Water Bights—Appropriation—Subsurface Flow — Subjection to Superior Bights.—The subsurface flow of streams in this state may be appropriated for useful purposes by proper means for the development and user thereof, with due regard to the prior-rights of others in the stream. Such appropriation is legal only in so far as it does not imperil or impair the superior rights of others in the surface flow or in the subsurface flow of the stream.

In.—Notice of Appropriation of Subsurface Flow—Proper Prosecution of Work—Priority of Bight.—An appropriation of a specified quantity of the subsurface flow of a stream may be made by a, valid notice of appropriation thereof, followed by a proper prosecution of the work for the development and actual appropriation of that quantity; and such appropriation will take precedence of an intervening actual appropriation, of the subsurface flow made by a subsequent appropriator prior to the completion of the work.

Id.—Combination of Superior Bights—Separation as to Subsequent Appropriator—Change of Place of Diversion.—The rights of persons first appropriating all the surface flow of a stream cannot be changed or altered by compromise and. combination with the rights of a first appropriator of five thousand inches of the subsurface flow, as against a subsequent appropriator of the subsurface flow. Bach appropriation must rest upon its own merits, so far as respects the right to change the place of diversion of the surface flow and subsurface flow to the detriment of the subsequent appropriator.

Id.—Bights of Appropriators of Surface Flow—Injurious Diversion of Subsurface Flow—Injunction.—If a subsequent appropriation of subsurface flow does not impair the rights originally acquired by prior appropriators of all the surface flow of the stream, they cannot change their place of diversion to the injury of the subsequent appropriator. But, if it appears that the subsurface flow is necessary to protect and support the surface flow, and that any diversion thereof weakens and injures the bed of the stream and diverts the surface flow, the prior appropriators are entitled to an injunction to restrain- the subsequent appropriator from taking the subsurface flow; and it cannot be material to him at what place the surface flow may-in the future be diverted.

Id.—Bights of First Appropriator of Subsurface Flow.—One who liasfirst made a valid appropriation of five thousand inches of the subsurface flow of a stream is entitled to change his place of diversion of that quantity of water to a point above the head of the tunnel of a subsequent appropriator, and the subsequent appropriator cannot be heard to complain thereof.

Id.—Construction of Findings—Subsurface Flow—“ Percolating Water.”—Findings which clearly show that the lower flow of a stream is not an independent subterranean branch thereof, and which are intended to support an injunction granted to restrain the plaintiff from Injuriously diverting its waters by a tunnel extending into the “saturated mass” of gravel in the river bed, and which state that the water diverted “is the percolation from the surface stream, and is withdrawn from the surface stream which defendants had appropriated,” that “the water from the surface flow of the stream percolates through this gravelly bed of the river,” and that “this lower or percolating water is directly connected with the surface flow, and protects and supports, and is necessary for the protection and support of the surface flow,” et cetera, are to he construed, not as referring to such “percolating water ” as may be rightfully impounded by the owner of the soil, hut as importing that plaintiff was withdrawing the waters of the stream from within its bed and channel, and from its subsurface flow.