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Show 680 GROUND WATER RIGHTS IN SELECTED STATES and has been actually adopted and applied in a number of succeeding cases. Only surplus or excess waters above the quantities to which the paramount rights of the overlying owners attach are subject to appropriation for nonoverlying uses. What constitutes surplus water.-Surplus water, in this context, is the excess over quantities needed for prior rights. Hence, insofar as excess or surplus water is concerned, what an intending appropriator may take is "Any water not needed for the reasonable beneficial uses of those having prior rights"-the prior rights consisting of both overlying and prior appropriative rights.81 After the holder of the prior right in a ground water supply has proved the extent of his right, the burden is upon the claimant of a right in the surplus water to prove that a surplus exists.82 Appropriative rights.-The California courts use the term "appropriation" to refer to "any taking of water for other than riparian or overlying uses." In this State, "surplus water may rightfully be appropriated on privately owned land for nonoverlying uses, such as devotion to a public use or exportation beyond the basin or watershed."83 As with rights of appropriation generally, the appropriative right in percolating water is usufructuary only.84 While the surplus continues, the condition of the respective appropriators is substantially the same as that of several appropriators from a surface stream in which there is more than enough water for all. And, as in the case of surface streams, priorities govern the respective rights of appropriators of percolating water.85 California has never had a statutory procedure for appropriating percolating ground water. The Civil Code simply provided that "running water flowing in a river or stream or down a canyon or ravine" might be appropriated.86 The Water Code expressly limits the appropriative procedure therein contained to surface water courses "and to subterranean streams flowing through known and definite channels."87 The only way percolating water can be appropriated in California is by taking the water and applying it to beneficial use.88 From the foregoing comments, it follows that if an appropriative claimant takes only surplus water, he is not taking the property of the overlying owner, is not causing him injury, and is not required to give compensation for such State, subsequent entrymen took the property subject to the right of the appropriator in the water flowing from the wells, together with the right to construct ditches necessary for its diversion. 81 Pasadena v.Alhambra, 33 Cal. (2d) 908, 925, 207 Pac. (2d) 17 (1949). S2Lodi v. East Bay Municipal Util. Dist., 7 Cal. (2d) 316, 339, 60 Pac. (2d) 439 (1936). 83Pasadena v.Alhambra, 33 Cal. (2d) 908, 925-926, 207 Pac. (2d) 17 (1949). MKatz v. Walkinshaw, 141 Cal. 116, 135, 70 Pac. 663 (1902), 74 Pac. 766 (1903). ssSan Bernardino v. Riverside, 186 Cal. 7, 20, 30-31, 198 Pac. 784 (1921). 86Cal. Civ. Code § 1410 (1872), repealed, Stats. 1943, ch. 368. 87Cal. Water Code § 1200 (West 1956). "Compare Justice Shaw's suggestion in Katz v. Walkinshaw, 141 Cal. 116, 135, 70 Pac. 663 (1902), 74 Pac. 766 (1903). |