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Show 52 GROUND WATER water, such as interference by one well with the water in another, or with artesian pressure, or with the flow of springs. The foregoing discussion might seem to suggest that underground streams are common. To the contrary, they are quite rare, since nearly all ground water percolates through the earth, and is not con- fined within "definite, known, and ascertainable" subterranean channels. But most writers dismiss underground streams too quick- ly, assuming that they are of no current importance in ground water law. This is a mistake. For, even though the law was perhaps unwise in creating the distinction between underground streams and percolating ground water, the fact is that underground streams do exist in both Eastern and Western States, and a considerable body of case law has developed based on that distinction. Therefore, while underground streams are not common as a matter of geohydrology, when that issue arises in a legal context it is important to recognize the legal implications of the distinction. 4.3 Percolating Waters a. Nature of Rights of Use As already mentioned, percolating waters ordinarily are defined as those which ooze, seep, or percolate through the earth, or which flow in unknown and undefined channels. Rights to develop and use percolating water, or to interfere with its subterranean flow, have evolved from early declarations of absolute ownership by the owner of the land in which such waters are found, to the modern view adopted by most of the States, that the public interest requires some measure of conservation and regulation of percolating waters. Most ground water is percolating water within the legal definition, and most of the litigation and problems of administration arise in con- nection with this class of water. The various ownership concepts re- lating to percolating water are noted below. (1) ABSOLUTE OWNERSHIP Before the science of ground water hydrology was very well un- derstood, it was assumed that percolating water was a part of the land in which it was found, and that the owner of the land owned such water in the same manner that he owned the trees and rocks on the land, or the oil, gas, and other minerals found beneath the sur- face. Accordingly, the early cases declared that the landowner had an absolute right to use such water, or to interfere with its flow, and it made no difference whether he acted wastefully, wantonly, or maliciously-just as it made no difference whether he wastefully or maliciously chopped down a tree on his land. (2) REASONABLE USE It was not long before the courts recognized that the rule of ab- solute ownership was not very well suited to percolating water, and that a strict application of the rule often caused harsh and unfair results. Accordingly, limitations were imposed upon the right of a |
