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Show 668 GROUND WATER RIGHTS IN SELECTED STATES Following the constitutional amendment of 1928,20 referring to reasonable beneficial use, the overlying landowner's right to pump water from a stream's underflow in his land would stand as high as the right of an owner of land contiguous to the surface stream to pump water over the banks onto his land. The watercourse in litigation in Peabody v. Vallejo, decided in 1935,21 was not only a surface stream, but a subsurface stream as well, the latter extending a considerable distance on either side of the surface trough. In such a situation, said the court, the riparian landowners and the overlying landowners may be said to possess a right to the stream, surface and subsurface, analogous to the riparian right, which should be protected against an unreasonable depletion by an appropriator. "There is now no room for a distinction between the so-called pressure right and the overlying land owner's right, whether the latter be founded on a strictly percolating water right or a right in an underground stream. Each, however, is a paramount right subject to the test of reasonable use."22 The riparian right, while including not only the surface flow but also the underground flow, is now "subject to the [reasonable beneficial use] limitations in the 1928 constitutional amendment."23 In a 1938 case, a downstream riparian owner contended that it was entitled to maintain its underground basins filled to capacity in order to support the surface stream flowing over them, so that its cattle could be watered from the surface flow. Whether that, said the supreme court, is or is not a reasonable beneficial use is a question of fact to be passed on in each case. Either or both riparian owners could be required to endure a reasonable inconvenience or incur a reasonable expense in order that the water might be reasonably used by the other, but not unreasonable inconvenience or expense therefor. Each may be required to bear a fair proportion of unreasonable expense.24 Percolating Waters Nature of Percolating Waters Physical characteristics.-(1) Distinct from definite underground stream. It is essential to the nature of percolating waters that they do not form part of the body or flow, surface or subterranean, of any definite stream.2s 20Cal Const, art. XIV, § 3. See "Effect of the Constitutional Amendment of 1928," infra. 21 Peabody v. Vallejo, 2 Cal. (2d) 351, 40 Pac. (2d) 486 (1935), discussed in chapter 10 at note 361. " 2 Cal. (2d) at 375-376. "Tulare In. Dist. v. Lindsay-Strathmore In. Dist., 3 Cal. (2d) 489, 526, 531, 45 Pac. (2d) 972(1935). See chapter 13 at notes 236-251 for a discussion of this amendment. ™Rancho Santa Margarita v. Vail, 11 Cal. (2d) 501, 556-562, 81 Pac. (2d) 533 (1938). " Vinelandln. Dist. v. Azusa Irrigating Co., 126 Cal. 486, 494, 58 Pac. 1057 (1899). |