OCR Text |
Show WASTE, SEEPAGE, AND RETURN WATERS 569 instances, such accumulations may create watercourses where none previously existed, by raising the flows in the channels to the status of definite streams.18 The fact that waste and seepage waters contribute to and therefore are sources of supply of watercourses is not to be confused with questions of rights to the use of waste and seepage waters before they actually enter the stream channel, and with rights of use, recapture, and reuse after they have mingled with the waters already flowing there. Following are several State situations. Several State Situations Arizona.-The waters subject to appropriation by the terms of the State Water Code include "flood, waste or surplus water."19 Drainage waters, put into the ground by means of artificial irrigation, are not of the class specified by the statute as subject to appropriation. "The person or corporation recovering such waters has the legal right and power to dispose of them by sale or otherwise, if he so chooses."20 A lower owner has no vested right in waste water flowing from another's land. The upper owner "could deprive him of his employment thereof without incurring any legal liability, either by preventing any waste, or by recapturing the waste or surplus water from his land and appropriating it to some beneficial use or purpose."21 If waste water runs upon one's land, "he may capture and use it; but that is the limit and extent of his right." He cannot establish a property right in the use of waste water.22 Waters collected in the canal of a drainage district in Arizona are not subject to general appropriation, according to a Federal decision.23 California. -In early mining cases, it was held that the fact that others had built ditches or flumes to intercept waste waters would not preclude the original users, in the legitimate exercise of their water rights, from ceasing to abandon the waste waters at the particular point at which the waste water users had intercepted the water.24 The permanent right to use waste water from one's land can be obtained as against the owner by purchase or grant, and in other ways as well.25 I8In this regard, see chapter 3 at notes 186 and 187. 19 Ariz. Rev. Stat. Ann. § 45-101 (A) (1956). 20Brewster v. Salt River Valley Water Users' Assn., 27 Ariz. 23, 38-40, 229 Pac. 929 (1924). "Lambeye v. Garcia, 18 Ariz. 178, 182, 157 Pac. 977 (1916). "Wedgworth v. Wedgworth, 20 Ariz. 518, 523, 181 Pac. 952 (1919). 23 Wattson v. United States, 260 Fed. 506, 508-509 (9th Cir. 1919). "Dougherty v. Creary, 30 Cal. 290, 298-299 (1866); Correa v. Frietas, 42 Cal. 339, 344-345 (1871). "Davis v. Martin, 157 Cal. 657, 661, 108 Pac. 866 (1910). After long-continued use of water leaking from defective diversion works-thus taking on the semblance of a permanent situation-the downstream appropriator was held to have a right to such water as against the owner of the works. Dannenbrink v. Burger, 23 Cal. App. 587, |