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Show SPRING WATERS 609 that the water of such a spring in its natural state, before diversion, was lost in the adjacent soil and did not flow away in a definite stream could make no difference in the result and in no way altered the right of the first comer to appropriate the water for a useful purpose.226 In the latter case, the fact that an appropriation of spring water was initiated on entered public land with consent of the entryman (whose entry was subsequently cancelled) was held not to defeat the right of the appropriators (appellants) as against a later entryman (respondent). The court thought that the correct proposition was that this land was segregated from the public domain until the cancellation of the first homestead entry, whereupon it reverted to the public domain and remained such until the later entry was made by respondent; and that in this case there must have been a period of time during which the land was part of the public domain and subject to the rights and claims of appellants, at which time their rights properly and legally attached under Congressional legislation.227 In another case, the court held that the water of a spring situated wholly upon a Government homestead entry was subject to appropriation for beneficial use, with the consent of the entryman. The homstead entryman had conveyed to a stranger the right to use the water of a spring on the land, with the right of way. This was held to be not contrary to the Federal statutes relating to the transfer and alienation of homestead rights.228 Kansas Rights of ownership.-Discussion of rights of use or ownership of spring waters in the few Kansas decisions thereon is inextricably bound with that of ground water rights. Thus, in a 1962 case, the supreme court explained a 1907 decision229 in the following language:230 The Jobling case is relatively unimportant so far as ground water law of this state is concerned. It did not involve any question of relative rights of neighboring landowners overlying a common ground water supply. Rather, it involved an oral agreement and a claim of prescriptive rights to the use of mineral spring waters on an overlying owner's land. The Soden case was cited with approval, and the common-law rule was reaffirmed, "That percolating waters, such as these springs are, belong to the owner of the land as much as the land itself, admits of no doubt." Spring as source of watercourse. -A watercourse may have its origin in a spring. The watercourse becomes such at the point at which spring water comes 226LeQuime v. Chambers, 15 Idaho 405, 414, 98 Pac. 415 (1908). 22715 Idaho at 413. 228Short v. Praisewater, 35 Idaho 691, 696-701, 208 Pac. 844 (1922). 229 Jobling v. Tuttle, 75 Kans. 351, 360-364, 89 Pac. 699 (1907). 230 Williams v. Wichita, 190 Kans. 317, 374 Pac. (2d) 578, 586-587 (1962), appeal dismissed, 375 U.S. 7, rehearing denied, 375 U.S. 936 (1963). |
