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Show 608 OTHER WATERS AT THE SURFACE points of diversion involved.218 Such an appropriation, of course, does not include nontributary waters developed by others and brought into the stream for their own use, to which they are thereby entitled.219 Spring not flowing from land on which located. -Waters of natural springs are declared by statute to be the property of the State and subject to appropriation.220 The appropriability of springs located wholly upon private lands, however, is limited by other provisions of the statute prohibiting the State Department of Reclamation from issuing a permit to divert or appropriate such water, except to the owner of the land or with his written 7.11 permission. The Idaho Supreme Court has made broad statements to the effect that spring water rising on private land and not flowing off of the premises is private water-a part of the land, and the exclusive property of the landowner.222 If the landowner consents, such water may be appropriated.223 In a 1922 case involving the question as to whether certain ground waters had been dedicated to public use, there was a disagreement among members of the supreme court as to the implication of the above cited statute prohibiting State officials from issuing permits to appropriate springs lying wholly on private lands, except to the landowner, without his written permission. According to the prevailing opinion, however, this statute constitutes a statutory recognition of the private ownership of such springs.224 Spring on the public domain. -An appropriation of water from a spring on the public domain is valid as against the claim of a subsequent private owner of such land.225 In one case, the Idaho Supreme Court concluded that the fact 21tJosslyn v. Daly, 15 Idaho 137, 148-149, 96 Pac. 568 (1908). See also Fairview v. Franklin Maple Creek Pioneer In. Co., 59 Idaho 7,17, 79 Pac. (2d) 531 (1938). 2i9Rabido v. Furey, 33 Idaho 56, 61, 63, 190 Pac. 73 (1920); St. John Irrigating Co. v. Danforth, 50 Idaho 513, 517, 298 Pac. 365 (1931). 220 Idaho Code Ann. § § 42-101 and -103 (1948). Short v. Praisewater, 35 Idaho 691, 700, 208 Pac. 844 (1922). 221 Idaho Code Ann. § § 42-212 and -213 (1948). 222Hall v. Taylor, 57 Idaho 662, 667-668, 67 Pac. (2d) 901 (1937); Jones \.McIntire, 60 Idaho 338, 352, 91 Pac. (2d) 373 (1939); Maher v. Gentry, 67 Idaho 559, 566-567, 186 Pac. (2d) 870 (1947). In Maher v. Gentry, it was held that water from a spring which sank into the soil and did not flow off the premises upon which the spring rose constituted "private waters" and that an adjoining landowner had no right to the use thereof in the absence of strict compliance with the provisions of the statute prohibiting the State officials from issuing permits to divert such waters except to the person or corporation owning the land or with his written permission. 223Short v. Praisewater, 35 Idaho 691, 701, 208 Pac. 844 (1922); Harris v. Chapman, 51 Idaho 283, 293, 5 Pac. (2d) 733 (l931);Maher v. Gentry, 67 Idaho 559, 567, 186 Pac. (2d) 870 (1947). See LeQuime v. Chambers, 15 Idaho 405, 413, 98 Pac. 415 (1908). 22APublic Util. Comm'n v. Natatorium Co., 36 Idaho 287, 301, 319, 211 Pac. 533 (1922). 22SMahoney v. Neiswanger, 6 Idaho 750, 752-754, 59 Pac. 561 (1899). See also Youngs v. Regan, 20 Idaho 275, 279-280, 118 Pac. 499 (1911); Keiler v. McDonald, 37 Idaho 573, 578, 218 Pac. 365 (1923). |
