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Show 618 OTHER WATERS AT THE SURFACE that the spring and its waters are their exclusive property, "a part and parcel of the land itself."277 Thus, the water of such a spring is not subject to appropriation by any person other than the landowner.278 A permit received by an outsider from the State Engineer is of no avail, because the power to appropriate private property does not reside in the law-making body of the State.279 However, the supreme court has taken notice that landowners themselves may sometimes appropriate waters of a spring arising on their own lands. In one such case, the court said:280 As we view it, the filing upon the water of the springs before the state engineer, and obtaining a permit and certificate, would have only the effect of protecting the right of the owner of the land to the water in case there should be an increase of the flow from the springs so as to pass from the land in question to other lands. In such case it is possible that it would be a protection to the owner of the lands and springs after the water had escaped from the land. The owner of the land making an application for and obtaining a permit and certificate of water right would not separate the water or the right thereto from the land. In 1947, the Oregon Supreme Court summed up the principles relating to the use of water of such a spring as follows:281 The water of the spring involved in the present case does not pass from the tract of land upon which it arises, or become the source of any watercourse. It merely seeps or flows directly into a small marsh upon the same tract, having no perceptible outlet. Such a spring is not subject to appropriation by any person other than the owner of such land. It is private water, a part of the land upon which it arises, and belongs to the owner of that land. Spring tributary to watercourse. -Where a spring is not only tributary to a watercourse, but flows into a well-defined channel, the right of the prior appropriator of the watercourse is paramount to that of a subsequent use, or right of use, by the owner of land on which the spring rises.282 Such a spring is 211 Henrici v. Paulson, 128 Oreg. 514, 515, 274 Pac. 314 (1929); Henrici v. Paulson, 134 Oreg. 222, 224, 293 Pac. 424 (1930); Skinner v. Silver, 158 Oreg. 81, 94, 96, 75 Pac. (2d)21 (1938). 2™Klamath Dev. Co. v. Lewis, 136 Oreg. 445, 450, 299 Pac. 705 (1931); Messinger v. Woodcock, 159 Oreg. 435, 444, 80 Pac. (2d) 895 (1938). 279Henrici v. Paulson, 134 Oreg. 222, 224, 293 Pac. 424 (1930); Klamath Dev. Co. v. Lewis, 136 Oreg. 445, 450, 299 Pac. 705 (1931). 280Skinner v. Silver, 158 Oreg. 81, 97, 75 Pac. (2d) 21 (1938). 2SiBeisell v. Wood, 182 Oreg. 66, 71, 185 Pac. (2d) 570 (1947). 282Low v. Schaffer, 24 Oreg. 239, 244, 33 Pac. 678 (1893);Morrison v. Officer, 48 Oreg. 569, 570, 87 Pac. 896 (1906); Henrici v. Paulson, 134 Oreg. 222, 224, 293 Pac. 424 (1930). See also Cleaver v. Judd, 238 Oreg. 266, 272, 393 Pac. (2d) 196 (1964). |