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Show CALIFORNIA 669 The California Water Code does not use the term "percolating water" in its provisions relating to appropriation of water and statutory adjudication of water rights, but confines the operation of such provisions to surface waters and to "subterranean streams flowing through known and definite channels."26 This effectively excludes all other ground waters; and owing to the judicial distinctions between percolating waters and waters of definite underground streams, it necessarily excludes percolating waters. The decision in Katz v. Walkinshaw in 1902-1903 is of fundamental importance in California water law, not only in establishing a new ground water law (see "The California Doctrine of Correlative Rights," below), but also in broadening the concept of percolating water to include within that term well-defined subterranean basins filled with loose water-bearing materials through which the ground waters are broadly diffused.27 (2) Ground waters escaped from stream. Waters that have so far left the bed and other waters of a stream as to have lost their character as part of the flow, and that no longer are part of any definite underground stream, are percolating waters.28 (3) Ground waters are presumed to be percolating. The question of existence of percolating water in land is merely a question of fact.29 But if it is known that ground waters exist, but not known that they are flowing in a defined and known channel, "The presumption is that they are not part of a stream or watercourse nor flowing in a definite channel." The burden of proof is upon the party asserting the contrary.30 Property characteristics.- Water percolating in soil is real property.31 The subject of ownership of percolating water is discussed later under "Former Doctrine of Rights of Use" and "The California Doctrine of Correlative Rights-Analogy between correlative and riparian rights." Rights of Use as Property Real property, parcel of the land.-The right to use percolating water, as well as the corpus of the water itself, is real property.32 In Pasadena v. 26Cal. Water Code § § 1200 and 2500 (West 1956). "Katz v. Walkinshaw, 141 Cal. 116,138-140, 70 Pac. 663 (1902), 74 Pac. 766 (1903). 28 Vineland Irr. Dist. v. Azusa Irrigating Co., 126 Cal. 486, 494, 58 Pac. 1057 (1899). See Montecito Valley Water Co. v. Santa Barbara, 144 Cal. 578, 588, 77 Pac. 1113 (1904). 29 Hooker v. Los Angeles, 188 U.S. 314, 317 (1903). 30Los Angeles v. Pomeroy, 124 Cal. 597, 628, 633-634, 57 Pac. 585 (1899). See Hanson v. McCue, 42 Cal. 302, 308 (1811); Arroyo Ditch & Water Co. v. Baldwin, 155 Cal. 280, 284,100 Pac. 874(1909). Regarding factors considered in ascertaining whether there may be an underground stream, see the discussion at notes 3-6 supra. 31 Stanislaus Water Co. v. Bachman, 152 Cal. 716, 725, 93 Pac. 858 (1908). This case did not involve ground water. 32Burr v. Maclay Rancho Water Co., 154 Cal. 428,439, 98 Pac. 260 (1908);/Jan* v. Krug, 90 Fed. Supp. 773, 787 (S.D. Cal. 1950). |
