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Show COLORADO 697 stream and then disappears in the sand and gravel of the streambed has the burden of proving that such water does not become a part of the main stream.178 Ground Waters Tributary to a Surface Watercourse Background The Colorado Supreme Court has said, "[I]t is the presumption that all ground water so situated finds its way to the stream in the watershed of which it lies, is tributary thereto, and subject to appropriation as part of the waters of the stream. * * * The burden of proof is on one asserting that such ground water is not so tributary, to prove that fact by clear and satisfactory evidence."179 The right to use percolating waters tributary to a watercourse was correlated under the law with the right to use waters flowing in the watercourse itself. The right to use waters flowing in a watercourse was based upon the system of prior appropriation. In the logical application of this principle, the location of the point of diversion had no more bearing upon the priority attaching to tributary percolating waters than it had in adjusting priorities among appropriators who diverted directly from the watercourse. The prior right to use percolating or seepage waters tributary to a stream, or which if not diverted would reach the stream, did not belong to the owner of the land on which such waters arose. Any appropriation of such waters was subject to all prior appropriation from the stream into which the waters would naturally flow or percolate.180 This has been the consistent holding of the Colorado courts notwithstanding the proviso in a statute enacted in 1889-and still in effect-declaring that ditches constructed for the purpose of utilizing the waste, seepage, or spring waters of the State shall be governed by the same priority laws as those relating to stream waters, provided that the owner of the lands of origin has the prior right to the water if capable of being used on his lands.181 The courts of Colorado have held uniformly that the proviso at the end of this statute applies when "waste, seepage, or spring waters" are not tributary to a natural stream. "It is only when such seepage water would ultimately reach and become part of a natural stream that an appropriator thereof can acquire a right to the use of such superior to that of the owner of the land."182 119Pktte Valley In. Co. v. Buckerslrr. Mill & Improvement Co., 25 Colo. 77, 53 Pac. 334 (1898). "'Safranek v. Limon, 123 Colo. 330, 228 Pac. (2d) 975, 977 (1951). See also Whitten v. Coit, 153 Colo. 157, 385 Pac. (2d) 131, 135 (1963). iMNeviusv. Smith, 86 Colo. 178, 279 Pac. 44 (1928). 181 Colo. Rev. Stat. Ann. § 148-2-2 (1963). lt2Lomas v. Webster, 109 Colo. 107, 110, 122 Pac. (2d) 248 (1942). See chapter 18 at notes 31 and 36. |