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Show 718 GROUND WATER RIGHTS IN SELECTED STATES "much less that it would flow underground in known and well defined channels.5' The question of existence of a definite underground stream was raised in a proceeding to establish a right to the use of all the surplus water of a lele (detached portion of an ahupuaa, or major land unit) of which the petitioner alleged ownership,232 A stream arose near the upper end of the lele. Ordinarily it disappeared before reaching the lower end, but in times of freshet it flowed down to certain springs below the lele that were the ordinary source of supply of a stream from which numerous lands obtained water. The petition was dismissed on procedural grounds, but the court pointed out that it was a case brought by an owner of land proposing to divert water therefrom in unindicated quantities at unindicated points, and with the burden of showing that any diversion would not injure others "or that the water that sinks in Kaea does not flow underground to the Mahoe springs in a channel that is defined and capable of reasonable ascertainment." The petitioner could make a diversion if not injurious to others, but to effectuate the unlimited right that it sought, must prove that the diversion would not injure others. The decision, to have practical value, would have to include a finding to this effect, and such finding the court naturally declined to make in advance. (2) The repeated dicta. In the absence of actual decisions, these dicta are important insofar as they disclose the view of the supreme court that: (a) definite underground streams are governed by different rules of law from those that apply to ground waters not in defined channels; (b) one who asserts a right to use water flowing in a defined subterranean channel has the burden of proving the existence of such channel, but that under strong circumstances, where an upstream party asserts the right to divert water that disappears in a stream bed in the downstream portion of which springs arise, that party has the burden of showing that the water does not reach the springs in a defined underground channel; and (c) that "rights" of some sort may attach to waters proved to be flowing in known and ascertained subterranean channels. (3) Established mainland principle. The principle that rights to the use of waters of definite underground streams are governed by the same rules of law as those that pertain to surface watercourses is long and well established on the mainland.233 The courts of most Western States have said, in one form or another, that the rules applicable to surface watercourses apply to definite under ground streams.234 In 1899, the California Supreme Court declared, "There is no dispute between the parties and no conflict in the authorities as to 232Palolo Land & Improvement Co. v. Territory of Hawaii, 18 Haw. 30 (1906). 233Wiel, S. C, "Water Rights in the Western States," 3d ed., vol. II, § 1077 (1911); Kinney, C. S., "A Treastise on the Law of Irrigation and Water Rights," 2d ed., vol. II, §§ 1157-1160(1912). 234 Hutchins, W. A., "Selected Problems in the Law of Water Rights in the West" 151-152, 182-265(1942). |