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Show 159 unprecedented 10 billion gallons, about half the total pumping for all purposes, and that more than 90% of that irrigation use occurred in the 17 Western States.43 As compared with surface waters, it is more difficult to ascer- tain the occurrence and characteristics of ground water. Con- siderable expense often attaches to attempts to use the latter, and naturally surface waters were generally used first. Thus, the legal principles applicable to ground water use have not crystallized as rapidly as those applying to surface waters. Classification presents one resulting source of difficulty. Some hydrologists consider that all water in the "zone of satura- tion" should be encompassed in the single classification "ground water." ** But in the current state of the law that approach, however sound hydrologically, at once encounters difficulty if applied in legal actions. For courts have generally divided ground waters into two classifications, waters flowing in definite underground streams and percolating waters.45 Moreover, in the absence of another statutory basis, ground waters are pre- sumed in some states to be percolating waters unless it is evi- dent that they flow in a defined channel.46 And the burden of proving the existence of an underground stream rests with the party alleging it.47 In the case of defined subterranean streams, the previously mentioned 1943 survey states that:48 It seems well settled in the Western States that de- fined subterranean streams are subject to the same rules 48 Paulsen, Grouni>-Water Pboblems in the United States, Department of the Interior, Geological Survey, p. 4 (September 1949). ** See, e. g., Thompson and Fiedler, Some Problems Relating to Legal Con- trol of Vie of Ground "Waters, American Waterworks Association Journal, Vol. 30, No. 7, p. 1061 (July 1938). 48 State Wateb Law in the Development of the West, Report to the Water Resources Committee by its Subcommittee on State Water Law, Na- tional Resources Planning Board, p. 70 (1943). 48 See, e. g., Evans v. City of Seattle, 182 Wash. 450, 453, 47 P. 2d 984, 985 (1935). See also 56 Am. Jtje., Waters § 103, n. 17. 41 See, e. g., CUnchfleld Coal Corp. v. Compton, 148 Va. 437, 448, 139 S. B. 308, 312 (1927). See also 56 Am. Jub., Waters § 103, n. 18. 44 State Water Law in the Development of the West, Report to the Water Resources Committee by its Subcommittee on State Water Law, National Resources Planning Board, p. 71 (1943). 911611-51-----12 |