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Show 50 ground water 4.2 Underground Streams a. Ownership Concepts As a general proposition, it can be said that underground waters are classified either as underground streams or as percolating waters. Underground streams are those which flow in known and defined or ascertainable channels, whereas percolating waters are those which ooze, seep, or percolate through the earth, or which flow in unknown and undefined channels. Ownership doctrines relating to underground streams flowing in known and definite underground channels are relatively simple. These underground streams are treated essentially the same as surface streams, whether the jurisdic- tion is one that follows the appropriation or riparian regime. Thus, in most riparian States, one who owns land overlying an under- ground stream may make a reasonable use of the water, even though such use diminishes the underground flow. But if the diminution causes injury to other riparians, then the use might be found to be unreasonable, and therefore illegal. Similarly, a user ordinarily is not entitled to waste or pollute an underground stream to the dam- age or injury of other riparians, nor is he entitled to destroy the un- derground stream as a source of supply to others. In appropriation jurisdictions, the right to use water in under- ground streams is governed by the same rules applicable to surface streams-physical diversion of the water and application of it to a beneficial use. However, the procedures followed in perfecting the appropriation might differ, since most appropriation States require all underground wells to be drilled pursuant to application to ap- propriate underground water. The difficulty of determining whether the underground source of supply is in fact an underground stream, rather than percolating ground water, is discussed in Section 4.2.b., infra, of this chapter. If the source is an underground stream, then the same criteria are applied in reviewing the application as are ap- plied to surface watercourses; e.g., there must be unappropriated water which can be diverted and used by the applicant without interference or injury to the holders of existing rights. Most appropriation States allow private parties to exercise the power of eminent domain to obtain easements or rights-of-way for ditches and canals across private lands of others, so that surface waters can be transported to the place of use. This power presum- ably applies to underground streams, so that a private person could condemn across lands of another not only a surface easement to the point of prospective diversion, but also a vertical easement to drill a well and withdraw water from the underground stream. This is in part analagous to the condemnation procedures whereby an appro- priator may obtain an easement across the lands of another for access to a surface spring located on the latter's land, in order to appro- priate the waters of the spring itself. As a practical matter, the major consequence of the underground- stream-versus-percolating-water dichotomy arises in administration and management of ground water. Where State administrative jur- isdiction over water extends only to watercourses, including their |