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Show Missouri 447 4. Ground Water The Missouri Court has classified underground water into two general categories: (a) ground water flowing in a well-defined stream and (b) percolating ground water. However, since the deci- sional law governing ground water in Missouri is very limited, ground water rights are not fully denned. Underground streams are underground waters which move through the earth in a definite and well-defined channel that is reasonably ascertainable. However, all ground water is presumed to be perco- lating, and the burden is upon the party claiming that a subterranean stream exists to prove it. If an underground stream is proved, the rights of the overlying landowners are governed by the same rules that are applicable to natural watercourses at the surface,70 which, recognizing some uncertainty in the Missouri court decisions, would seem to be the rule of reasonable use. Percolating waters are waters which ooze, seep, filter, or other- wise circulate through the subsurface strata without a definite or definable channel. A very recent decision in Missouri held that the rights of the overlying landowner in percolating water are governed by the rule of reasonable use. The court stated that under this rule the landowner may use the ground water freely, but only if his use is for purposes incident to the beneficial enjoyment of the land from which the water is taken. And this applies even if his use drains or diverts the water from neighboring lands. How- ever, an overlying landowner-including a municipality-may not withdraw percolating water and transport it for sale or use away from the land from which it is taken if the result is to impair the supply to an adjoining landowner to his injury.71 There is language in an earlier decision which indicates that the common law rule which vested absolute ownership of percolating waters in the owner of the land was applicable in Missouri,72 but the more recent deci- sion makes it quite clear that the rule of reasonable use is the gov- erning principle in the use of percolating ground water. Publications Available Institution for Water Resource Research: Water Resources Research Center University of Missouri 212 Swallow Hall Columbia, Mo. 65201 314-449-8128 Publications Snodgrass and David, The Law of Surface Water in Missouri, 24 Mo, L. Rev. 137 (1959) Comment, The Rights of a Riparian Landowner in Missouri, 19 Mo. L. Rev. 138 (1954). ™Higday v. Nickolaus, 469 S.W. 2d 859 (K.C. Ct. App. 1971) ; also see Springfield Waterworks Co. v. Jenkins, 62 Mo. App. 74 (1895). 71 Higday v. Nickolaus, 469 S.W. 2d 859 (K.C. Ct. App. 1971). 72 Springfield Waterworks v. Jenkins.62 Mo. App. 74 (1895). |