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Show 646 GROUND WATER RIGHTS case decided after the act was passed, which was based on pre-statute law.117 This act was subsequently repealed.118 In Burgett v. Calentine,119 the New Mexico court held that spring waters which did not flow in a natural channel, but sank into the ground, were not subject to appropriation. Although this case does not deal directly with percolating waters, it is reasonable to assume that had the court considered them subject to appropriation it would have expressed a caveat against the unrestrained use of the source of these waters.120 Thus, the Burgett and Vanderwork cases appear as clear authority for the proposition that percolating ground water was not subject to appropriation prior to 1953. Although the 1953 act makes no reference to priorities, and exempts from permit require- ments users of waters outside of basins having reasonably ascertainable boundaries, it appears that it was intended as a prior appropriation statute with respect to such users.121 North Dakota An early North Dakota statute provided that the owner of the land owned water flowing over or under its surface, although it did not form a definite stream.122 In the 1963 case of Volkmann v. Crosby,12* the court ruled that percolating water was the property of the landowner, subject to reasonable beneficial use. The court held that it was unreasonable for the City of Crosby to construct and operate a well withdrawing percolating waters when such an action dried up a nearby irrigation well and where the city piped the water a distance from the well for municipal uses, including sale to individuals.124 The statute upon which this decision was based was repealed that same year.125 At the time of the Volkmann decision, there was an apparent statutory conflict surrounding rights in percolating waters. The Code provides, as it then provided, that percolating ground waters belong to the public and are subject to appropriation in accordance with statutory provisions that apply to surface and ground waters alike.126 In the Volkmann case, the court sought to reconcile these provisions and the rule of reasonable use by stating that the landowner may appropriate his right of reasonable use. The clear implication of 117State v.Mendenhall, 68 N. Mex. 467, 362 Pac. (2d) 998 (1961). 118N. Mex. Laws 1969, ch. 51, § 1. 119Burgett v. Calentine, 56 N. Mex. 194, 242 Pac. (2d) 276 (1951). 120 See Templeton v. Pecos Valley Artesian Conservatory Dist., 65 N. Mex. 59, 332 Pac. (2d) 465 (1958). 121 See Clark, R. E., "New Mexico Water Resources Law" 20 (1964). 122N. Dak. Comp. Laws 1913, § 5341, Cent. Code Ann. § 47-01-13 (1960). 123 Volkmann v. Crosby, 120 N.W. (2d) 18 (N. Dak. 1963). 124Id. at 22-23. 125N. Dak. Laws 1963, ch. 419, § 7. 126N. Dak. Cent. Code Ann. § 61-01-01 (1960). |
