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Show RIGHTS OF LANDOWNERS IN DIFFUSED SURFACE WATERS 559 The court of appeals upheld the trial court's determination that defendants' dam was not situated on a watercourse. Idaho The right of an individual to appropriate, under a permit from the State, water of an artificial lake lying wholly upon the land of another, the sources of water being wholly rainfall and melting snow not flowing in a defined stream, was denied by the Idaho Supreme Court in a decision rendered November 3, 1911.104 In that year, the legislature so amended the water appropriation statute as to forbid the issuance of a permit to appropriate water from any lake of 5 acres or less, pond, pool or spring, located entirely on the lands of a person or corporation, except to such landowner or with his or its written permission.105 In a later case, there appeared to be some question as to whether waters collected in a certain reservoir were in fact taken from a natural stream, or on the contrary were a mere collection of flood waters from rains and melting snow that ran off in the winter and spring and did not actually comprise or enter any natural stream or body of water. If the water impounded belonged to the latter class, said the supreme court, then it was the unqualified private property of the owners of the reservoir with which they might do as they saw fit.106 Dicta in a subsequent case suggests that the right to diffused surface water may not be absolute. In Franklin Cub River Pumping Company v. LeFevre the court said that a landowner "would own and be entitled to recapture the natural precipitation falling on his land so long as he applied it to beneficial use."107 (Emphasis added.) The latter proviso was not necessary to the decision, however, since the court agreed with the finding of the lower court that no measurable amount of water from the hollow reached the Cub River from which the plaintiff appropriator drew his water. Kansas In a case that involved the obstruction, rather than use, of the flow of diffused surface water, the Kansas Supreme Court stated as dictum that the landowner had the right "to use and accumulate all the water falling upon his own land."108 This right was considered to be of definite value because farmers on upland prairies, away from streams, frequently made small dams on lower 104King v. Chamberlin, 20 Idaho 504, 509-513,118 Pac. 1099 (1911). 105 Idaho Laws 1911, ch. 230, § 1, Code Ann. § 42-212 (1948). 106 Washington County In. Dist. v. Talboy, 55 Idaho 382, 389, 43 Pac. (2d) 943 (1935). 107Franklin Cub River Pumping Co. v. LeFevre, 79 Idaho 107, 311 Pac. (2d) 763, 766 (1957). 1MGibbsv. Williams, 25 Kans. 214, 217 (1881). |