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Show WATERS SUBJECT TO APPROPRIATION 23 7 waters in general. But it went beyond the underground streams and channels designation to a described class of artesian basins-probably far enough to arouse as much legal opposition and questioning as though it had extended to all percolating waters. In declaring that the 1927 law was declaratory of existing law and was fundamentally sound, although technically void, and that the waters of an artesian basin, the boundaries of which had been ascertained, were subject to appropriation even without the aid of the statute, the supreme court took the following broad view. This view was that the right of prior appropriation obtained in the jurisdiction under' Mexican sovereignty and continued after the American acquisition of the region and that adoption of the common law did not change the rules already prevailing. In develop- ing its thesis, the supreme court appeared to consider artesian basins with defined boundaries and percolating waters to be in the same logical category. (2) Idaho. In 1899, "subterranean waters" were included in the still existing list of waters subject to appropriation in Idaho.59 Comprehensive legislation governing appropriation of ground waters was enacted in 1951 and 1953.60 In the interim, the Idaho Supreme Court rendered decisions respecting rights to the use of percolating waters which, while not uniform in the development of principles, nevertheless with one exception favored the doctrine of appropria- tion. The earlier decisions tended toward this doctrine. The latest ones embraced it completely.61 (3) Utah. Judicial fiat in Utah definitely preceded and led directly to legislative action. In 1935, after passing through successive stages of recogniz- ing rules of absolute ownership and of correlative rights in percolating waters, the Utah Supreme Court rendered two decisions recognizing appropriative rights in waters of an artesian basin.62 These cases were decided about a week apart. In the earlier one, the minority opinion included a recommendation that the legislature take action without delay in extending public control over percolating waters by means of State administrative authority. Within a few months, the legislature cooperated by enacting a statute removing the limitation of streams flowing "in known or defined natural channels" from the designation of appropriable waters. This left the designation as "All waters in this state, whether above or under the ground * * *."63 (4) California. In this State, the Water Code subjects no other ground water to appropriation except "subterranean streams flowing through known and 59Idaho Laws 1899, p. 380, § 2, Code Ann. 42-103 (1948). 60 Idaho Code Ann. § § 42-226 to 42-239 (Supp. 1969). "Controlling decisions: Hinton v. Little, 50 Idaho 371, 374-380, 296 Pac. 582 (1931); Silkey v. Tiegs, 51 Idaho 344, 351-353,5 Pac. (2d) 1049 (1931). 62Wrathall v. Johnson, 86 Utah 50, 40 Pac. (2d) 755 (1935); Justesen v. Olsen, 86 Utah 158,40 Pac. (2d) 802 (1935). "Utah Laws 1935, ch. 105, Code Ann. § 73-1-1 (1968). |