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Show 592 OTHER WATERS AT THE SURFACE because title to property cannot be tried in a contempt proceeding. If the relator had acquired the right to which he laid claim, he must have it determined in a civil action to which others interested might be made parties. The Federal case, decided in 1920, was also a contempt proceeding, in which Marks was adjudged in contempt on petition of Hilger. Marks had a decreed right for 15 inches of water from a creek flowing through his land, but claimed the right to divert a much larger quantity. His attempted justification was that at the beginning of the season when there was an abundance of water he diverted such quantities that his lands became saturated and discharged considerable seepage into the stream later in the season. In exchange for this seepage he claimed the right to divert water from the creek to the extent of the capacity of his ditches.140 The court noted the difficulty of proving the extent to which seepage operates in adding to the flow of a stream. It was held that the prior appropriator is entitled to use all water flowing in the stream system above the head of his ditch, regardless of where the waters come from-specifically including seepage water-"limited of course to the extent of the quantity of water judicially decreed" to him from the creek. "In the present case it must therefore follow that, inasmuch as the decree awarded Marks only 15 inches of water from Dutchman creek, he had no right to take from that stream 50 inches of water, and that he cannot justify his action upon the ground that he has benefited the lower appropriators, or has given to them the equivalent of what he has taken." A Wasington decision rendered in 1925 involved adjudication of the waters of a creek into which seepage waters from springs found their way. The landowners could not use these springs or their seepage, apparently because of gravity. The court decided in effect that if the parties have the right to use this seepage water and permit it to flow into the creek, "then it would seem but just and equitable that they should be permitted to take an equal amount of water, less transportation loss, from some point higher up the creek, from which point it can be conveyed to their land by gravity; provided, of course, that by doing so they do not injure or interfere with the rights of anyone else."141 The sole controversy was over the matter of substitution. The right to use the seepage water was not being contested, and the supreme court therefore specifically refrained from passing upon that right. SPRING WATERS Nature of Spring Water Spring waters are waters that break out upon the surface of the earth through natural openings in the ground. They necessarily originate from the 140Marks v. Hilger, 262 Fed. 302, 303-306 (9th Cir. 1920). 141 State v. American Fruit Growers, Inc., 135 Wash. 156, 160-164, 237 Pac. 498 (1925). |