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Show 576 OTHER WATERS AT THE SURFACE remains on the land of the original appropriator, who is considered by the court to be justified in recapturing waste water remaining on his land and in applying it to a beneficial use.60 The Oregon Supreme Court recognized a distinction between seepage and waste water. In one decision it was stated, with reference to the appropriator's claim to water that he termed "waste and seepage water," that if those above his premises followed the economical methods required by law there would be no waste water, though there might be some seepage.61 In a later case, waste waters in controversy were waters that had been used for irrigation and that had collected in a gulch which an irrigation district appropriated as a part of its ditch system, for the purpose of conveying the captured waste waters to places of use. Seepage water, on the other hand, was water that rose on the land of one of the parties. Thus waste water came to the land of this party in the gulch, and seepage water rose independently on his own land.62 It was further held in this later case63 that in view of the proviso in the above-quoted statute favoring the person on whose land seepage or spring waters first arise, the landowner needs no permit to use seepage water that rises on his own lands. And no one has the right to go upon the premises of such landowner for the purpose of appropriating such water without permission of the latter. To be entitled to the statutory preference accorded him, the landowner must use the water before it leaves his land. The court said:64 If he allows it to escape into the channel of the stream, he cannot pursue it and retake it as against the appropriator of the waters of that stream. No doubt, all streams are fed more or less by seepage water which gets into the channel from no visible source. * * * [I] t would destroy the whole irrigation system of the arid states, if such water could be pursued into the stream by the land owner on whose premises the seepage began. "The water of the stream, when released by the defendant and his predecessors after having been spread over their land and used to irrigate a crop, was waste water and subject to appropriation by the plaintiff* * *."65 But an appropriator who uses water from which waste develops cannot be compelled by the user of the waste water to maintain an excessive use of water so that the waste water user may get the benefit of the surplus.66 On the contrary, if an upper appropriator violates the rule against using more, water 60Barker v. Sonner, 135 Oreg. 75, 79-80, 294 Pac. 1053 (1931). 61 Hough v. Porter, 51 Oreg. 318, 432, 95 Pac. 732 (1908), 98 Pac. 1083 (1909), 102 Pac. 728 (1909). "Barker v. Sonner, 135 Oreg. 75, 79-85, 294 Pac. 1053 (1931). 63135 Oreg. at 83-85. 6ABroshan v. Boggs, 101 Oreg. 472, 476,198 Pac. 890 (1921). "Oliver v. Skinner & Lodge, 190 Oreg. 423, 441, 226 Pac. (2d) 507 (1951). 66Tyler v. Obiague, 95 Oreg. 57, 61-62, 186 Pac. 579 (1920). |