OCR Text |
Show SPRING WATERS 617 owner of land on which a spring arose had no recourse against the owner of another tract of land who diverted percolating water from his land and thereby prevented it from flowing to the spring of the first-named owner; that is, the owner of a spring fed by percolating water or by water flowing through the soil in unknown and undefined channels had no claim upon the sources of the spring.273 The widely recognized rule that such waters are a constituent part of the land and belong to its owner, with the right to make any reasonable use thereof even though such use prevents the flow of percolating waters from his neighbor's spring, was held not to extend to water which flows underground in a constant stream in a known and well-defined natural channel.274 Such waters constitute a natural water- course. A spring fed thereby is entitled to protection to the same extent as though the source of supply were a watercourse on the surface. The Oregon Supreme Court stated in an early case that when a spring furnishes a stream of water that rises to the surface, the right of appropria- tion attaches. When, however, as in the instant case, the admitted quantity is so insignificant that a surface stream is impossible, use of the water belongs to the person upon whose land it first arises. Referring to the statute and quoting the landowner-preference clause, the court continued:275 The clause adverted to is, in our opinion, a grant of the exclusive right to the use of the unappropriated water specified to the person upon whose land such water first arises, and was probably a recognition of a practice prevailing in the arid region of the United States, that the title to lands containing water issuing from the sources mentioned had been secured, so that the water might be used for domestic and stock purposes, and that the quantity indicated did not appear to the legislative assembly to be more than was reasonably necessary to supply such use. It would seem reasonably likely that the court, in stating these reasons for the statutory preference, was thinking of small flows of water useful primarily for domestic or stock purposes, and that the landowner preference probably would not apply to a spring furnishing a stream flowing away from the premises. In a later case, the supreme court held that it was perfectly competent for the legislature to avoid confusion by providing that the owner of the land on which the seepage or spring waters first arose should have the right to use such waters.276 In applying the landowner preference to the use of these small springs, the supreme court has stated that landowners "own the spring," and ™Taylors. Welch, 6 Oreg. 198, 200-201 (1876). ™Hayes v. Adams, 109 Oreg. 51, 58-60, 218 Pac. 933 (1923). See Bull v. Siegrist, 169 Oreg. 180,186,126 Pac. (2d) 832 (1942). 27SMorrison v. Officer, 48 Oreg. 569, 570, 87 Pac. 896 (1906). ™Skinner v. Silver, 158 Oreg. 81, 97-98, 75 Pac. (2d) 21 (1938). |