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Show RIGHTS OF LANDOWNERS IN DIFFUSED SURFACE WATERS 563 subsequent to the passage of the law is not before us in this case, and no opinion is expressed relative thereto."123 Utah The prevailing theme in the discussions for several preceding States is that the landowner has ownership or right of control of the diffused surface water that occurs on his land, or that at least the tendency is in that direction. But this appears not to be the case in Utah. There is little authority in Utah concerning the right to use diffused surface water. Although references have been made to such waters in a number of decisions, none has directly involved a dispute over the landowner's right to use them. A broad statement made by the supreme court in a general adjudication of rights for a river system in 1938 probably reflects the court's view at that time:124 We must know judicially that the water in a river between any two points is not accumulated there solely from the contributions thereto from marginal sources, but that the major portion thereof comes by natural flow from upstream sources which have fed the channel itself, step by step, clear back to its ultimate source or sources. The entire watershed to its uttermost confines, covering thousands of square miles, out to the crest of the divides which separate it from adjacent watersheds, is the generating source from which the water of a river comes or accumulates in its channel. Rains and snows falling on this entire vast area sink into the soil and find their way by surface or underground flow or percolation through the sloping strata down to the central channel. This entire sheet of water, or water table, constitutes the river and it never ceases to be such in its centripetal motion towards the channel. Any appropriator of water from the central channel is entitled to rely and depend upon all the sources which feed the main stream above his own diversion point, clear back to the farthest limits of the watershed. With the 1935 statutory amendments declaring all waters in Utah, whether above or under the ground, to be public property, subject to all existing rights to their use,125 it would appear to be reasonably certain that the landowner has no inherent right to use diffused surface water by virtue of his ownership of the land. In a 1952 decision, the Utah Supreme Court stated that the 1935 amendment encompassed diffused waters and rights to the use thereof could only be acquired by filing an application in the office of the State Engineer.126 '"Turner v. Big Lake Oil Co., 128 Tex. 155,169-170, 96 S.W. (2d) 221 (1936). 12ARichlandsIrr. Co. v. WestviewIrr. Co., 96 Utah 403, 418, 80 Pac. (2d) 458 (1938). 125 Utah Code Ann. § 73-1-1 (1968). 126McNaughton v. Eaton, 121 Utah 394, 400-401, 242 Pac. (2d) 570 (1952). |