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Show 756 VIRGINIA court has recognized the common law theory of absolute ownership of percolating water by the owner of the land where the water perco- lates ;99 but, in so doing, has noted that the "trend of modern opinion" is in favor of the "reasonable use" rule, which the court defined as follows: The "reasonable use" rule does not forbid the use of the percolating water for all purposes properly connected with the use, enjoyment and development of the land itself, but it does forbid maliciously cutting it off, its unnecessary waste, or withdrawal for sale or distribution for uses not connected with the benefical enjoyment or ownership of the land from which it is taken.100 It seems very likely that the court, when called upon to elect be- tween the rule of absolute ownership and the rule of reasonable use, will select the latter. The court has already noted that the "American rule" is one of reasonable use,101 and has shown disfavor toward malicious and wasteful uses of water.102 Further, the legislature has set forth a policy condemning waste of either surface ground water,103 and requires unused artesian wells to be capped.104 B. UNDERGROUND STREAMS If water under the ground is not percolating water within the definition set forth in the preceding section, then it may be part of an underground stream or watercourse, and thus subject to the same legal rules which are applicable to use of water from surface watercourses.105 An underground watercourse will exist where: * * * water flows in a stream with a well defined channel, and its existence, location, and course is known or knowable from external facts.105 Quite obviously, it is difficult to define the pattern of flow beneath the ground. The court has said that: In order to charge the owner of the surface with liability for disturb- ing the flow of an underground stream, its existence, location, and flow must in some way be made to appear from the surface of the earth; and the ap- pearance must be such only as would be reasonably discoverable by men of ordinary powers and attainments. No resort to scientific opinion is neces- sary.107 Therefore, it seems that if men of ordinary intelligence and per- ception cannot detect the existence and course of an underground stream from the vantage point of a surface examination, the under- ground water will be presumed to be percolating. However, the court has noted that evidence of an underground stream might in- clude surface depressions extending in a line on either side of a spring of considerable volume, or a stream which sinks into the ground and then reappears some distance away.108 99 Id. at 451-52. 100 Id. 101 Id. /¦i™£vee' *¦§¦> Miller v. Blackrock Springs Improvement Co., 99 Va. 747 40 S E 27 ^sU a62 l-h* W' C°al €°rP' V" BalVer> 20° Va- 18' 104 S-B- 2d ™ <*««)• 10*Sec; 10^-117.1. 106 See section 3.2.a of the chapter, supra. ,™ OUnchfteld Coal Corp. v. Compton, 148 Va. 437, 139 S.E. 308 (1927) 107 Id. at 449. *» Id. |