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Show PERCOLATING WATERS 641 appropriation of artesian waters, the court concluded that the foregoing rule on appropriation of percolating waters was dictum and declined to follow it.70 The court considered it impossible to establish different rules for subterranean waters found "as a relatively stationary body of water" and those "in which there is decided movement." The court noted, that in the case before it, there was a movement of the waters and held that there was no need to pass on any other situation.71 These artesian waters were held to be subject to appropria- tion. In another case involving artesian waters, the court held that subterranean percolating waters are subject to appropriation either by the statutory permit method applicable to surface waters or actual diversion and use.72 In 1951, Idaho amended its water appropriation statute by adding new provisions that expressly make ground water subject to a permit system of prior appropriation.73 Under the present law which clarifies prior case law, all ground waters within the State are declared to be public waters.74 As amended in 1963, no rights to use may be acquired except under the provisions of the act. However, if an appropriation had been commenced prior to the effective date of the 1963 amendment, it could be perfected under such method of appropriation.75 The term "ground water" means all water under the surface of the ground regardless of the geologic structure in which it is standing or moving.76 In order to obtain the right to withdraw ground water, one must apply to the State Department of Reclamation for a permit to so act.77 Once a permit is issued, the work completed in accordance therewith, and the water applied to a beneficial use, the permittee is then issued a license, reflecting the priority date of the appropriation.78 This license is binding on the State and passes with a conveyance of the land.79 Provisions concerning critical ground water areas are discussed later under "Designated Critical or Other Ground Water Areas-Idaho." Kansas The early Kansas law with respect to ground water was uncertain. Although several statutes apparently placed legislative or administrative controls on 10Hinton v. Little, 50 Idaho 371, 296 Pac. 582, 584 (1931). 71 296 Pac. at 583. 12Silkey v. Tiegs, 51 Idaho 344, 5 Pac. (2d) 1049 (1931). 73 Idaho Code Ann. § § 42-226 to -239 (Supp. 1969). All rights to ground water acquired before the effective date of the amendment are specifically "validated and confirmed" in all respects. Id. § 42-226. 74Id. § 42-226. lsId. § 42-229. 76Id. § 42-239(a). 77/tf. § 42-202. 78Id. § 42-219. 79 Idaho Code Ann. § 42-220 (1948). |
