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Show 63 2 GROUND WATER RIGHTS While the distinction between percolating waters and underground streams is not important in Colorado, important distinctions are made between tributary and non-tributary ground waters.9 Whether or not ground waters are artesian waters ordinarily has no bearing on basic rights to use ground water. There are, however, some special provisions applicable to such waters in a number of States, which are discussed later.10 DEFINITE UNDERGROUND STREAMS Stream and Channel Waters in definite underground streams flow within definite and ascertain- able boundaries. Definite underground streams have been defined as streams that possess all the attributes of a surface body of water except location upon the surface;11 and as "underground streams, channels * * * having reasonably ascertainable boundaries."12 The Oregon Supreme Court defined such waters as waters that flow "underground in a constant stream in a known and well-defined natural channel, however small, but reasonably ascertainable from the surface, without excavation."13 The Arizona Supreme Court, on the other hand, said: While surface indications such as trees, shrubs, bushes, and grasses growing along the course and the topographical features of the surface are the simplest and surest methods of proof, we think they are by no means exclusive. Other methods may be used, such as a series of wells or borings, tunnels, the color and character of the water, the sound of water passing underneath the earth, the interruption of the flowing of other wells on the line of the alleged subterranean stream, geologic formation, and perhaps others.14 9See Whitten v. Coit, 153 Colo. 157, 385 Pac. (2d) 131 (1963). 10 See "Artesian Waters," infra. The foregoing and other factors bearing on the subject of classification are discussed in chapter 7 under "Waters Subject to Appropriation," in the State summaries for each of the 19 Western States in the appendix, and for selected States in chapter 20. "Pasadena v. Alhambra, 180 Pac. (2d) 699, 720 (Cal. App. 1947), modified in other respects, 33 Cal. (2d) 908, 207 Pac. (2d) 17 (1949), certiorari denied, 339 U.S. 937 (1950). 12 N. Mex. Stat. Ann. § 75-11-1 (1968). 13Hayes v. Adams, 109 Oreg. 51, 218 Pac. 933, 935 (1923). 14 "But all of these, when examined, must be such as to afford clear and convincing proof to the satisfaction of a reasonable man, not only that there are subterranean waters, but that such waters have a definite bed, banks and current within the ordinary meaning of the terms as above set forth, and the evidence must establish with reasonable certainty the location of such bed and banks. It is not sufficient that geologic theory or even visible physical facts prove that a stream may exist in a certain place, or probably or |