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Show SPRING WATERS 619 a part of the stream for the purpose of determining rights of use. In 1900, the court said, "If such springs have a well-defined channel which conducts the water into a stream, an appropriation of the waters of the latter is ipso facto an application of the waters of the springs to a beneficial use.283 Later the court said, "If the water in these springs was of sufficient quantity to rise to the surface and to flow out in a definite channel with a tendency to regularity, it was subject to appropriation."284 However, even though spring water flowing away in a definite stream is subject to appropriation, the holder of a permit to appropriate such water has no authority to trespass upon the land of the person on whose land the spring arises.285 Such trespasser has no interest in or to the waters arising upon the lands trespassed upon, by virtue of the permit or certificate of water rights acquired through the State administrative office. In the 1900 case of Boyce v. Cupper,286 the supreme court agreed with the principle governing nontributary spring waters-that water seeping into the soil from a spring having no perceptible outlet becomes percolating water, and continues to be the property of the landowner, so long as it remains a part of the soil with which it became intermingled. But the court emphasized that when such water reaches the channel of a creek, it ceases to be the property of the landowner, because the water has passed beyond his power of ordinary control. In the course of this study of spring water rights, all decisions of the Oregon Supreme Court consulted on the subject, in which the landowner preference was invoked, related to small springs that did not flow from the land of origin. In no case was the landowner preference extended to a spring found to be tributary to a watercourse. Spring on the public domain. -Necessarily, the landowner preference is not applicable to a spring on the public domain, regardless of size, because the United States, owner of the public domain, granted the right to use surplus water above vested appropriative rights (together with the water of all sources of water supply upon the public lands and not navigable) to the appropriation and use of the public.287 In an early case concerning an appropriation of water of a spring on the public domain, not forming a part of a watercourse, the Oregon Supreme Court referred to the permission granted by Congress288 to appropriate waters from their natural source on the public domain and to continue such diversion and use as against subsequent settlers upon the land. The court stated that "it is wBoyce v. Cupper, 37 Oreg. 256, 261, 61 Pac. 642 (1900). 284HMebrandt v. Montgomery, 113 Oreg. 687, 690, 234 Pac. 267 (1925). ™Minton v. Coast Property Corp., 151 Oreg. 208, 213, 216-217, 46 Pac. (2d) 1029 (1935). 286Boyce v. Cupper, 37 Oreg. 256, 61 Pac. 642 (1900). 28719 Stat. 377 (1877), 43 U.S.C. § 321 et seq. (1964). 28814 Stat. 253 (1866); 16 Stat. 218 (1870). |