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Show 578 OTHER WATERS AT THE SURFACE from the land of another cannot acquire a prescriptive right to such water, nor any right (except by grant) to have the owner of the land from which he obtains the water continue the flow. The Utah Supreme Court subsequently declared:72 The original appropriator as long as he has possession and control thereof may sell or transfer the right to the use of such waters to someone other than the reappropriator as long as he does so in good faith and they are beneficially used, or he may recapture and use them for further beneficial use if he does so before they get beyond his property and control. However, any part of the water used on the original appropriator's land that seeps therefrom back into the main channel loses its identity and becomes a part of the natural flow therein.73 The same loss of identity occurs when water used for irrigation becomes commingled with the waters of the ground water table.74 In 1919, the Utah Supreme Court took the view that waste and seepage waters from irrigation were not subject to appropriation, this being an artificial source of supply rather than a natural one.7S Subsequently, however, the court announced that while a person could acquire no right to have the flow of seepage water kept up, once it found its way back to the natural stream from which diverted, it could be appropriated therefrom.76 The question of appropriability of waste and seepage waters appears to have been settled by the 1935 amendment to the Utah water law, which declared that all waters in the State "whether above or under the ground" are the property of the public, subject to existing rights of use.77 Said the supreme court:78 Section 100-1-1, U. C. A. 1943, dedicates all the water of this state to the public use subject only to existing rights to the use thereof. It makes no distinction between previously appropriated waste waters which are beyond the control of the original appropriator and the flow of natural streams, and under section 100-3-1 U.C.A. 1943 and the following sections of that chapter all unappropriated public waters are subject to appropriation by compliance with the statutory regulations. "McNaughton v. Eaton, 121 Utah 394, 404, 242 Pac. (2d) 570 (1952). See also Lasson v. Seefy, 120 Utah 679, 238 Pac. (2d) 418 (1951). "Salt Lake City v. Telluride Power Co., 82 Utah 607, 616, 17 Pac. (2d) 281 (1932); Smithfield West Bench In. Co. v. Union Cent. Life Ins. Co., 105 Utah 468, 473, 142 Pac. (2d) 866 (1943). "Stubbs v. Ercanbrack, 13 Utah (2d) 45, 368 Pac. (2d) 461 (1962). 1BStookey v. Green, 53 Utah 311, 319, 178 Pac. 586 (1919). See also Roberts v. Gribble, 43 Utah 411, 416, 134 Pac. 1014(1913). 76Clark v. North Cottonwood In. & Water Co., 79 Utah 425, 433, 11 Pac. (2d) 300 (1932). "Utah Code Ann. § 73-1-1 (1968). "McNaughton v. Eaton, 121 Utah 394, 403, 242 Pac. (2d) 570 (1952). |