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Show 236 APPROPRIATION OF WATER doctrines of water law recognized therein with respect to streams on the surface would be applied to subterranean streams-the appropriation doctrine, or the riparian doctrine, or both doctrines, as the case might be. Underflow of surface stream. -By definition, this aspect of ground water is part of a watercourse-the subsurface portion which exists in the ground underlying and in immediate contact with the flow on the surface of the ground; and with subterranean sideflows extending in many situations, on one or both sides, for varying distances beyond the surface streambanks. In a number of Western States, the high courts have had occasion to take cognizance of the existence of stream underflow. They agree that this water is as much a part of the stream as is the surface flow and that it is governed by the same rules-appropriation, riparian, or both. An Arizona decision defined the "underflow, subflow or undercurrent" of a surface stream; and it laid down a judicial test to determine whether or not water is subflow and subject to the same rules of appropriation law as water of the surface stream itself.ss Percolating water.-The courts tenaciously clung to their longstanding distinction between definite underground streams and percolating waters, opinions of hydrologists to the contrary notwithstanding, and with it the appli- cation of the law of watercourses to streams in the ground. As a result of this dis- tinction, wherever the appropriation doctrine was applied it was customarily applied to underground streams only, not to percolating water. It is therefore not surprising that in extending the appropriation doctrine to percolating water, the judiciary should lag behind the legislatures. As a matter of fact, in many States in which appropriative rights in percolating water are recognized, the legislatures spoke before there had been any indication of the official judicial attitude. (The laws concerning such water will be discussed in chapters 19 and 20.) Court action in some States was as follows. (1) New Mexico. In 1927, the legislature enacted a law relating to appropriation of water in underground streams, channels, artesian basins, reservoirs, or lakes having reasonably ascertainable boundaries.56 This act was held void by the New Mexico Supreme Court as being in contravention of a constitutional provision inhibiting extension of provisions of any existing law by reference only to its title. Despite this, the principles that it declared were unqualifiedly approved by the court.57 The defective legislation was replaced in 1931 by an act which eliminated the objectionable features.58 By its terms, the New Mexico ground water enactment applied to ground waters of designated classes with ascertainable boundaries, not to percolating "Maricopa County M. W. C. Dist. v. Southwest Cotton Co., 39 Ariz. 65, 96, 4 Pac. (2d) 369(1931). "N.Mex. Laws 1927, ch. 182. 57 Yeo v. Tweedy, 34 N. Mex. 611, 286 Pac. 970 (1929). S8N.Mex. Laws 1931 ch. 131. |