OCR Text |
Show 684 GROUND WATER RIGHTS IN SELECTED STATES public domain were held subject to appropriation and superior to the claims of subsequent entrymen.108 Public Regulation of Artesian Wells Statutory regulation of artesian wells is designed to prevent waste of the water and thus to serve the public welfare. It has no bearing upon the relative rights of individual owners of wells, except to prevent each one from wasting or making unreasonable use of the artesian waters. It operates as between the individual and the public, acting through the State, and its restrictions apply to the owner of the well whether his is the only one in the area or is one of many. Since early in the State's history, California has had statutes regulating artesian wells.109 The current act, as codified in the Water Code, provides, among other things, that an artesian well is any artificial hole in the ground through which water naturally flows from subterranean sources to the surface of the ground for any length of time. Waste is the causing or allowing any flow of water from an artesian well to run into a natural watercourse upon private or public land (unless used for certain beneficial purposes), or upon a highway. Waste also includes the use of any water flowing from an artesian well for irrigation whenever over 5 percent of the water received on the land for irriga- tion is permitted to escape from the land. Artesian water may be stored for later beneficial uses; such beneficial use shall not exceed one-tenth miner's inch per acre, perpetual flow, which may be cumulated to that amount within any period of each year. Any artesian well that is not capped or equipped with a mechanical appliance that will readily and effectively arrest and prevent the flow of any water from the well is a public nuisance.110 The validity of the early artesian well control statute of 1907 was sustained by a district court of appeal in Ex parte Elam, under the State police power, as not violating either the Federal or the State Constitutions.111 Under the doc- trine laid down in the Katz case,112 the court held in the Elam case that the original ownership of water in the artesian belt was in the public, or at least that part of the public owning the surface of the soil within the artesian belt. Hence the act of 1907 affected the public welfare; and the right to legislate concerning it was referable to the police power of the State. There is no report of a hearing of this decision by the State supreme court; but that court 24 years later based its decision in In re Maas113 upon Ex parte Elam. What the supreme court sustained in the Maas case was the validity of an ordinance of Orange County making it unlawful to pump water from any water 10*De Wolfskill v. Smith, 5 Cal. App. 175,181-183, 89 Pac. 1001 (1907). 109Cal. Stats. 1877-1878, ch. CLIII, p. 195, Stats. 1907, ch. 101, p. 122, amended, Stats. 1909, ch. 427, p. 749, repealed, Water Code § 150003 (West 1966). noCal. Water Code § § 300-311 (West 1956). 111 Ex parte Elam, 6 Cal. App. 233, 236-241,91 Pac. 811 (1907). 112 Kate v. Walkinshaw, 141 Cal. 116, 70 Pac. 663 (1902), 74 Pac. 766 (1903). 113/« re Maas, 219 Cal. 422, 27 Pac. (2d) 373 (1933). |