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Show WATERS SUBJECT TO APPROPRIATION 23 5 along the Wasatch Mountains, had reached a considerable stage of development before the judicial and legislative branches of government had occasion to declare appropriative principles pertaining to stream water rights. (4) Oregon. In 1880, the Supreme Court of Oregon recognized the doctrine of prior appropriation of stream waters as between possessors of unsurveyed government lands, in accordance with the Act of Congress of 1866,51 provided a local custom to this effect were alleged and proved.S2 Legislative recognition of the appropriation doctrine, of existing appropriative rights, and of the right to make further appropriations, was finally accorded in 1891.53 Prior thereto, local customs were in effect under which an intending appropriator posted a notice of his claim and filed it in the county records.54 Ground Water Appropriative Rights Definite underground stream.-It is noted earlier that application of the appropriative principle to definite underground streams is contained not only in statutes pertaining expressly to subterranean water of this class, but also in those acts that subject to appropriation all waters, or all ground waters, or water constituting underflow of a stream. Independently of these statutes, however, and before the enactment of statutes pertaining expressly to definite underground streams, courts had drawn their historic distinction between such streams and percolating waters. This distinction was made chiefly with respect to the riparian question-whether the owner of land in which ground water occurred had the rights of a riparian proprietor therein, or owned the water outright. Independently, then, of statutes subjecting waters of definite underground streams to appropriation, courts of a large majority of Western States decided cases in which legal distinctions between such waters and diffused percolating waters were involved. With marked unanimity the courts that considered these questions accepted the principle that the rules of law that govern uses of water of such streams are not the same as those that apply to other ground waters. In general, they took the view that definite underground streams are legally comparable to surface watercourses. This means that the subterranean water should be definitely found to be moving, either continuously or intermittently, in a definite channel with bed and banks, and that such water is subject to the law of watercourses, not to any theory of absolute ownership by the owner of overlying lands. From this, it followed that in a particular jurisdiction the 5114 Stat. 253 (1866). 52Lewis v. McClure, 8 Oreg. 273, 274-275 (1880). The requirement of proof was later relaxed: Speake v. Hamilton, 21 Oreg. 3, 8, 26 Pac. 855 (1890). "Oreg. Laws 1891, p. 52. "Cole v.Logan, 24 Oreg. 304, 309, 33 Pac. 568 (1893). |