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Show IDAHO 733 lower his well below that of defendants, in order to receive again the quantity of water theretofore used, it would result ultimately in a race for the bottom of the artesian belt. "If subsequent appropriators desire to engage in such a contest the financial burden must rest on them and with no injury to the prior appropriators or loss of their water." Under such circumstances, this decision protects the prior appropriator of ground water in his method of diversion, in the absence of an undertaking by the junior appropriator to pay the expense of so altering the prior appropriator's diversion as to restore his previous water supply conditions. However, subsequent legislation appears to have adopted a substantially different approach.294 Ground Water Legislation The Idaho statutes provide that all waters of the State, when flowing in their natural channels, are the property of the State,295 and that the right to use waters of rivers, streams, lakes, springs, and "subterranean waters" may be acquired by appropriation.296 A statute pertaining specifically to ground water appropriation and adminis- tration of rights was enacted in 1951. It was substantially enlarged in 1953 and has subsequently been amended in certain respects.297 Definition and Ownership of Ground Water Ground water is defined as "all water under the surface of the ground whatever may be the geological structure in which it is standing or moving."298 All ground waters are the property of the State and must be developed to beneficial use in reasonable quantities by means of a reasonable exercise of the right of prior appropriation. Early appropriators are protected in the mainte- nance of "reasonable ground water pumping levels" as established by the State Reclamation Engineer.299 All pre-existing ground water rights are validated. Exemptions apply to wells for domestic and drainage purposes.300 394 See the discussion at note 299 infra. 295 Idaho Code Ann. § 42-101 (1948). 296Id. § 42-103. "'Idaho Laws 1951, ch. 200, Laws 1953, ch. 181, Code Ann. § § 42-226 to -239 (Supp. 1969). 298Idaho Code Ann. § 42-230 (Supp. 1969). 299Id. § 42-226. This section declares that "while the doctrine of 'first in time is first in right' is recognized, a reasonable exercise of this right shall not block full economic development of underground water resources, but early appropriators of underground water shall be protected in the maintenance of reasonable ground water pumping levels as may be established by the state reclamation engineer as herein provided." 3WId. § § 42-227 and -228. |
