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Show 598 OTHER WATERS AT THE SURFACE defendants, that "There is no legal proposition better settled in this state than that the interest here claimed by the plaintiffs is an estate in real property * $ * " 166 As the spring is real property, an agreement to convey such an interest is within the statute of frauds and must be in writing, unless the circumstances are such as to constitute an executed parol grant,167 such as in a case where plaintiffs predecessor agreed with the owner of a tract of land, on which there was a tank to which appropriated spring water was piped, that he should have surplus water from the tank. He thereupon replaced the pipe leading from the spring to the tank, and installed another pipeline from the tank to his own land. The court held that under such agreement, plaintiffs predecessor acquired an equitable title to use the surplus water. Although the agreement was oral, it was made for a valuable consideration and was carried into execution.168 Spring tributary to watercourse.-A spring supplying a natural stream is it- self a part of the stream. This is so whether the water from the spring percolates into the stream through the soil, or reaches it in one or more running streams.169 It follows that as springs that supply streams are a part thereof, such springs in California are subject to the dual doctrines of appropriation and riparian rights. The owners of the lands that contain such springs have no greater rights therein solely by reason of such location than they would have in any other part of the watercourse to which their lands might be contiguous. Their rights in the springs, therefore, are limited by any prior appropriative rights or by any correlative riparian rights that others may have in the waters of the stream. A district court of appeal said, in a 1907 case involving a claim of appropriation of water flowing from abandoned oil wells on the public domain:170 Water passing through the soil, not in a stream but by way of filtration, is not distinctive from the soil itself; the water forms one of its component parts. In this condition it is not the subject of appropriation. When, however, it gathers in sufficient volume, whether by percolation or otherwise, to form a running stream, it no longer partakes of the nature of the soil, but has become separate and distinct therefrom and constitutes a stream of flowing water subject to appropriation. 166Stepp v. Williams, 52 Cal. App. 237, 253, 198 Pac. 661 (1921). 168Fogarty v. Fogarty, 129 Cal. 46, 47-49, 61 Pac. 570 (1900). 169 Gutierrez v. Wege, 145 Cal. 730, 734, 79 Pac. 449 (1905). Waters that passs from springs into a watercourse become a part of it. Barneich v. Mercy, 136 Cal. 205, 206-207,68 Pac. 589 (1902). 170De Wolfskill v. Smith, 5 Cal. App. 175, 181, 89 Pac. 1001 (1907). See Simons v.Inyo Cerro Gordo Min. & Power Co., 48 Cal. App. 524, 536, 192 Pac. 144 (1920). |