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Show 628 OTHER WATERS AT THE SURFACE Spring on public land.-Under the Federal statutes, an appropriation of a spring on public land will be protected against the claims of a subsequent patentee.350 Although, as noted above, the riparian doctrine applies in Washington to streams having their sources in springs, an appropriator may acquire a right superior to a title subsequently derived from the Govern- ment.351 Spring with no surface inlet or outlet.-A spring that forms a bog, with no surface inlet or outlet, is not subject to appropriation as against the landowner.352 New spring flowing to other land. -It was also held that the landowner has the right to a new spring breaking out on his land, even though if unmolested it would cause a stream to flow over another's land. Such water, it was held, is not subject to appropriation; nor is it subject to the riparian doctrine unless flowing from time immemorial.353 Percolating water feeding spring on another's land.-ln 1935, it was held by the Washington Supreme Court that percolating water feeding a spring on another's land is subject to reasonable use by the owner of land overlying the percolating water. Waste of water, or transport for commercial purposes, would not be such a reasonable use.354 Increase in flow of spring resulting from return water from irrigation brought from another watershed. -Such water was held to be developed water, belonging to the person responsible for the development.355 Loss of spring water right.-(I) Abandonment. In Malnati v. Ramstead, the defendant contended that plaintiff had abandoned the water system in controversy, basing it on two facts: Defendant interfered with the spring on his land by bulldozing a basin, which diverted the flow, whereupon to restore the sytem it was necessary for plaintiff to make a new channel for a short distance. Also, for several years, plaintiff supplemented the water supply on his property from a second spring on defendant's land. The court said: "Neither of these facts support a conclusion that plaintiff has abandoned the water system. The first was made necessary by defendant's own actions and resulted in this proceeding; the second simply supplemented or added to the existing system."356 (2) Adverse possession and use. In the Malnati case, the principle issue was acquisition of a prescriptive right by adverse possession. The supreme court declared: 35014 Stat. 253, § 9 (1866); 16 Stat. 218 (1870); 19 Stat. 377 (1877), 43 U.S.C. § 321 et seq. (1964). 351 Geddis v. Parrish, 1 Wash. 587, 21 Pac. 314 (1889). ^Dickey v. Maddux, 48 Wash. 411, 93 Pac. 1090 (1908). 3S*Mason v. Yearwood, 58 Wash. 276, 108 Pac. 608 (1910). 3S4Evans v. Seattle, 182 Wash. 450,47 Pac. (2d) 984 (1935). 355Miller v. Wheeler, 54 Wash. 429, 103 Pac. 641 (1909). 3SbMalnati v. Ramstead, 50 Wash. (2d) 105, 109, 309 Pac. (2d) 754 (1957). |