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Show 62 CHARACTERISTICS OF WATERCOURSE The high courts of a number of Western States have declared or voiced approval of this principle.204 Effect of withdrawal of subsurface waters.-\i drawing off the subsurface water tends to diminish appreciably and directly the flow of a surface stream, said the Arizona Supreme Court, it is subflow and is subject to the same rules that apply to the surface stream itself.205 In that event, the withdrawal of water from the subflow is a taking of a part of the whole streamflow, and as much a depletion of the natural watercourse as though diverted from the surface.206 Burden of proof.-Several courts have held that one who diverts part of the underflow of a stream has the burden of proving that such action does not result in depleting the streamflow at points farther down. In 1898, the Colorado Supreme Court held that when water flowing in a natural channel reaches the banks of a stream and there disappears in the sands of the streambed, the presumption will be that it augments the flow in the main stream by percolation, until the contrary is shown; and the burden of proof is on the party who diverts such water to establish that it does not mingle with the main flow of the stream.207 Subsequently, in a California case, there was testimony to the effect that no surface flow would show in the porous bed of a certain creek until the gravel was full of water from the bedrock to the surface.208 With such a porous creek bed, said the court, no evidence was necessary to establish the fact that the taking of a substantial part of the underflow from the channel at any point on the stream would cause a corresponding diminution in the surface water flow-the law of gravitation would raise a presumption to that effect. Hence, one who would establish the contrary has the burden of proving conditions which would prevent this result. The Idaho Supreme Court held that where there is evidence of subflow in a stream, the burden of proving that the water will not reach a lower prior appro- priator is upon a later upper appropriator who asserts that such is the case.209 204See Maricopa County M.W.C. Dist. v. Southwest Cotton Co., 39 Ariz. 65, 96, 4 Pac. (2d) 369 (1931); Huerfano Valley Ditch & Res. Co. v. Huerfano Valley Investment Co., 73 Colo. 300, 302, 215 Pac. 132 (1923); Smith v.Duff, 39 Mont. 382, 390, 102 Pac. 984 (1909); Texas Co. v. Burkett, 117 Tex. 16, 28, 296 S. W. 273 (1927): In re Johnson Creek, 159 Wash. 629, 630-631, 294 Pac. 566 (1930). 205Maricopa County M.W.C. Dist. v. Southwest Cotton Co., 39 Ariz. 65, 96, 4 Pac. (2d) 369(1931). 206Montecito Valley Water Co. v. Santa Barbara, 144 Cal. 578, 585-586, 588, 77 Pac. 1113 (1904); Verdugo Canyon Water Co. v. Verdugo, 152 Cal. 655, 663, 93 Pac. 1021 (1908); Buckers Irr., Mill. & Improvement Co. v. Farmers' Independent Ditch Co., 31 Colo. 62, 70-71, 72 Pac. 49 (1903); Emporia v.Soden, 25 Kans. 588, 608-609, 37 Am. Rep. 265 (1881). 207 Platte Valley Irr. Co. v. Buckers In., Mill & Improvement Co., 25 Colo. 77, 82, 53 Pac. 334(1898). 208 Perry v. Calkins, 159 Cal. 175, 180, 113 Pac. 136 (1911). 209 Jackson v. Cowan, 33 Idaho 525, 527-528, 196 Pac. 216 (1921). |
