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Show IDAHO 731 there is a clear distinction between the right to appropriate subterranean stream waters and the right to appropriate percolating waters that form no part of such a stream.283 As distinguished from a definite underground stream, it was contended, mere percolating waters or waters gathered together in wells on lands of the owner of the fee are not subject to appropriation by a third party, under either the constitution or the statutes of Idaho. Percolating Waters With one exception, the Idaho Supreme Court decisions respecting rights to use percolating ground waters have favored the doctrine of prior appropriation. Whether or not the waters were under artesian pressure has not determined the development of principles. Early decisions.-The earliest decision in this category, LaQuime v. Cham- bers, involved waters of a spring. They were held subject to appropriation as they appeared on the surface, regardless of whether they came from a well-de- fined subterranean stream or were only seepage and percolating waters.284 In a later case, an entryman on unoccupied public land appropriated water of a spring and of an artesian well close by. This was recognized as valid.285 The next decision in point, involving artesian waters in bovver v. Moorman, was rendered in 1915.286 This rejected the doctrine of absolute ownership of percolating ground waters and apparently leaned toward the appropriation doctrine. It was indicated that the court in the LeQuime case had construed the statute relating to appropriation of subterranean waters as applying to percolating waters. Despite some questioning, an actual permanent loss of water in one's well resulting from the later installation of a well on adjoining land was held actionable in the Bower case. A controversy between neighboring owners of artesian wells was decided the following year by the supreme court. Judgment was rendered for the defendant notwithstanding plaintiffs claim of prior use.287 The evidence failed to prove a connection between the wells; and it was the court's view that convincing evidence should be adduced before a court of equity would be justified in issuing a permanent injunction. A 1922 decision. -In 1922, the Idaho Supreme Court rendered a decision, in Public Utilities Commission v. Natatorium Company, that: (1) distinguished percolating ground water from water flowing in a defined underground stream; (2) held that percolating water is not public water of the State, but belongs to the owner of the soil as a part of the realty; (3) held that constitutional and statutory provisions relating to appropriability of water apply to waters 283Public Util. Comm'n v. Natatorium Co., 36 Idaho 287, 305, 211 Pac. 533 (1922). 284LeQuime v. Chambers, 15 Idaho 405, 413-414, 98 Pac. 415 (1908). 285 Youngs v. Regan, 20 Idaho 275, 279-280, 118 Pac. 499 (1911). 286Bower v. Moorman, 27 Idaho 162, 181-184, 147 Pac. 496 (1915). 287 Jones v. Vanausdeln, 28 Idaho 743, 746-751, 156 Pac. 615 (1916). |