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Show GROUND WATER 55 from the existing well-but not in the underground channel-might have little or no effect on the existing well. Several other factors might be noted with respect to the difficulty frequently encountered in determining subterranean facts. Since approval of an application to appropriate water is, in legal effect, merely a "hunting license" to allow the applicant to proceed in his endeavor to develop unappropriated water, uncertainties with re- spect to the existence or availability of unappropriated water are usually resolved in favor of the applicant. This is so because if the applicant fails to find or develop unappropriated water, the risk and expense fall upon him alone. If he withdraws water which he believes to be unappropriated, but which subsequently is found to be a source of supply for existing rights, then he must forego use of that water, and he cannot perfect his application. By contrast, with respect to applications to appropriate from surface water- courses, it is much easier to determine the availability of unappro- priated water, and also the subsequent impact of water use there- under on other users. Thus, with respect to applications to appropriate ground water, it can be observed that (a) since the uncertainties ordinarily are greater than with surface water applications, the prospects for ap- proval of the "hunting license" are greater; (b) but, since the impact on others of water withdrawal and use under the applica- tion is also more difficult to determine, it might be years before suf- ficient data is developed to make definitive findings; and (c) in the meantime, existing rights might be materially impaired and the basin seriously overdrawn. Problems of this nature are encountered in groundwater administration, and are discussed in section 4.4, infra, of this chapter. It should also be noted that the right of eminent domain to obtain easements to transport surface water would, in most instances, be applicable to percolating water. However, if eminent domain were to be used to acquire the right to drill a well on the land of another, the applicant then must ordinarily show a "necessity" to drill at the proposed location in order to develop the water. In some instances this might require the applicant first to drill a dry hole on his own property to prove that the water could not be developed there. b. Right to Means of Diversion From Underground Basins Questions sometimes have arisen with regard to whether a water user has a right to his established means of diverting percolating water. The problem is most frequently encountered when a well is drilled into an underground artesian basin, where the hydrostatic pressure causes the water to flow to the surface without pumping. Nature has thus furnished the delivery of the water as a result of the pressure, but as the artesian basin is developed, the pressure will be reduced, and the probability is that everyone using water from the basin ultimately will be required to pump. The legal question is whether the early users who enjoyed artesian pressure as their means of diverting the water from the underground are to be protected, so that subsequent users either will be enjoined from drawing |