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Show PERCOLATING WATERS 633 Burden of Proof Whenever the classification of particular ground waters is in question, the presumption is that the water is percolating groundjfater,15 discussed in the next topic. The burden of proof is normally on the one asserting that the waters constitute a definite underground stream.16 In Colorado, however, the presumption is that all ground water situated in the basin or watershed of a stream is tributary to the stream. Thus, the burden of proof rests upon one asserting that the ground water is nontributary water.17 Rights of Use When the existence of a definite underground stream is established, the right to use the waters of such a stream generally is governed by the laws pertaining to surface watercourses, discussed in previous chapters. Subject to vested rights, waters in definite underground streams are subject to appropriation in most Western States.18 In a number of States, the riparian doctrine also is recognized concurrently with the appropriation doctrine. But the degree of its recognition varies widely. In Hawaii, which recognizes ancient Hawaiian water rights and certain riparian rights, rights to use underground streams have been unsettled. Their use is subject to regulation by permit or otherwise under Hawaii's 1959 Ground Water Use Act.19 Rights to use underground streams also are unsettled in some other Western States, notably Texas.20 Rights to use underground streams in each of the 19 Western States are discussed in the appendix and for selected States in chapter 20. PERCOLATING WATERS Nature of Percolating Waters Percolating ground water may be defined in several ways. The common law definition of percolating water is wandering drops of water, moved by gravity certainly does exist somewhere. There must be certainty of location as well as of existence of the stream before it is subject to appropriation." Maricopa County Municipal Water Cons. Dist. No. 1 v. Southwest Cotton Co., 39 Ariz. 65, 4 Pac. (2d) 369, 377 (1931), modified in other respects, 39 Ariz. 367, 7 Pac. (2d) 254 (1932). 15 See Wilkening v. State, 54 Wash. (2d) 692, 344 Pac. (2d) 204 (1959). 16Pasadena v. Alhambra, 180 Pac. (2d) 699 (Cal. App. 1947), modified, 33 Cal. (2d) 908, 207 Pac. (2d) 17 (1949), certiorari denied, 339 U.S. 937 (1950). llSafranek v. Town of Limon, 123 Colo. 330, 228 Pac. (2d) 975 (1951). 18See, e.g., Cal. Water Code §§ 1200 and 1201 (West 1956); N. Mex. Stat. Ann. §§ 75-11-1 and 75-11-4 to 75-11-6 (1968); Wash. Rev. Code § § 90.44.040 and 90.44.050 (Supp. 1961). 19 See the discussion of Hawaii in chapter 20. 20Hutchins, W. A., "The Texas Law of Water Rights" 560-563 (1961). |