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Show 572 OTHER WATERS AT THE SURFACE Furthermore, according to the supreme court, the prior appropriator of waste water under the statute would have the right to reclaim the same from a drainage canal subsequently installed which cuts off his waste water supply ditch, provided he does not substantially injure the drainage works or materially interfere with the control or management of the drainage system. On the other hand, where there has been no appropriation of waste or seepage water prior to construction of the drain in which such water collected, such water would continue in possession of the owner of the drain and therefore would not be subject to appropriation under the statute. In a 1945 case, the Idaho Supreme Court repeated that the right given by statute to appropriate seepage water is subject to the right of the owner to cease wasting his water or to change the place or manner of using it. It must be conceded, said the court, that the original owners could not be required to continue to irrigate their ranch land nor to continue to waste 75 percent of the decreed water for the benefit of the waste water claimant.39 An irrigation company is not bound to maintain conditions giving rise to the waste of water from any particular part of its system for the benefit of individuals who have been making use of the waste. While such company cannot maliciously divert the waste water away from the users, it has the superior right of use for its own purposes in good faith.40 Kansas.-A statute originally enacted in 1891 provides that the proprietor of any lands saturated by seepage waters from water works may drain the water "into any natural stream, arroyo, or watercourse, or may at his election convey such waters to other lands or places whatsoever, and apply the same to domestic, argicultural, manufacturing or other purposes in his pleasure."41 Montana.-The proprietor of land has the right to use the land as he pleases, and has the right to change the flow of the waste waters thereon in the reasonable employment of his own property, subject to the limitation that the use be made without malice or negligence.42 The owner of the right to use the 39Co!thorp v. Mountain Home In. Dist., 66 Idaho 173, 179, 182, 157 Pac. (2d) 1005 (1945). This and other Idaho cases are discussed in chapter 9 at note 221. A Federal court has said that "the section neither expressly nor impliedly authorizes citizens to construct ditches to utilize seepage or waste water rightfully under the control of another * * *." United States v. Haga, 276 Fed. 41, 44 (D. Idaho 1921). A0Twin Falls Co. v. Damman, 277 Fed. 331, 332 (D. Idaho 1920). "It is settled law that seepage and waste water belong to the original appropriator and, in the absence of abandonment or forfeiture, may be reclaimed by such appropriator as long as he is willing and able to put it to a beneficial use." Reynolds In. Dist. v. Sproat, 70 Idaho 217, 222, 214 Pac. (2d) 880 (1950). To the same general effect, see Sebern v. Moore, 44 Idaho 410, 417, 258 Pac. 176 (1927); Crawford v. Inglin, 44 Idaho 663, 669, 258 Pac. 541 (1927). 41Kans. Stat. Ann. § 42-353 (1964), originally enacted, Laws 1891, ch. 133. Section 42-354 provides that a right-of-way be condemned for such purpose over intervening lands of others. A2Newton v. Weiler, 87 Mont. 164, 179-180, 286 Pac. 133 (1930). |