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Show 732 GROUND WATER RIGHTS IN SELECTED STATES flowing in natural streams; and (4) concluded that as percolating waters are not public waters, a company serving consumers with such waters in the absence of an unequivocal intention to dedicate them to public use is not a public utility. One justice concurred and two dissented.288 Ground waters tributary to adjudicated stream. -Ground waters seeping from gravel underlying a large area, and which naturally constituted part of the natural underground supply of a surface stream, were held subject to appropri- ation in 1930.289 The waters in litigation had been gathered into an artificial drain, but they were legally as well as physically part of the stream supply and had been included in the adjudication of rights to use its waters. The Public Utilities Commission case was distinguished because of the differences in char- acter and sources of the waters involved. Definite adoption of appropriation doctrine. -In 1931, the Idaho Supreme Court took a view directly opposed to that of the majority of justices in the Public Utilities Commission case and adopted the doctrine of prior appropria- tion in relation to a common body of artesian water underlying the lands of litigants.290The doctrine of absolute ownership of ground waters was rejected. Prior decisions of the Idaho court were examined and the conflicting ones distinguished. No decisions to the contrary have since been rendered. Protection in Means of Diversion In the Bower case, the supreme court held that if no permanent loss of water was caused by use of wells installed by junior appropriators, issuance of a perpetual injunction would not be justified if it should become necessary to destroy the means of diversion of the senior appropriator's wells. "While the subsequent appropriator would be liable in damages, he would have the right to divert surplus subterranean waters."291 It was held in another case that a landowner who obtained water collected beneath the ground surface by reason of percolation-with no proof that there was a natural subterranean stream-had no right to insist that the water table be maintained at the existing level for the sole purpose of safeguarding his use of it.292 In a later case, the Idaho Supreme Court affirmed judgment for plaintiff (a prior appropriator in an artesian basin) where the evidence showed that be- cause defendants operated their pumps at a level below that of plaintiffs, the water level in the basin was lowered to such an extent that plaintiffs pumps went dry.293 The court stated that if defendants could now compel plaintiff to "8Public Util. Comm'n v. Natatorium Co., 36 Idaho 287, 299-308, 211 Pac. 533 (1922). 239 Union Cent. Life Ins. Co. v. Albrethsen, 50 Idaho 196, 202-204, 294 Pac. 842 (1930). 290Hinton v. Little, 50 Idaho 371, 374-380, 296 Pac. 582 (1931). 291 Bower v. Moorman, 27 Idaho 162, 183, 184, 147 Pac. 946 (1915). ™Nampa & Meridian Irr. Dist. v. Petrie, 37 Idaho 45, 50-51, 223 Pac. 531 (1923). 293Noh v. Stoner, 53 Idaho 651, 652-657, 26 Pac. (2d) 1112 (1933). |