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Show 622 OTHER WATERS AT THE SURFACE use of the water for irrigation as against similar rights of owners of land contiguous to the stream flowing from the spring.301 In the opinion written in the important riparian case of Watkins Land Company v. Clements, it seems implicit that the owner of the head spring site has riparian rights, and only such rights.302 Spring not flowing from land on which located.-A court of civil appeals has said, "It must certainly be held that the owner of lands owns also all ordinary springs and waters arising thereon."303 In a case in which the evidence failed to show whether springs fed by percolating waters issuing from the banks of a stream were of value to the riparian owners or added perceptibly to the general volume of water in the bed of the stream, the Texas Supreme Court assumed that the owner of the land from which the springs issued had the right to grant access to them and use their waters for any purpose on either riparian or nonriparian land. Insofar as the record disclosed, they were neither surface water nor subsurface streams with definite channels, nor riparian water in any form.304 Sources of spring water.-ln Cantwell v. Zinser, the court said that the owner of land has the right to use all percolating water that he can capture with the aid of wells on his land-a right that is not lessened by the fact that the percolating water, if allowed to take its natural course, feeds a spring on a neighbor's adjoining land.305 All ground waters are presumed to be percolating; hence proof must be shown if they are to be held to be waters of a definite underground stream. In Pecos County Water Conservation and Irrigation District Number 1 v. Williams the court said it seemed to be well decided that the mere fact that the wells of one man dried up springs or wells of another neither proves nor indicates the existence of a well-defined channel of ground water. Furthermore, the court held it to be clear that an appropriation of waters of a spring could extend only to waters at and after their emergence from the ground, and that the same is true of riparian rights.306 Neither Cantwell v. Zinser nor the Pecos County District case contains a square ruling that would be applied if the proof were to establish positively that pumping from wells intercepts the flow of water in a definite subterranean 301 Fleming v. Davis, 37 Tex. 173, 194-201 (Semicolon Ct. 1872). m Watkins Land Co. v. Clements, 98 Tex. 578, 585-590, 86 S.W. 733 (1905). See Sun Co. v. Gibson, 295 Fed. 118, 119-120 (5th Cir. 1923). See also Great American Dev. Co. v. Smith, 303 S.W. (2d) 861, 862, 864 (Tex. Civ. App. 1957). M3Toyaho Creek Irr. Co. v. Hutchins, 21 Tex. Civ. App. 274, 282, 52 S.W. 101 (1899, error refused). 304 Texas Co. v. Burkett, 117 Tex. 16, 28-29, 296 S.W. 273 (1927). 30sCantwell v. Zinser, 208 S.W. (2d) 577, 579 (Tex. Civ. App. 1948). See Corpus Christi v. Pleasanton, 154 Tex. 289, 294, 276 S.W. (2d) 798 (1955). 306Pecos County W. C. & I. Dist. No. 1 v. Williams, 271 S.W. (2d) 503, 506-507 (Tex. Civ. App. 1954, error refused n.r.e.). |
