FUTURE NEEDS FOR DEVELOPMENT 247 



As Hutchins points out, 16 "No case has been found in 

 which the courts have gone to the extent of holding that 

 waters resulting from precipitation and still diffused over the 

 ground are subject to exclusive appropriation as against the 

 right of a landowner to intercept and utilize them while on 

 his land. . . ." In general the appropriation statutes have not 

 yet been construed by the respective state courts to the extent 

 of denning the appropriative rights in water in each phase of 

 the hydrologic cycle. 



One may wonder how two diametrically opposed doctrines 

 of water rights can exist side by side in the same state. That 

 wonder is enhanced when it is realized that these doctrines are 

 applied on the basis of an empirical classification of waters 

 which in the light of present scientific knowledge is unsound. 

 Some "classes" differentiate between waters in disregard for 

 their close hydrologic relationship, and others include waters 

 of markedly contrasting hydrologic characteristics. Water 

 rights established under a system so unsound hydrologically 

 can be highly insecure. 



The broad class of surface waters in watercourses has been 

 defined by many courts in terms that are in general agreement 

 except for minor variations to fit the particular case. As sum- 

 marized by Hutchins, the class includes "water flowing con- 

 tinuously or intermittently in natural surface channels from 

 definite sources of supply, and waters flowing through lakes, 

 ponds, and marshes which are integral parts of a stream 

 system." 17 In several court decisions the intimate relation be- 

 tween the stream and the ground water adjacent to the chan- 

 nel has been acknowledged, and the ground water, known as 

 the underflow, has been recognized as a component part of 

 the stream system. Full recognition of the hydrologic unity of 

 watercourses as defined on page 136, however, has commonly 

 been impossible because of the established practice of treating 

 surface waters and ground waters in separate categories. Real 

 definition and protection of all water rights in watercourses 



is Hutchins, W. A., Selected Problems in the Law of Water Rights in the 

 West, U.S. Dept. Agr. Misc. Pub. 418, p. 135, 1942. 

 it Ibid., p. 7. 



