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Show SPRING WATERS 597 The authorization in the Water Code to appropriate water of "springs on the surface" was construed by the Arizona Supreme Court to refer only to waters that emerge from the earth without artificial assistance. No appropriation can be made of percolating waters developed through the means of artificial structures, even though such waters may be brought to the surface thereby at a place where a "spring on the surface" already exists; only the natural flow is appropriate. Furthermore, the water of a damp place claimed to be a "spring on the surface" must, in its natural and undeveloped state, be sufficient in quantity to apply to a beneficial use, in order to be within the statutory authorization to appropriate spring water; otherwise it belongs to the owner of the land on which the damp place is located.162 If the water of a spring in its undeveloped state is sufficient in quantity to apply to a beneficial use, the fact that it is not sufficient to cause a flow beyond the boundaries of the tract on which the spring is located does not affect the appropriability of the spring water. The statute imposes no such requirement.163 The springs in litigation in the Parker case were located on lands that were part of the public domain at the time the appropriation was initiated but on which entry subsequently was made by adverse parties. The Arizona Supreme Court held that an entryman on Government land takes the land subject to all valid prior water rights-in this case, subject to the prior appropriation of the spring water.164 A decision rendered in 1946 involved rights to use springs on public lands, the waters of which had been developed and put to beneficial use by a settler who later conveyed his interest. There was no claim of a prior appropriation by anyone else. In answer to a contention that under the decisions of the Arizona court such waters were not appropriable prior to 1919, the court held that under the circumstances of the case that question was immaterial; that by settlement and making improvements on the public domain, and actually developing and putting the water to use, the settler had acquired an interest in the right to use the water which was subject to sale and conveyance.165 California Property characteristics.-\t was said in one case, in which plaintiffs had brought action to quiet title to waters of a spring located on lands of 162Fourzan v. Curtis, 43 Ariz. 140, 145-147, 29 Pac. (2d) 722 (1934). 163Parker v. Mclntyre, 47 Ariz. 484, 491, 56 Pac. (2d) 1337 (1936). "We hold, therefore, that under the law of Arizona, as it existed in 1931, the waters of the springs in question were subject to appropriation." 164I77 Ariz, at 486-487. 16SHamblin v. Woolley, 64 Ariz. 152,157-158, 167 Pac. (2d) 100 (1946). See also Gross v. MacCornack, 75 Ariz. 243, 255 Pac. (2d) 183 (1953); Mullen v. Gross, 84 Ariz. 207, 326 Pac. (2d) 33 (1958). |