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Show SPRING WATERS 625 that find their way into the natural water channel, this water, if flowing in any substantial amount, should be awarded and decreed to the Nebekers as tributary to the main stream appropriated and used by them.324 An appropriator of water from a stream is entitled to change his point of diversion from the stream to a spring which is tributary to the stream, provided that vested rights are not thereby impaired.325 Developed spring water. -Where "all of the evidence definitely without dispute indicates that by tunneling and improving the diversion system the flow of water from these springs into the system can be greatly increased," an application to appropriate the quantity of water developed will be ap- proved.326 The party who claims to have developed additional water has the burden of proving his claim.327 Source of spring water.-(I) Spring supplied by definite underground stream. Since streams flowing in defined subterranean watercourses have always been governed by the law of watercourses, an appropriator of a spring supplied by water flowing in a known and defined underground stream acquired a right to this source of supply as a part of his appropriation of the spring.328 (2) Spring supplied by percolating water. In the early part of the 20th century, the rights of the prior appropriator extended to percolating waters supplying a spring, if the land on which the spring was located was part of the public domain at the time of the appropriation.329 Springs on private land supplied by percolating water were considered, prior to 1935, as owned by the property owner solely by virtue of his ownership of the land. "The waters of the springs are therefore percolating waters and if such springs are located on private lands the waters arising therefrom are not subject to appropriation."330 In 1935, the legislature amended sections of the State water rights laws to declare that all waters in the State, whether above or under the ground, are the property of the public, subject to all existing rights, and that rights to use 32A Bastion v. Nebeker, 49 Utah 390, 401, 163 Pac. 1092 (1916). See also Sigurd City v. State, 105 Utah 278, 142 Pac. (2d) 154 (1943); Yatesv. Newton, 59 Utah 105, 202 Pac. 208(1921). 32SSalt Lake City v. Boundary Springs Water Users Assn., 2 Utah (2d) 141, 270 Pac. (2d) 453(1954). 326Bullock v. Tracy, 4 Utah (2d) 370, 374-375, 294 Pac. (2d) 707 (1956). See also Riordan v. Westwood, 115 Utah 215, 203 Pac. (2d) 922 (1949). 321 Mountain Lake Min. Co. v. Midway In. Co., 47 Utah 346, 360, 149 Pac. 929 (1915). See also Peterson v. Wood, 71 Utah 77, 85, 262 Pac. 828 (1927); Silver King Consol. Min. Co. v. Sutton, 85 Utah 297, 306, 39 Pac. (2d) 682 (1934). 32*Whitmore v. Utah Fuel Co., 26 Utah 488, 73 Pac. 764 (1903). See also Howcroft v. Union & Jordan In. Co., 25 Utah 311,71 Pac. 487 (1903). 329Peterson v. Wood, 71 Utah 77, 262 Pac. 828 (1927); Stookey v. Green, 53 Utah 311, 178 Pac. 586 (1919). 330Deseret Live Stock Co. v. Hooppiania, 66 Utah 25, 38, 239 Pac. 479 (1925). |
