any right to the water in perpetuity. But while no right can thus be acquired by prescription against the originator of an artificial stream of a temporary character, yet so long as he continues to use the canal for the purpose of drainage a prescriptive right to the water may be acquired against those through whose land the canal runs. So also the right to the use of water flowing through an aqueduct or pipes for domestic purposes may be acquired by prescription.3 IV. Nature and Extent of Rights Acquired in Subterranean Waters in the Arid West. § 298. Subterranean Water-Courses-Percolating Waters. In a previous chapter we touched upon the subject of subterranean and underground water-courses and percolating waters, so far as was necessary to define the nature of those waters. We will now discuss the nature and extent of rights that may be acquired in and to those waters in the western States and Territories. The general rule may be stated thus: Where subterranean waters are running in a defined channel no distinction exists between waters so running under the surface or upon the surface of the earth. They are such property or incidents to property as may be acquired by grant, express or implied, or by appropriation, and when rights in them are thus acquired the owner cannot be divested of his rights by the wrongful acts of another. But, on the other hand, waters merely percolating through the soil, without a defined channel, are not governed by the same laws that surface streams are. Water percolating through the soil belongs to the owners of the freehold where it is found." 1 Arkwright vs. Gell, 5 M. & W. 203; Gaved vs. Martyn, 19 C. B. 732. Brown vs. Ashley, 16 Nev. 317, where it was held that rights in water coming from a spring by 2 Ibid. Greatrex vs. Hayward, percolation are acquirable by prior & Exch. 291. 3 Dority vs. Dunning, 78 Me. 381. 4 See Ante Sections 48, 49, 79, 80. 5 Cross vs. Kitts, 69 Cal; 221; 10 Pac. Rep. 409. appropriation, and the appropriator cannot be divested by a subsequent owner of the soil by express grant. 6 Cross vs. Kitts, 69 Cal. 222; 10 Pac. Rep. 409; Hanson vs. McCue, In a recent case in California' the Court held that where a spring is fed solely by percolating waters which seep into it from swamp or wet land surrounding the same, and not by any running stream of water, there is no water at such spring to which the right of use can be acquired either by statutory appropriation or by adverse user. And no action will lie in favor of one who has collected the water at the spring in a reservoir and transmitted it by a pipe for use against one who has diverted the water from the reservoir by means of a tunnel and ditch constructed above the reservoir on his own land for irrigation and domestic use. The law controlling the rights to subterranean waters not running through a channel or defined course is very different from that affecting the rights of surface streams. In former cases the water belongs to the soil, is part of it, is owned and possessed as the earth is, and may be used, removed and controlled to the same extent by the owner, and no action will lie for injuries caused by cutting it off.2 3 § 299. Same.-Authorities Discussed.-In a recent case decided in the Colorado Court of Appeals & the Court held that if water reaches a certain point by either percolating its way through the soil or by subterranean channels, and at that point is duly appropriated, the appropriator has property in it of which he cannot be divested by the owners of the soil through which the water courses. In that case the trial court instructed the jury as follows: The water that percolates through the soil without an evident and well-known channel is regarded as a part of the land, and belongs to the owner thereof, and he may make such use 42 Cal. 303; Roath vs. Driscoll, 20 Conn. 540; Ballard vs. Tomlinson, 24 Am. Law. Reg. 636; Mosier vs. Caldwell, 7 Nev. 363; 64 Am. Dec. 727. 1 Southern Pac. Ry. Co. vs. Dufoor, 95 Cal. 615; 3 Pac. Rep. 783. 2 A person is not justified in digging wells so close to a stream that the water necessary percolates therein, thereby diminishing the water previously appropriated by other parties. McClellen vs. Hurdle (Colo. App.), 33 Pac. Rep. 280. 3 McClellan vs. Hurdle (Colo. Ct. of Ap.); 33 Pac. Rep. 280. * * * of the water as he sees fit while it remains on, in or under his land." Mr. Justice Reed, in rendering the opinion of the Court of Appeals commenting upon the instruction, said: "It is perfectly safe to say that it is a matter of no moment whether water reaches a certain point by percolation through the soil, by a subterranean channel or by an obvious surface channel. If by any of those natural methods it reaches the point and is there appropriated in accordance with law the appropriator has a property in it which cannot be divested by the wrongful diversion by another, nor can there be any substantial diminution. To hold otherwise would be to concede superior owners of land the right to all sources of supply that go to create a stream, regardless of the rights of those who previously acquired the right to the use of the waters from the stream below. Strictly and technically the instruction should not have been given. Streams of the character described in the complaint are frequent throughout the entire arid portion of the continent, and their existence and peculiarities cannot be ignored, being well defined surface streams with well defined channels for long distances, then for miles sunken until uniting with another stream, but having topographically all the physical characteristics of a streama bed, banks, valley, etc., at times of high water, being its entire length a running surface stream, and in low water or droughts running short distances, standing in pools, sinking into gravel or loose material in its bed, percolating through or passing under it, and reappearing at some point below, but still delivering at different points a greater or less volume of water-sometimes at the surface, sometimes much below. It is not necessary to legally define water-courses having these peculiar characteristics. They are, as conduits of water, such source of supply as to furnish an appropriator a legal basis for the appropriation of the available water. In the case of a running surface stream the question of appropriation is easy of solution; but not so in a sunken stream, particularly at a point where the water is an indefinite distance below the surface. Under such circumstances it becomes at once apparent that to appropriate and utilize the waters an impervious dam must be constructed and carried down to an impervious base to stop and retain the subterranean water and raise it to the ditch. Whenever such adequate provision is made any act diminishing the quantity that would naturally reach the dam and add to the supply up to the limit of the appropriation-whether by diversion upon the surface, the sinking of wells and using pumps or otherwise, would be actionable." It seems to us that the above rule is the correct theory upon the subject. Upon the subject of riparian rights on subterranean streams see the case of Meyer vs. Tacoma Light & Water Co. decided by the Supreme Court of Washington on January 26, 1894. In this case the Court held that where the waters of a stream gradually disappear and percolate through the sand, within limits not at all defined except by the valley in which the stream is located, over an impervious substratum, thus finding their way to a lake, a riparian owner on an outlet to the lake has no right to have such underground flow protected.1 135 Pac. Rep. 601. CHAPTER X. Ditch and Canal Companies. Section. 300. Contents of chapter. I. UNINCORPORATED DITCH AND CANAL COMPANIES. 301. Tenants in common. 302. Tenants in common and copartnership distinguished. 303. Authorities on subject. 304. Unincorporated ditch com panies-rights of majority 305. Authority of individual mem- 306. Liabilities and rights of indi vidual members of unincor- II. PRIVATE INCORPORATED 307. Incorporated ditch and canal 308. Irrigation companies in gene- III. POWERS OF DITCH AND CANAL 309. Power of acquiring rights of way. Section. 310. Power of acquiring water rights by appropriation. 311. Same.-Authorities. 312. Same.-Power of acquiring water-rights by legislative grants. 313. Same.-Continued. IV. DUTIES OF DITCH AND CANAL 314. Construction of works by 315. Same.-Authorities dis cussed. 316. Same.-Duty as common carriers. 317. Duty of ditch company to furnish water to consumers. V. LIABILITY OF DITCH AND 318. Liability of companies in 319. Company's liabilities for injuries to stockholders rights. $300. Contents of Chapter.-During the past few years the growth and importance of irrigation are evidenced by the vast number of ditch and canal companies organized in all the States and Territories in the arid west. These companies |