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Show 610 OTHER WATERS AT THE SURFACE to or collects on the surface and flows therefrom in a channel with well-defined bed and banks.231 In a case decided in 1956, the evidence showed that a natural watercourse was fed largely by water flowing from a spring. The Supreme Court of Kansas held that the relative rights of the owner of the land on which the spring arose, and of the owners of lands contiguous to the watercourse, were those of upper and lower riparian proprietors, and that the lessee of the upper land had no right to divert the entire flow of the spring to the injury of the downstream owner-users.232 However, insofar as the riparian relationship is concerned, the legislature in 1945 passed an act dedicating all water within the State to the use of the people of the State, and providing that, subject to vested rights, surface or ground water rights might be appropriated under the procedure provided therein.233 The validity of this statute was sustained by both State and Federal courts on the several points presented for determination.234 Montana The water rights statute provides that the right to use unappropriated water of various sources, including springs, may be acquired by appropriation.235 An appropriator of water of a stream has the right to the flow of a spring subsequently appearing as a result of natural causes in the bed of a tributary. However, if the flow would not reach the diversion point of such appropriator during the dry season, it may be appropriated during such period by others.236 Furthermore, an appropriator on a stream cannot claim the flow of a spring which in its natural state does not reach the stream during the irrigation season.237 The fact that marshes, the water from which naturally flows into natural watercourses, are located on one's land does not, of itself, necessarily give the owner an exclusive right to use the water so as to prevent others from acquiring appropriative rights therein.238 231Rait v. Furrow, 74 Kans. 101, 106-107, 85 Pac. 934 (1906). 232 Weaver v. Beech Aircraft Corp., 180 Kans. 224, 303 Pac. (2d) 159 (1956). See Atchison, Topeka & S. F. R.R. v. Long, 46 Idaho 701, 27 Pac. 182 (1891). 233 Kans. Stat. Ann. § § 82a-701 to -722 (1969). 234State ex rel. Emery v. Knapp, 167 Kans. 546, 555-556, 207 Pac. (2d) 440 (1949); Baumann v. Smrha, 145 Fed. Supp. 617 (D. Kans. 1956), affirmed per curiam, 353 U.S. 863 (1956); Williams v. Wichita, 190 Kans. 317, 374 Pac. (2d) 578 (1962), appeal dismissed "for want of a substantial Federal question," 375 U.S. 7 (1963), rehearing denied, 375 U.S. 936 (1963); Hesston & Sedgwick v. Smrha, 192 Kans. 647, 391 Pac. (2d) 93 (1964). In this regard, see chapter 6, note 245. 235Mont. Rev. Codes Ann. § 89-801 (1964). 236 Beaverhead Canal Co. v. Dillon Elec. Light & Power Co., 34 Mont. 135, 140-141, 85 Pac. 880 (1906). 239Leonard v. Shatzer, 11 Mont. 422, 426-427, 28 Pac. 457 (1892). 238Quinlan v. Calvert, 31 Mont. 115, 119, 77 Pac. 428 (1904); West Side Ditch Co. v. Bennett, 106 Mont. 422, 431, 78 Pac. (2d) 78 (1938). |