OCR Text |
Show 740 GROUND WATER RIGHTS IN SELECTED STATES NEVADA Court Decisions Definite Underground Streams In an early case involving the right to use water flowing through the ground from a spring which constituted the source of a creek, the Nevada Supreme Court discussed the rules of law applicable to ground waters.343 The subter- ranean flow in question was not a definite underground stream. With respect to such streams the court stated: No distinction exists in the law between waters running under the surface in defined channels and those running in distinct channels upon the surface. The distinction is made between all waters run- ning in distinct channels, whether upon the surface or subter- ranean, and those oozing or percolating through the soil in vary- ing quantities and uncertain directions. Percolating Waters The supreme court held in an early case that water percolating underground in "no known or defined course" belonged to the owner of the land, and that such owner was not responsible for injury caused to others by reason of his diversion of the water, even though the percolating water was the source of a spring on the land of someone else.344 The rule of absolute ownership of percolating waters was affirmed in Strait v. Brown in 1881.345 However, the right of a landowner to divert water from springs on his land, the waters of which constituted the source of a creek but passed thereto either by percolation or conveyance by unknown subterranean channels, was denied by the court. This decision was reached because the diver- sion was made directly from the springs after the water had appeared on the surface. This taking would have the same effect as if the water were taken from the stream itself. The court reasoned that none of the reasons which supported the theory relating to percolating waters existed under these conditions.346 Ground Water Statutes Legislation relating to ground waters was enacted in 1939 and has been amended at successive sessions of the legislature.347 The act provides that all 343Strait v. Brown, 16 Nev. 317, 321 (1881). 34AMosier v. Caldwell, 7 Nev. 363, 366-367 (1872). ^Strait v. Brown, 16 Nev. 317 (1881). 344 In this situation, there was no uncertainty as to the existence of the water or the quantity that had been taken from streams against the interests of the appropriators of the stream. The spring waters were held to be subject to the rights of the stream appropriators, even though the means by which the waters were conveyed from springs to creek were subterranean and not well understood. 347Nev. Rev. Stat. §§ 534.010-.190 (Supp. 1967). |