OCR Text |
Show 666 GROUND WATER RIGHTS IN SELECTED STATES material where the existence and general course of the flowing or moving body of water can be easily determined, it may constitute a watercourse although not visible on the surface and although the space through which the channel extends may be largely filled with the material through which the water flows. Whether or not the subsurface flow has a definite direction corresponding to surface flow is a relevant factor.5 Waters of a creek, according to the evidence in one case, sank into the ground above a cienaga, passed through it in the ground, and emerged into a creek below.6 There also was evidence to the effect that "it was not mere percolating water, but constituted what has been defined as an underground stream." Rjghts of Use Subject to the law of watercourses.-"There is no dispute between the parties and no conflict in the authorities as to the proposition that subterranean streams flowing through known and definite channels are governed by the same rules that apply to surface streams."7 Appropriative rights.- Subject to vested riparian and appropriative rights, waters in definite underground streams are subject to appropriation.8 Riparian rights.-A definite underground stream is subject to the riparian rights of contiguous lands.9 Subject to preferential domestic use rights, each landowner has a correlative right to take a proportionate share of the stream water, which right he shares reciprocally with the other riparian owners. Burden of proof.-The presumption is that ground water is percolating-not part of a stream or watercourse, nor flowing in a definite channel.10 Underflow of Surface Streams Characteristics The underflow-or sub flow or supporting flow-of a surface stream is the subsurface portion of a watercourse, the whole of which comprises waters flowing in close association both on and under the surface. The flow and the limits within which the waters that constitute the underflow are confined must be reasonably well defined. It consists of water in the soil, sand, and gravel sLos Angeles v. Pomeroy, 124 Cal. 597, 57 Pac. 585, 596, 599 (1899). 6Cave v. Tyler, 147 Cal. 454, 456, 82 Pac. 64 (1905). 1 Los Angeles v. Pomeroy, 124 Cal. 597, 632, 57 Pac. 585 (1899). 8Cal. Water Code § § 1200 and 1201 (West 1956). See Cross v. Kitts, 69 Cal. 217, 222, 10 Pac. 409(1886). 9Prather v. Hoberg, 24 Cal. (2d) 549, 557-562, 150 Pac. (2d) 405 (1944). Compare Hale v. McLea, 53 Cal. 578, 584 (1879). 10Los Angeles v. Pomeroy, 124 Cal. 597, 633-634, 57 Pac. 585 (1899). See Arroyo Ditch & Water Co. v. Baldwin, 155 Cal. 280, 284, 100 Pac. 874 (1909). See also Hanson v. McCue, 42 Cal. 303, 308 (1871). |