The Evening statesman. [volume] (Walla Walla, Wash.) 1903-1910, 1903-12-30

state of Washington, to-Wlt: All the
water flowing or being underneath or
upon and all the springs. under-foW
or water in or upon the following ue-
scribed land in Walla Walla county
state of Washington, to-Wlt: 'Iheh
follows description of land) together
with the privilege of going upon ana
entering upon the above described
lands and upon every part thereof for
the purpose of excavating and taxing
therefrom the water there lying or De-
ing or flowing therefrom as springs OF
as undertiow together with the priVll-
ege of making excavation on any part
of or anv place upon the above describ-
ed lands for the purpose OF deFelopns
said water and water privileges and
also the right to eXcavate upon sald
lands for the purpose or cOnuuctilS
away said water from the same and to
maintain excavation and drains Tor
said purpose, these conVeyances pelng
made however subject to the condl-
ton that the drains shall be rehlled
within a reasona BILE time after their
construction so as to leave the land IN
as good condition for cultivation as the
same now is, so far as it may be rea-
sonably practicable to do so. rms
conveyance is also subject to the con-
dition that the party of the first part
reserves from this conveyance Suin-
cient water from Mill creek and its
tributaries, known as the Moore ditch,
yellow Hawk creek and Garrison creek
to irrigate the aforesaid lands, pro-
vided however that in so doing the
party Of the first part shall not inter-
fere with the flow Of water in said
springs and with the subterranean
flow hereby conveyed and 50 that the
same shall not be interfered With or
destroyed, and provided further that
the water to be so used FOR irrigation
shall be taken solely from the water
naturally flowing from said creek"
*
This is the wording of the original
conveyance from Thomas and the
language is SO plain as to render it
difficult to improve its meaning by
constituting the same. The words sim
ply mean what they say. The city may
go upon said lands, dig excavations
and drains for the purpose of inter-
cepting the underfoW and the springs
on said land and for the purpose of
forming conduits TO carry the same
away. The city may excayate and dig
upon any point of said lands even
though by so doing it may destroy
trees or crops growing thereon. The
only limitation to the city'S rights is
thai it must refill all excavations with
in a reas asOnable time after their con-
structiCn so as to leave the land in as
good condition as it was at the incep-
ton of the work so far as it can with
reasonable practicability.
We have left for our considera ton
the surface of the Thomas land. These
are known in law as subterranean
waters and are divided into two
classes: First, waters flowing in sub
terranean channels or streams: second.
percolating waters. We will first CON
slider waters flowing in subterranean
streams or channels.
S5ubterranean streams or channels
have been varioualy defined. In
Chase Moore vs.. Richards. I II. L..
cas-. $40. Lord WensleyGale spoke Of
a subterranean stream as An under
ground stream lying in a known and
defined channel" and again Lord
Chelmsford in regard to the same spoke
of Water flowing in certain and de-
fined course in a known and subter-
ranean channel
Cases might be supplied indefinitely
in support of the foregoing PROPOSE
ton. 1t therefore follows that what
We have previously said with refer
ence to the citys right to use waters
flowing in surface streams on the
Thomas place applies with equal force
to waters flowing thereon in subter-
ranean streams or channels. The city
for the purpose of supplying its inhab-
vert either the streams flowing on the
surface or streams flowing in subter-
ranean channels for any such purpose,
as against any proprietor below the
city's point of diversion to which such
waters naturally flow.
We now come to the considera ton
of the last remaining class of waters
on\ said lands, which we have pre-
viously described and classified as
"percolating waters" Percolating wa
ters are most easily defined as being
any sub surface waters which do not
flow in such we'll defined channels as
TO entitle them to be classed as sub
terranean streams of water or las
water percolating the soil beneath the
surface without a definite channel or
lin courses which are unknown or un-
aScertainable," or las percOlating
through underground strata which has
no certain course, no definite limits,
b,;t which oozes through the soil in
Continued on Page Three.)