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Show 692 GROUND WATER RIGHTS IN SELECTED STATES By the principles laid down in that case it is not lawful for one owning land bordering upon or adjacent to a stream, to make an excavation in his land in order to intercept and obtain the percolating water, and apply such water to any use other than its reasonable use upon the land from which it is taken, if he thereby diminishes the stream and causes damage to parties having rights in the water there flowing. The same principle was decleared in a later case involving an interception of percolating water claimed to be the source of certain springs, as against one who claimed both as an appro priator of the spring water and also as an owner of land riparian to the stream fed by the springs.159 Thus, in the foregoing cases the rule of reasonable use was imposed upon owners of overlying lands adjacent to streams containing percolating waters that fed the streams, in correlation with riparian and appropriative rights in the stream waters. The principle was extended in Hudson v. Dailey to include owners of nonriparian lands overlying percolating waters that fed a stream and were necessary to its continued flow.160 The supreme court observed in Hudson v. Dailey that where ground water in the valley was in such immediate connection with the surface stream as to make it a part of that stream, then the lands overlying the ground water must be considered as riparian to the stream, so that under the rule of riparian rights these overlying lands and the lands contiguous to the stream would have a common right to use the water. But there always would be great difficulty in determining just where the ground water that was part of the stream ended and the percolating water in the valley began. In the instant case, it appeared that the water in the lands of many of the nonriparian overlying owners would be of the class ordinarily designated as percolating water. Hence it became "important to determine the relative rights of the owner of the nonriparian 159Cohen v. La Canada Land & Water Co., 142 Cal. 437, 439-440, 76 Pac. 47 (1904). On the second appeal in this case, Cohen v. La Canada Land & Water Co., 151 Cal. 680, 692, 91 Pac. 584 (1907), it was found that there was no basis for a correlation of rights because the evidence showed on the retrial that the springs were not supplied by the percolating water in litigation. The opinion of the court on the first appeal in the Cohen case contained a statement that the predecessors of the plaintiff had appropriated the water of the springs directly by going on the land on which the springs were located while that land was still unoccupied public land. Notwithstanding this, the principle was expressed that the owner of the overlying land was not entitled to intercept the percolating water to the injury of the plaintiff except for a reasonable use on the land from which it was taken. The question of public ownership of this land at the time the appropriation was made necessarily had no effect on the final decision on the second appeal, which was based upon the fact that the plaintiff had failed to prove injury to the water supply in question. See also Eckel v. Springfield Tunnel & Dev. Co., 87 Cal. App. 617, 622-625, 262 Pac. 425 (1927). 160Hudson v. Dailey, 156 Cal. 617, 626-628, 105 Pac. 748 (1909). |
