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Show PERCOLATING WATERS 635 Arizona The Arizona Supreme Court has consistently held that percolating waters are not subject to appropriation, but belong to owners of the soil.27 The court has accepted the American rule of reasonable use. It has declared that an overlying owner has a right to withdraw and use percolating water even though he harms his neighbor thereby, provided the withdrawal is for the purpose of making reasonable use of the land from which the water is taken.28 In the same case, the court specifically rejected the doctrine of correlative rights.29 The foregoing rule is qualified to some extent by a statute on critical groundwater areas prohibiting drilling wells in designated critical areas without a permit from the State Land Department.30 Arizona has not defined percolating waters. Water in "definite underground channels, whether perennial or intermittent, flood, waste or surplus water" is subject to appropriation.31 In Bristor v. Cheathem,32 the court held that "ground water" was subject to the American rule of reasonable use, rather than to appropriation or the rule of correlative rights. This apparent contradiction suggests that all subterranean waters not described by the appropriation statute are percolating waters in Arizona. California Historically, the California courts applied both the English rule of absolute ownership and the American rule of reasonable use.33 In the original decision in Katz v. Walkinshaw,3* the court clearly rejected the English rule. On rehearing,35 the court reaffirmed this rejec- tion, but modified its earlier opinion by departing from the purely Ameri- can rule of reasonable use and enunciating the California doctrine of correlative rights. The doctrine of correlative rights, as first stated in the Katz case in 1902, is a variation of the American rule. The doctrine provides for a sharing of the waters of the common source, even by those transporting it for distant use. Because of "the novelty of the doctrine" the court provided guidelines for 27 See Maricopa County Municipal Water Conservation Dist. No. 1 v. Southwest Cotton Co., 39 Ariz. 65, 4 Pac. (2d) 369 (1931); Bristor v. Cheatham, 75 Ariz. 227, 255 Pac. (2d) 173 (1953). 28Bristor v. Cheatham, 75 Ariz. 227, 255 Pac. (2d) 173,179-180 (1953). 29 255 Pac. (2d) at 178-179. 30 Ariz. Rev. Stat. Ann. § § 45-313 to -324 (1956). 31 Id. §45-101. 32Bristor v. Cheathem, 75 Ariz. 227, 255 Pac. (2d) 173 (1953). "See Cross v. Kitts, 69 Cal. 217, 10 Pac. 409 (1886) (the court purports to apply English rule, but actually applies a liberal construction of the American rule); Gould v. Eaton, 11 Cal. 639,44 Pac. 319 (1896) (English rule). MKatz v. Walkinshaw, 141 Cal. 116, 70 Pac. 663 (1902). 35 74 Pac. 766(1903). |
