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without incurring liability to any lower riparian owner. It insisted, however, that the city was not a riparian owner under the stated rule inasmuch as it, a corporation, had no natural wants, that the city of Emporia had not been taking water for its own use but, instead, for the purpose of supplying its citizens with water for their needs. In addressing itself to one of the city's argu- ments, the Court recognized that as a general prop- osition the law takes no cognizance of percolating water. As the reason for the general rule, it stressed the impossibility of proving with reasonable cer- tainty the sources of supply. It went on to state, however, that the doctrine is well settled that per- colating water belongs to the owner of overlying land as much as the land itself or the rocks and stones found in it and that he may take the water which might otherwise percolate into his neighbor's lands. The Court recognized, however, that a party may not run pipes into a man's mill-pond, or dig a channel to it, and thereby divert water. "May he accomplish the same result," the Court asked, "by digging a well upon the very banks, and so near thereto that the water oozes out from the pond into the well, and be beyond the reach of the law so long as he keeps a wall of earth between the well and the pond?". In giving a negative answer to its question, the Court wrote: . . . Of course, the mere proximity of the well to the stream does not prove the abstrac- tion; there may be other subterranean sources of supply; and he who alleges the abstraction has the burden of proof, and, if he fails to estab- lish the fact, he fails to show a right to relief, and, if he asks compensation for the abstraction, he can recover only for the amount which he is able to prove. Here the fact is found, and upon that finding plaintiff is entitled to relief.46a Twenty years later, in a case in which a lower riparian owner successfully obtained injunctive re- lief restraining the diversion of water by an upper riparian owner onto a sand bar, a diversion of no beneficial use, the Kansas Supreme Court strongly reaffirmed the riparian doctrine.47 It wrote: Some doubts may have existed in the ancient ~~__.-_I___.__.._~I._ "1. r .. \..UIlIlIlUIl IdW d~ LV Lilt: flgIll 01 an upper flpaflan proprietor to appropriate all of the water flow- ing through his land, whether necessary to his reasonable purposes or not; bu uhere can be no doubt now that he has no right, as against a lower proprietor, to appropriate any more of 46ald. at 25 Kan. 609. 47Campbell v. Grimes, 62 Kan. 503,64 Pac. 62 (1901). 46 the water of the stream than is needed for his own beneficial uses. The uniform holdings of the courts are that he has no such right, and upon the non-existence of such right plans for the equitable division of water among riparian proprietors have been devised by statute in all of the states where irrigation can be success- fully practiced. (Kinney, Irr. !i~165, 166.)47a In 1905, the Supreme Court of Kansas gave the riparian doctrine one of its strongest moments.48 In the case decided in that year the defendants were upstream irrigators riparian to Rose Creek. The plaintiff was a landowner riparian to Smoky Hill River, which was fed by the upstream Rose Creek, and was a prior irrigator. The years 1900 and 1901 were excessively dry and the shortage of water precipitated a dispute between the parties. In response to the plaintiffs litigious efforts, the trial court awarded darpages and "the superior right to substantially the entire flow of Rose Creek in unpropitious seasons." In doing so, it applied the appropriation doctrine although none of the parties had ever attempted to comply with any of the irrigation statutes pertaining to the appropria- t:on of wa ter. In a strong, lengthy opinion by Justice Birch, the Supreme Court of Kansas, in re- versing the judgment of the trial court. concluded that the common law riparian doctrine, not the doctrine of appropriation, pertained in Kansas. Under this doctrine, said the Court, the riparian owner's use of water for irrigation purposes must be reasonable under all of the circumstances. More- over, the Court insisted, the use right must be ex- ercised with due regard to the equal right of every other riparian owner along the stream. The Supreme Court of Kansas went on to re- cognize that the doctrine of prior appropriation may exist in the same jurisdiction alongside the common law riparian doctrine. It insisted, how- ever, that prior to the Kansas Irrigation statutes of 1886, which authorized the acquisition of righ ts on the basis of appropriation neither statute nor court decision had recognized the appropriation doctrine. Any local custcm based upon principles of water appropriation, it said, was invalid, which meant tha t no wa tei" rights recognized by the ReviSed Statutes of the United States, sections 2339 and 2340, had ever vested in Kansas.49 It implied, however, that water rights might have become vested after 1886 upon compliance with the 1886 irrigation statutes. 47ald. at 505,80 Pac. 62. 48Clark v. Allaman, 71 Kan. 206,80 Pac. 571 (1905).