OCR Text |
Show 690 GROUND WATER RIGHTS IN SELECTED STATES Coordination of Rights in Ground Waters and Surface Watercourses While there are several physical interconnections between ground waters and surface watercourses, rights to their use were not coordinated under early California water law principles. However, a considerable degree of coordination has since been achieved. Percolating Water Tributary to Watercourse Former rule.- While the doctrine of "absolute ownership" of percolating water remained in effect,147 there was no coordination between rights in per- colating waters in close proximity to a stream (but held from the evidence not to be a part of the underflow) and rights in the underflow itself. However difficult of determination, there was "a line, beyond which the water in the sands and gravels over which a stream flows and which supply or uphold the stream, ceases to be a part thereof and becomes what is called percolating water."148 Those ground waters that were a part of the underflow were con- sidered to be a part of the watercourse which consisted of both the surface stream and the underflow, and rights in the surface stream attached to the underflow as well.149 But from the absolute ownership rule, it was held to follow that the owner of overlying land owned the percolating water in his land tributary to a stream just as fully as he owned nontributary percolations.150 If waters intercepted by a tunnel on plaintiffs land were in fact percolating waters, that is, if they did not "form part of the body or flow, surface or subterranean, of any stream * * * then plaintiff had the unquestioned right to take them by its tunnel, and, even if injury resulted to other appropriators or riparian owners upon the stream, they could not be heard to complain."151 This meant that one rule of law (absolute ownership by the overlying owner) applied to tributary percolating water up to the point-so difficult to determine-at which it ceased to be percolating water and became part of the underflow of the stream, and another rule (the law of watercourses) applied thereafter. Present rule.- Rights to the use of the waters of a common supply of ground waters and surface waters in California are now coordinated on a basis of reasonable beneficial use. This principle was made possible by the adoption of the correlative doctrine of percolating water rights,152 and its development 147 See "Percolating Waters-Former Doctrine of Rights of Use," supra. ^Hudson v. Dailey, 156 Cal. 617, 627-628, 105 Pac. 748 (1909). 149Los Angeles v.Pomeroy, 124 Cal. 597, 630-632, 57 Pac. 585 (1899); Vineland Irr. Dist. \.Azusa Irrigating Co., 126 Cal. 486, 495, 58 Pac. 1057 (1899). 1S0Gould v. Eaton, 111 Cal. 639, 644-645, 44 Pac. 319 (1896). 151 Vineland Irr. Dist. v. Azusa Irrigating Co., 126 Cal. 486, 494, 58 Pac. 1057 (1899). 1 "See "The California Doctrine of Correlative Rights," supra. |