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Show 634 GROUND WATER RIGHTS or changing conditions of humidity, which follow no particular course.21 The second definition enlarges upon the first by including additional waters, such as those diffused through well-defined subterranean basins.22 In some jurisdictions, percolating waters are defined by statute.23 Rights of Use Rights to the use of percolating waters rest upon one or some variation of three bases-prior appropriation, the English rule of absolute ownership, and the American rule of reasonable use. Some Western States have specifically imposed prior appropriation on percolating waters. Other States have included percolating waters within broad appropriation statutes. In some Western jurisdictions, percolating waters are subject to the basic common law rules, rather than statutory appropriation. The English rule of absolute ownership holds that the owner of overlying lands is the absolute owner of all percolating waters thereunder. Under the rule of capture, the owner generally may withdraw as much as he desires, regardless of the effect on other wells or of the reasonableness of his use.24 The American rule of reasonable use modifies the English rule by limiting the landowner's water use to the amount necessary for some reasonable beneficial purpose in connection with his land. Waste of water or its export for distant use are not reasonable if other overlying landowners are thereby deprived of reasonable use of the water on their lands. The common law rules are not invariably applied in their purest form. They may be modified or qualified, thereby producing a rule such as the California rule of correlative rights. Alaska The definition of percolating waters is of little importance in Alaska because all surface and subsurface waters occurring in the natural state are subject to appropriation. No classifications are made by the statute.25 Prior to the enactment of the 1966 Water Code, a Federal district court in Alaska held that percolating waters may be used by the owner of the land as he sees fit.26 This decision appears to be an application of the English rule of absolute use. It was a decision on a motion to dismiss in which there was no evidence of unreasonable use or allegations to that effect. 21 See Los Angeles v. Hunter, 156 Cal. 603, 105 Pac. 755 (1909). 22Katz v. Walkinshaw, 141 Cal. 116, 70 Pac. 663 (1902), 74 Pac. 766 (1903). "Nev. Rev. Stat. § 534.010(l)(d) (Supp. 1967). 24 See Acton v. Blundell, 12 M. & W. 324, 152 Eng. Rep. 1223 (Ex. 1843). "Alaska Stat. § 46.15.030, 46.15.040(a) and 46.15.260(5) (Supp. 1966). 26Trillingham v. Alaska Housing Authority, 109 Fed. Supp. 924 (D. Alaska 1953). |
