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Show GROUND WATER 51 underflow, and including underground streams, ground water classed as percolating water is not subject to regulation. o. Means of Identifying Underground Streams It was noted above that the legal doctrines relating to under- ground streams are relatively simple. However, to the extent that those doctrines require a geohydrological determination as to whether a particular underground water source is an underground stream or percolating water, then to that extent they require a very difficult determination of subterranean physical facts. Because of the difficulty involved in ascertaining the course and flow of underground water, nearly all jurisdictions resolve uncer- tainties in favor of percolating water, stated either in terms of a legal presumption or burden of proof, or both. This is to say that the law will presume that all underground waters are percolating waters, and if someone wishes to contend otherwise, he must rebut the pre- sumption and come forth with evidence to prove the existence and location of the underground stream. There are no clear rules to assay the adequacy of evidence prof- fered to prove the existence of an underground stream. It has been stated on the one hand that proof of the mere existence of an under- ground channel is not enough, but that its actual location must be known or ascertainable; and, on the other hand, that once an under- ground stream is known to exist, it will be presumed that it has a fixed and definite channel, subject only to such erosion as is caused by the flow of water through the channel. With respect to the nature of the underground "channel," it has been said that it is not necessary to show an open channel or fissure through which water freely and rapidly flows, but simply that there is an underground course with definite bounds-and that it is im- material whether the water moves through sand, gravel, or porous rock, or whether such movement is rapid or slow. Most States take the position that underground streams must be identifiable from an inspection of the surface of the ground, with- out resort to expert opinion or to data derived from underground tests or experimentation. It has been held that evidence of an under- ground stream is sufficient where it shows that a stream formerly emerged from the ground and followed a surface channel, but that stones and rocks from higher ground subsequently covered a portion of the surface channel so that the stream no longer could be seen, but could be heard if one placed his ear to the ground. Similarly, an underground stream was found to exist where a natural spring dis- appeared into the ground and reappeared at a point where a pit had been excavated to intercept the water, and where a line of bushes (of a specie usually found only along watercourses) marked the channel. Evidence has also been held adequate when it showed the origin of the water at a surface spring, which then disappeared underground, but where there was a series of depressions or sinks which marked a direct line, and which were common indicators of subsurface streams in the region. However, evidence is insufficient to prove an under- ground stream when it merely shows the underground movement of 499-242-73------5 |
