| OCR Text |
Show 752 GROUND WATER RIGHTS IN SELECTED STATES decisions, the Utah court announced that percolating waters belonged to the owner of the soil and were not subject to the appropriation doctrine.419 Water which accumulated in a spring-bog area on private property was pre- sumed to be percolating water although it subsequently flowed into a natural channel; and even though this water made up a part of his supply, an appropri- ator from the stream could not prevent the landowner from diverting the water for his own use.420 As long as these waters were in the possession and control of the property owner, they were not subject to adverse possession apart from the soil itself.421 Much of what was said in the early decisions concerning absolute ownership is dicta, because these cases involved disputes between landowners and appro- priators and not rights between landowners.422 Correlative rights doctrine. -This doctrine, with some modification, existed as part of the ground water law in Utah from its adoption in 1921 in the case of Home v. Utah Oil Refining Company*23 until the court's adoption of the appropriation doctrine in 1935. In the Home case, the court stated, " [E] ach proprietor of land within an artesian basin is entitled to water in proportion to his surface area, provided he make beneficial use of it." In a subsequent decision, the court modified the rule announced in the Home case.424 The court held that since every owner of surface area was entitled to the same proportionate quantity of water, his share could be put to beneficial use outside the district as long as there was no injury to the rights of others. Under the correlative rights doctrine, the landowner was entitled to capture and use the percolating water while it was on his property, but he was not entitled to pursue it onto the lands of another.425 Exceptions to Rules Announced in Early Decisions Percolating Waters on the Public Domain An appropriator of percolating water by means of a well located on the public domain was entitled to have his rights protected against the owner of a mining claim which encompassed the land upon which the well was drilled.426 A mining company claiming to have developed water by means of a tunnel located in close proximity to a surface stream had the burden of proving that 419 Willow Creek In. Co. v. Michaelson, 21 Utah 248, 60 Pac. 943 (1900). 420/tf. 421 Crescent Mining Co. v. Silver King Mining Co., 17 Utah 444, 54 Pac. 244 (1898). A22Riordan v. West wood, 115 Utah 215, 203 Pac. (2d) 922 (1949). *23Horne v. Utah Oil Refining Co., 59 Utah 279, 202 Pac. 815 (1921). ™ Glover v. Utah Oil Refining Co., 62 Utah 174, 218 Pac. 955 (1923). *2SUtah Copper Co. v. Stephen Hayes Estate, 83 Utah 545, 31 Pac. (2d) 624 (1934). 426Sullivan v. Northern Spy Mining Co., 11 Utah 438, 40 Pac. 709 (1895). |
