Duhaime's Law Dictionary


Underground Stream Definition:

Waters that flow underground within a reasonably water that passes through or under the surface in an ascertainable channel.

Related Terms: Percolating Water

In Higday v. Nickolaus, Justice Shangler of the Kansas City Court of Appeals adopted these words:

"In legal contemplation, subterranean waters fall into two classifications, either underground streams or percolating waters.

"An underground stream is defined as water that passes through or under the surface in a definite channel or one that is reasonably ascertainable.

"Percolating waters include all waters which pass through the ground beneath the surface of the earth without a definite channel and not shown to be supplied by a definite flowing stream. They are waters which ooze, seep, filter and otherwise circulate through the interstices of the subsurface strata without definable channel, or in a course that is not discoverable from surface indications without excavation for that purpose. The rule is that all underground waters are presumed to be percolating and therefore the burden of proof is on the party claiming that a subterranean stream exists."

 David Gretches wrote, relying on the 1923 Oregon case, Hayes v Adams1:

"An underground stream (is) waters that flow underground within a reasonably ascertainable boundaries and as a constant stream in a known and well-defined natural channel."

REFERENCES:

  • Getches, David, Water Law In a Nutshell (Minnesota: Thomson-West, 2009), page 261-262
  • Hayes v Adams 218 P. 933; NOTE 1)
  • Higday v. Nickolaus, 469 SW 2d 859

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