I am of the opinion that the water in controversy in this case, is not shown to be the subject of appropriation. It is not public water. The stipulated facts show nothing more than sufficient water on plaintiff's land to maintain the land in its natural state as to foliage. There is no showing of any flow, channeled or otherwise; no showing of any lake; nor any showing of an artesian basin. Call them percolating waters, if you desire, or diffused waters, there is not enough movement to them to carry them from one part of plaintiff's land to another, not to mention the fact that they do not naturally reach defendant's land. For all *Page 234 we know, the consumption of the water by the natural foliage uses up all water of practical value from the standpoint of quantity.
I don't think an owner of land is in a comparable position to an owner of dehydrated food. He doesn't own just the solids. It is not exaggeration to say that the naturally green condition of the land may have been a big inducement to its use or acquisition. If that naturally green condition is due to conditions purely local to that land, I think the owner owns that condition. The prevailing opinion recognizes this, and with that I agree. To hold otherwise seems to mean that each purchaser of land must start digging around to see what makes his land green, and even though he finds it merely slightly damp, he must initiate proceedings to keep it that way, or else suffer its dehydration at the hands of others.
The burden should be upon the other party. Let the latter show that the water upon the owner's land is part of the accepted classes of public waters — flowing waters percolating and/or channeled, above or below the surface, or a lake or an artesian basin; and, in making that showing the word "flowing" should mean a substantial flowing, not just an insignificant rise and fall in diffusion incident to the increase or decrease of rainfall.
As the stipulated facts in this case do not show any condition, I have designated above as flowing or as a lake or basin, I believe the decision of the lower court should be affirmed. However, as a majority do not agree with me as to terminating this matter now, I concur in the disposition of the case as directed by the prevailing opinion.