OCR Text |
Show CALIFORNIA 667 immediately below the bed of the open stream,11 which supports the surface stream in its natural state or feeds it directly.12 And it is essential that the surface and subsurface flows be in contact and that the subsurface flow shall have a definite direction corresponding to the surface flow.13 Lateral limits ofunderflow.--The underflow may include not only the water moving in the loose, porous material that constitutes the bed of the surface stream, but also the lateral extensions of the subsurface water-bearing material on each side of the surface channel. In other words, these lateral extensions are overlaid by dry ground.14 In order that the existence and general direction of the body of water moving in the ground may be determined with reasonable accuracy, it must be moving in a course and confined within a reasonably well defined space.15 The underflow is a part of the watercourse.-It is "well established that the underground and surface portions of the stream constitute one common supply."16 Rights of Use From the fact that the underflow or subflow of a watercourse is a part thereof, it follows (1) that rights to use the subterranean portion are governed by the law of watercourses, and (2) that rights in a watercourse include rights in its underflow. Appropriative rights.-ln one of its early decisions with respect to the underflow of streams, the California Supreme Court held that "one may, by appropriate works, develop and secure to useful purposes the subsurface flow of our streams, and become, with due regard to the rights of others in the stream, a legal appropriator of waters by so doing."17 Riparian rights. -The supreme court has held that the underflow belongs to the stream and must flow on to the lower riparian proprietor.18 The underflow is no more waste water than is the surface flow which the riparian owner actually puts to use.19 11 Verdugo Canyon Water Co. v. Verdugo, 152 Cal. 655, 663, 93 Pac. 1021 (l908);Perry v. Calkins, 159 Cal. 175, 180, 113 Pac. 136 (1911). 12Huffner v. Sawday, 153 Cal. 86, 92-93, 94 Pac. 424 (1908); San Bernardino v. Riverside, 186 Cal. 7,14,198 Pac. 784 (1921). 13 Los Angeles v. Pomeroy, 124 Cal. 597, 617, 636-637, 57 Pac. 585 (1899). 14See Larsen v. Apollonio, 5 Cal. (2d) 440, 444, 55 Pac. (2d) 196 (1936); Peabody v. Vallejo, 2 Cal. (2d) 351, 375, 40 Pac. (2d) 486 (1935). 15 Los Angeles v. Pomeroy, 124 Cal. 597, 623-624, 57 Pac. 585 (1899). 16Rancho Santa Margarita v. Vail, 11 Cal. (2d) 501, 555, 81 Pac. (2d) 533 (1938); Los Angeles v. Pomeroy, 124 Cal. 597, 623-624, 631, 57 Pac. 585 (1899); Barton Land & Water Co. v. Crafton Water Co., 171 Cal. 89, 95, 152 Pac. 48 (1915). 17 Vineland Lrr. Dist. v. Azusa Irrigating Co., 126 Cal. 486, 495, 58 Pac. 1057 (1899). Cal. Water Code § § 1200, 1201 (West 1956). 18Los Angeles v. Pomeroy, 124 Cal. 597, 630, 57 Pac. 585 (1899). 19Herminghaus v. Southern Cal. Edison Co., 200 Cal. 81, 107, 252 Pac. 607 (1926). |