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Show 744 GROUND WATER RIGHTS IN SELECTED STATES The Texas statute that governs the appropriation of water declares that waters of the ordinary flow "and underflow" of every flowing river or natural stream within the State are the property of the State, subject to appropriation as provided by law.369 What little has been said with respect to underflow in Texas decisions is to the effect that the underflow (water flowing through the sand and gravel below the surface of the streambed) is riparian water to the same extent as water flowing in the channel or on the surface.370 Percolating Waters Distinguished From Definite Underground Stream The distinguishing feature of percolating waters in the laws governing rights to their use is that they are not moving through the earth in known and defined channels comparable to those on the surface. Ground waters of this class are not "subsurface" or "underground streams with defined channels,"371 or water flowing in a "well defined channel."372 Rather, they are waters "percolating, oozing, or filtrating through the earth."373 Presumption That Ground Waters Are Percolating In the absence of testimony to the effect that waters obtained by excava- tion are underground streams with defined channels, "the presumption is that the sources of water supply obtained by such excavations are ordinary perco- lating waters, which are the exclusive property of the owner of the surface of the soil, and subject to barter and sale as any other species of property."374 Right of Use In Corpus Christi v. Pleasanton, the Texas Supreme Court reaffirmed the principle that it had established a half century earlier in the East case.375 The supreme court stated that in East the court adopted, unequivocally, the English 369Tex. Rev. Civ. Stat. Ann. art 7467 (Supp. 1970). 370See Motl v. Boyd, 116 Tex. 82, 286 S.W. 458 (1926); Texas Co. v. Burkett, 117 Tex. 16, 296 S.W. 273 (1927). 371 Texas Co. v. Burkett, 117 Tex. 16, 28-29, 296 S.W. 273 (1927). 312Cantwell v. Zinser, 208 S.W. (2d) 577, 578-579 (Tex. Civ. App. 1948). ^Houston & T.C.R.R. v. East, 98 Tex. 146, 149, 81 S.W. 279 (1904), quoting from Frailer v. Brown, 12 Ohio St. 294 (1861). 374Texas Co. v. Burkett, 117 Tex. 16, 29, 296 S.W. 273 (1927). SeePecos County W.C. & I. Dist. No. 1 v. Williams, 271 S.W. (2d) 503, 506 (Tex. Civ. App. 1954, error refused n.r.e.). ^Corpus Christi v. Pleasanton, 154 Tex. 289, 293-294, 276 S.W. (2d) 798 (1955), reaffirming Houston & T.C.R.R. v. East, 98 Tex. 146, 81 S.W. 279 (1904). |