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Show WASTE, SEEPAGE, AND RETURN WATERS 571 the foregoing statute applies when "waste, seepage or spring waters" are not tributary to a natural stream. "It is only when such seepage water would ultimately reach and become part of a natural stream that an appropriator thereof can acquire a right to the use of such superior to that of the owner of the land."33 On a second appeal in the foregoing case, the following holding was adhered to: A person upon whose lands seepage waters first arise, which are not tributary to a natural stream, has the prior right to apply such waters to a beneficial use on his lands, but may lose his prior right by acquiescence in an adverse use thereof by another continued uninterruptedly for the prescriptive perkx^3^ "Whatever may be the right of the owner of the lands upon which seepage * * * waters first arise, as against a prior appropriator where such waters are not tributary to a stream, the law is well settled that waters which are tributary to a stream, belong to the stream and are subject to appropriation for beneficial use the same as other waters of the stream." 3S Nevertheless, in a case where defendants' waste waters flowed onto plaintiffs lands, the court said this did not obligate defendants "to continue or maintain conditions so as to supply plaintiffs appropriation of waste water at any time or in any quantity, when acting in good faith."36 Idaho.- The Idaho code provides:37 All ditches now constructed or which may hereafter be constructed for the purpose of utilizing seepage, waste or spring water of the state, shall be governed by the same laws relating to priority of right as those ditches, canals and conduits constructed for the purpose of utilizing the waters of running streams. The Idaho Supreme Court concluded in 1927 that surface waste and seepage water may be appropriated under these provisions of the statute,38 * * * subject to the right of the owner to cease wasting it, or in good faith to change the place or manner of wasting it, or to recapture it, so long as he applies it to a beneficial use. His control is not dependent upon continuous actual possession, and in the absence of abandonment or forfeiture of his right to its use, he may assert his right, which is not affected by his once having applied it to a beneficial use. "Lomas v. Webster, 109 Colo. 107, 110, 122 Pac. (2d) 248 (1942). ^Webster v. Lomas, 112 Colo. 74, 75, 145 Pac. (2d) 978 (1944). 3sDe Haas v. Benesch, 116 Colo. 344, 351, 181 Pac. (2d) 453 (1947), citing Nevius v. Smith, 86 Colo. 178, 279 Pac. 44 (1928), and Faden v. Hubbell, 93 Colo. 358, 28 Pac. (2d) 247 (1933). 36Green Valley Ditch Co. v. Schneider, 50 Colo. 606, 115 Pac. 705, 707 (1911); accord, Tongue Creek Orchard Co. v. Town of Orchard City, 131 Colo. 177, 280 Pac. (2d) 426, 428 (1955). "Idaho Code Ann. § 42-107 (1948). 3%Sebern v. Moore, 44 Idaho 410, 418-419, 258 Pac. 176 (1927). |
