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Show 588 NORTH DAKOTA 3.6 Springs Spring waters are public waters of the State, which are described as all surface and ground waters within the State, except for dif- fused surface waters. As such, these waters are covered by the ap- propriation system of the State, which is discussed in the preceding sections.69 Bottled spring waters are considered beverages and are controlled by the food and drug laws.70 3.7 Diffused Surface Waters Diffused surface waters are expressly excepted from the appropria- tion system,71 and are, therefore, presumably privately owned. On the question of the liability of an upper landowner to a lower land- owner in drainage cases, the North Dakota Supreme Court recently adopted the reasonable conduct theory in connection with diffused surface waters.72 Disclaiming any intention to change North Dakota law on this subject, the court declared that: The issue of reasonableness or unreasonableness becomes a question of fact to be determined in each case upon a consideration of all of the relevant cir- cumstances, including such factors as the amount of harm caused, the fore- seeability of the harm which results, the purpose or motive with which the possessor acted, and all other relevant matter.™ 4. Ground Water Ground water was considered to be privately owned for many years, but the present water code defines public waters to include "waters under the surface of the earth whether such waters flow in defined subterranean channels or are diffused percolating waters."7* There is thus no present distinction between underground streams and percolating waters, and both are subject to appropriation for beneficial use under the same procedures applicable to the surface waters of the State (see section 3.1, supra). The constitutionality of the statute has been upheld in a case which denied a subsequent application and approved a prior application, even though the sub- sequent applicant had placed the ground water to use prior to filing his applications.78 A special statute regulates artesian wells and provides that every artesian well must be controlled by a valve and the flow regulated to provide only the quantity of water which can be beneficially used and to prevent the artesian flow from running onto the land of another.76 Also, precautions must be taken in drilling artesian 89 Sec. 61-01-01. TOSec. 19-08-02. n Sec. 61-01-01(1). Publicly owned waters to include, however, "surface waters, whether flowing in well defined channels or flowing through lakes, ponds, or marshes which constitute Integral parts of a stream system, or waters in lakes . . ." For a defi- nition of watercourse, see note 40. "Jones v. Boeing Co., 153 N.W. 2d (N.D. 1967), 44 N.D. L. Rev. 567 (1968). 78 Id. at 904. The Jones case and earlier cases in North Dakota are analyzed in R. Beck and B. Bohlman, note 4, p. 7. "Sec. 61-01-01. ™Baeth v. Hoisveen, 157 N.W. 2d 728 (N.D. 1968). TCSec. 61-20-01. |
