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Show CALIFORNIA 695 Company to include rights in watercourses and in bodies of percolating water supplied therefrom.167 The reasoning in the Miller case was similar to that in Hudson v. Dailey, in which the parallel principles of the riparian and correlative doctrines had been merged and applied between riparian and overlying owners.168 Nature, said the California Supreme Court in the Miller case, had given to lands contiguous to streams and lands overlying percolating waters the natural advantage of the use of the water on such contiguous lands. It is the law that no riparian owner is entitled to take waters of the stream to nonriparian lands for commercial purposes if such taking would prevent other riparian owners from using the waters on their riparian lands; and as between owners of lands overlying "a common substratum of percolating water" the authorities have likewise established that this cannot be done. "This being so, we perceive no reason why the same rule should not be applied as between owners of land overlying a substratum of water directly connected with either the surface or subsurface flow of the stream and deriving practically its exclusive supply from that source."169 Accordingly, it was held that "The owner of land having an underground water-bearing stratum supplied by the flood waters of a stream has a primary right to the full flow of such waters, in order to bring his stratum up to its water-bearing capacity." Also, "his right to the accustomed flood flow of the stream for that purpose is paramount to that of the right of an appropriator to divert any of the waters for use beyond the watershed."170 It was further held in the instant case that all of the flood or storm waters of the stream were "necessary of themselves or by their force to supply the underground waters."171 An injunction was therefore issued against taking any of the stream waters for distant use. However, the right of the owner of overlying land to the full flow of the stream for the purpose of pressing water into his lands, without limitation to reasonableness as against an appropriator of the stream water for distant use, which was so declared in the Miller case, is no longer the law in California. As a result of the constitutional amendment of 1928, the "asserted underground and percolating water right" is subjected to the same regulation as against an appropriator as is the riparian right.172 In whatever respects the Miller case, or any other case, may be said to hold otherwise, "they must be deemed to yield to the new constitutional policy with reference to the use of the waters of the state." Accordingly, a senior appropriator of ground waters supplied by percolation 161Miller v. Bay Cities Water Co., 157 Cal. 256, 272, 278-281, 107 Pac. 115 (1910). ^Hudson v. Dailey, 156 Cal. 617, 628, 105 Pac. 748 (1909), discussed at notes 160-161 supra. 168Miller v. Bay Cities Water Co., 157 Cal. 256, 278, 107 Pac. 115 (1910). 170157 Cal. at 272. 171157 Cal. at 281,283. 112Peabody v. Vallejo, 2 Cal. (2d) 351, 372,40 Pac. (2d) 486 (1935). |