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Show SPRING WATERS 611 An increase in the flow of a spring which is one of the sources of a watercourse on which appropriative rights have been established-the increase resulting from irrigation of higher lands-does not belong to the company supplying the irrigation water or to the owner of the land on which the spring rises.239 In a case decided early in the present century, a claim to the right of a spring was held to have been lost by abandonment.240 Nebraska The Nebraska appropriation statutes make no specific reference to springs. They provide that unappropriated water of every natural stream is subject to appropriation; they refer also to appropriation of "any of the public waters of the State," to the "unappropriated waters of any natural lake or reservoir," and to "running water flowing in any river or stream or down any canyon or ravine."241 The Nebraska Supreme Court has held:242 A' conveyance of land upon which a perpetual spring is the fountainhead of a stream, flowing naturally in a well-defined channel in the course of drainage through other lands, grants riparian rights in the waters of the stream, but not absolute ownership and exclusive use of such waters without regard to the rights of lower riparian proprietors. In a later decision this case was cited, but the corresponding language in this later opinion reads as follows:243 Where the waters flowing from springs flow naturally in a well-defined channel in the course of drainage through other lands, the owner of the land upon which the springs are located does not have an exclusive right to control and use the waters to the injury of lower riparian owners or senior appropriators. Slattery v. Dout, 121 Neb. 418, 237 N.W. 301.1244! But where the waters flowing 239Rock Creek Ditch & Flume Co. v. Miller, 93 Mont. 248, 256-268, 17 Pac. (2d) 1074 (1933). The court held that such an increase was not developed water, and that when the waters escaped from the irrigated lands and reached the spring, they became tributary to the stream which they supplied. 240Goon v. Proctor, 27 Mont. 526, 528, 71 Pac. 1003 (1903). 241 Nebr. Rev. Stat. § § 46-202, -233(1), -240, -259 (1968). 242Slattery v.Dout, 121 Nebr. 418, 420, 237 N.W. 301 (1931). 243Rogers v.Petsch, 174 Nebr. 313, 117 N.W. (2d) 771, 774 (1962). 244The Rogers and Slattery cases were later cited for this same general proposition in Brummund v. Vogel, 184, Nebr. 415, 168 N.W. (2d) 24, 27 (1969). In the Brummund case, the court held that waters from springs on defendant's land "flow generally, although not continuously, in a well-defined channel and in a sufficient quantity and direction across plaintiffs land into another stream of water to constitute a watercourse within the meaning of section 31-202 R.R.S. 1943." Id. This section of the |
