owned lands into a natural channel that such waters when flowing in the natural channel become public waters subject to appropriation, diversion and application to a beneficial use. I.C. § § 42-101, 42-103." Nordick v. Sorensen, 81 Idaho 117, 338 Pac. (2d) 766, 773 (1959). 216 Jones v. Mclntire, 60 Idaho 338, 352-353, 91 Pac. (2d) 373 (1939). ™Malad Valley In. Co. v. Campbell, 2 Idaho 411, 415, 18 Pac. 52 (1888). |
